omission

Chapter I1 relevant
inductive
L E G A L REASONING 'F al la ci e:
meaning
s
o r les
MEANING O F'L OG IC ' omissio!
T h e word logic' i n Greek means thoug ht. Logic' is the science fo argume
correctthinking.The subject-matter of logic' is thoug hts and its goal si
goal.
ughts should be to reach the
tru th.Lo gictea che s u s how our tho S C IE N
G
T h i n k i n g i s an intellectual activity and it has three processes:
(iii) reasoning.
sim pleapp reh ens ion , (ii) judgment, and decisic
I nsimple apprehension, we understand what a thing is and give a reso
lv

namet oit. For example, we understand what a 'criminal' is, and as a result contin
we are able to get an
o fo u r under standi ng whenever we hear the word, proce
the p
i m a g e o f a pers on who com mits crimes. cases
Judgment is a process of thinking by which the mind affirms or denies c O m E
two ideas either
some thing of some thing else. It is a process of conne cting expe
and
affirmatively or negatively. Take for example, the two ideas 'man'
'honest, we can connect them either affirmly, 'man is honest' or negatively, REL
'man i s not honest'. This affirmative or negative conclusion that we arrive
a t i s called a 'Judgment' law
Reasoning is a process of passing from certain known judgments to a met
n e w judgment. While reasoning, we may proceed from particular to general dov
(inductive) or general to particular (deductive). m e

F a l l a c i e s i n Logical r e a s o n i n g
Reasoning should be without fallacies. Fallacies are statements that
might sound reasonable or sufficiently true but are actually flawed or
dishonest. They are arguments which provide poor reasoning in support of
its conclusion. They are kinds of errors in reasoning. Fallacies differ from
other bad arguments in that many people find them psychologically
persuasive. That is, people will mistakenly take a fallacious argument to
provide good reasons to believe its conclusion. Fallacies are most common
when people get overly emotional about an issue. The thing about fallacies
is t h a t in t h e hea t of the moment they can seem persuasi
ve, but they are
errors in reasoning and they do not reliably lead to the truth. Fallacies are
often concerned with causuality, which is not strictly addressed by logic.
They may also involve implicit (or unsta ted) assumptions. Fallacious
arguments may take advantage of social relationships between
people.
However, fallacies can often seem obviously bad.
Fallacies can be categorised in a number of ways. For example formal
fallacies' rely on an incorrect logical step, 'informal fallacies' do not
rely
incorrect logical deduction. Fallacies may be categorised as fallacies onof
relevance', 'competent fallacies', 'fallacies of ambiguity' and 'fallacies of
(50 )
 LEGAL REASONING
51
omission. 'Fallacies of relevance' appeal to evidence or examples that are not
relevant to t h i s a r g u m e n t a t h a n d .
'Co mp ete nt fall aci es' are
inductive and deduc tive reaso ning or in syllogistic terms that fail toerroverlap
ors in
Fallac .
ies o f ambiguity' occur with ambiguous words o r phras es, the
sc
ie meaning s of which shift and change in the course of discussion. Such more
nc or less subtle changes can render argumen ts fallacious . 'Fallacies of
s e,
g omission' occur because the logician leaves out necessary material in an
goa oali
l. s argument or misdirects others from missing information.
es
se
s: SCIENTIFIC LEGAL REASONING
ag Legal reasoni ng refers to the process of thinkin g to come to the
a
ive decision relating to Law. Law is a means of social control that attempts to
re
s
a resolve current conflicts, to direct current activity while maintainin g
) g ult continuity w i t h t h e past, a n d to control the future by laying down
et
an procedures, approaches and theories. Every decision has to take into account
•den the past decisions and statutes, the present position of the parties to the
i
5e i t h es cases, a n d its own impact on future activity. There are four basic
in e r
' and
components in legal reasoning as applied to the legal process logic, justice,
e x p e r i e n c e a n d policy.
atively,
arri RELATION O F L O G I C TO LAW (LEGAL LOGIC)
ve
The efficiency of law depends not upon what law is treated but how
is to a law is treated. One method of treating the subject might be called the
method of logical analysis. In this method, the given hypothesis is broken
eneral down into its components and implications. Logical thinking is a valuable
mental training. Logical method follows the following stages in its process.
(i) First, the method oflogical analyses starts with a given concept as
embodied in a definition. Then it proceeds to unfold its
that
implications. The pattern into which the material falls is implicit
id or
i n t h e definition.
r t of
(ii) Secondly, logical manipulation will only reveal what has been put
from into a premise. The interesting part is the analysis on which it is
cally based. We m u s t know why certain ideas leaving others were
t to chosen and linked as they are in a definition.
non
(iii) Thirdly, lack of one proper useful definition of concepts in law
cies l e a d s o f t h e misplacement of particular definition. However,
are differe ntdefinit ions are useful for different purposes. Different
are d e fi n i t i o n sa r e useful for looking at the subject matter from
to
diffe rent poin ts of view. Thus, definitions of law with reference
jUS s t r u c t u r eo r functi on are all useful . A defini tion may reflect the
le. p o i n to f v i e w o f t h e user.
to the details
( i v )Fou rthl y, eve ry definition is only an approximation
nter to it and clarifying
o fi t ssub ject -ma tter. I t is useful as a poi
2 .

A lawyer will find a

t h eproposedu s e of a t e r m by the definition. l
definitionusef ul i f i t tallies wit h that of judges. If the logica
it is
with that of judges,
f an aly siso f definition fai ls to correspond
misleading.
 DOLOGY
52 LEGAL RESEARCHMETHO

(v)Fifthly, the thought provoking potentialities of definitions have

consistedmostlyi n evoking critieal responses while hte term

p e r s u a s i v e possib
ilities of definitions would require agreement whet
a m o n gj u r i s t s . eval
(vi)Finally, though deductive analysis is a valuable one, there si an star
hod ofsynthesis.
l met o f d
a l t e r n a t i v e con stru ctiv e or emp irica
Thethinking process is based on a special kind o freasoning. nI
additiont oanalysis and synthesis, reasoning is used. It is called the logic s o u

o f justification' This i s the interpretation and manipulation within and

permissiblelimits of the law so as to justify decisions which are thought ot

rul
i n t
b er i g h t .
ful
Some legal persons deprecated logic in legal opinions and questioned jur
i t svalues. They objected to employ logic in the law. According to Justice
Holmes, "The life of the law has not been logic: it has been experience." l a
He felt"necessities of the time, the prevalent moral and political theories, de
institutions of public policy, avowed or unconscious, even the prejudices el
which judges share with their fellow men, have had a good deal more to do
than the syllogism in determining the rules by which men should be
governed." He further states, "..the whole outline of the law is the result of
a conflict a t every point between logic a n d good s e n s et h e o n e s t r i v i n g to
work fiction out of consistent results, the other restraining and at last
overcoming that effort when the results became too manifestly unjust."
To many legal theorists, logic becomes identified with reasoning by
analogy, and criticisms oflogic are often criticisms of procedures for deciding
legal issues on the basis of analogies alone. Such theorists characterise the
decision not to apply an analogy, when experienc e i n d i c a t e s it is not
justified, as a choice of experience over logic.
Some legal theorists might have shifted from the proposition that logic
is not a suffic ient tool for ration ally decid ing cases to t
h e quest ionab le
assert ion that logic is not a neces sary tool by saying "The life of the
law is
not logic, but experience as structured by logic."
In reality, logic is a tool or a method and cannot be igno
not a sufficient tool for rati red. But it is
onally deciding the cases. O.C. Jen
there are abuses in legal decision making, they cannot be ascriso n says, "if
bed
Logic does not 'force' or 'compel any particular legal decision to logic."
which remains .' The problem
is to discover the concept of logi
feel that it is a determining force in arrivin c held by legal theorists who
g at legal decisions.
When legal theorists complain about abuses
are usually complaining about decisions tha of logic in the law, they
fitting.
t are som ehow not considered
The diverse kinds of criticisms of
made intelligible in terms of some ma logic by legal theorists can only be
clearly right in saying that formal terial sense of legal logic. Je ns en
logic is not responsible for the si
decisions made by judges. But the real question kinds of
kind of material logic which is whether th
does 'compel' and 'force judgeere is some
decisions in a particular way. "If logic s to
be conceived as a set of principlmake
es ni
h a
v e LEGAL REASONING
th 53
m e e term sof which we evaluate the validity of arguments,
n t
whether t h e law provides a set of princ the question remains
iples in terms of whi ch w e can
s evaluate t h evalidityo f legal inferences and arguments." If there are
a n such
standards of legal validity they would, in a sense, force and compel the kind
o f decisions made by judges.
• In T h e legal stan dard s whic h consist of procedural valid
ogi ity and subs
tance
c soundness,const itute the material legal logic with which lawyers, jurists
chin
and legal theorists are concerned. It is the law as a system of authoritative
+t
o r u l e s , princi ples, standa rds, doctrines, received ideals, and canons of
interpreta tion which make the material logic. Judges exercise a creative
ned function in various ways by setting up the national standards to guide
lice judges in exercising their creative functions.
'e." 1 . Logic refers to the internal consistency and equal application of the
e s
. l a w . I t refers to more than formal logic. Formal logic is the science of
ces deriving a conclusion from stated premises; it is not directly concerned with
do either t r u e or false. A person can obtain a false but logically correct
conclusion from a false premise. Therefore, logic refers to the correct
be
of
application of precedents and equal application of law.
to
I I . Justice is the device to do right between the parties. Philosophical
St
thought i s an ingredient of justice though it is based on evidence.
I I I .Experience is an important component in legal reasoning. The life
o ft h el a w h a s n o t been logic; it has been experience. Experience gives
powe rt o give good legal judgments.
g
I V . T h e last component of legal reasoning is the policy. The term
'policy'may be used to describe the process of approaching a problem. Policy
e

i su s e dt o m e a n a scientifi c attempt to peer into the future and foresee the

i t

consequences of a decision. The use of this approach requires the individual

es and to keep in mind how
t op u ta s i d e t h e curr ent inter ests of the parti
t h i sd e c i s i o nw o u l d affect other perso ns in future.
is the core concept of
Am ong the four components, logical thinkingare bas ed on logical
liza tion s
l e g a lrea son ing as scientific gen era
on the principles of logic or reason.
exp lan atio ns. Eve ry science is based ts. Arguments are
Science involves the rules of reasoning or use of argumen n
madeo n t h e basis of connection, rela tionship, association, property, commo the
in
things and activities mentioned
v a r i a b l eo r a t t r i b u t e between tive, (iii) inverse
t. Ar gu m en ts can be : (1) de ductive and (ji) induc
argu m en tori.
deductive,(iv ) an alo gy and (v) for
DE DU CT IVEME TH OD
yi ng a phen om enon by taking some assumptions
T h em et ho d of st ud m pt io ns is known as the
ons fr om these as su
a n dd e d u c t i n gconclusi ess of reasoning from the gene
ral ot
n is a proc
deductive m et ho d. Deductio iverseto individual, from given premises to
un a
pa rt ic ul aro r f r o m t h eeduction is also known as analytical, abstract and
D
necessaryconclusions. abstract approach to the study of science.
priorim et h o d . I t h a s an e scientific method. It is basically a
s a p a r t of th
Deductive method i
 DOLOGY
5 4 LEGAL RESEARCH METHO

rational approach in accordance with the tenets of deductivelogic. Deductive

logic usesa general statemen t as the basisI t
of
r u
argumen
n s l i k
t. Core of the
e this .
log ic is syl log ism .
c o m m o nf o r m so f d e d u c t i v e researc

_ ( 1 )M a ni sm o r t a l .
select
- ( 2 )S o c r a t e s i sa m a n . assum
l.
_ ( 3 )S o c r a t e s i s m o r t a O n ti
Thethird statement follows from the first and second statements taken hypot
t o g e t h e r. phen
W h e nresearchers propose a study of the causal factors of the
delinquencieswhich are on the increase and which seems serious to them, impl
t h e yh a v esome general anticipatory idea as to what to observe and what theo
specificfacts in the main would be relevant to their inquiry, even though w e

theym a y not have realised these implications. Then, on the basis of their
observation, they formulate certain single propositions as to the causal e x p

factorso f delinquency. That is, they deduce from the complexities of and
eve
observed behaviour certain single ideas. In other words, they use a process
e X
o freasoning about t h e whole observed situations in order to arrive at a
particular idea. This process of reasoning is called deduction or deductive
a f
reasoning.
The following example can be cited for t h e deductive r e a s o n i n g :
pI
Lombroso, an Italian, observed peculiar physical features among the
criminals a n d by using the logical deductive thinking formulated the
followingpropositions by taking his observations into consideration:
( 1 )Criminals are by birth a distinct type of persons;
( 2 )T h e y c a n b e recognised by stigma or anomalies such as a
symmetrical cranium, long lower jaw, flattened nose, scanty beard
a n d low sensitivity to pains;
( 3 ) These physica l anomalies identif y the person ality which is
predisposed criminal behaviour; and
( 4 ) Such persons cannot refrain from committing crime
unless the
circ ums tanc es of life are gen eral ly favoured.
Deduction i s logical reasoning and if we start with good premises,
deduc tionc a n s e r v e scient ific resear ch in three w a s :
( 1 )Ded ucti on helps in detecting the questionab
le assumptions
logica lly involv ed i n w h a t is believed to be the truth and it
multiplies the number of available hypothesis by form
ulat ing the
pos sib le alt ern ati ves .
( 2 ) T h e log ica l deduction of its consequences
mak es clear the
me ani ng of a n y hypothesis.
( 3 ) T h e process o f rig oro us deduction is an
aid in the atte mp t to steer
cle ar o f irrelevancies and thu s the rig ht
principle is found.
S T E P SI N T H ED E D U C T I V E M E
THOD
(1) T h e e x p l o r a t i o n o f the p r o b l e
m . A n indisposable preliminary
to any invest igation is the existence of a definite problem
in the mind of the
uct
of
ive
the
LEGAL REASONIN
G 55
researcher. The problem must
be one of significance for the act
( 2 ) S e t t i n g u p of th e hy
po th es is fro m ual world.
sel ec tt h eass um pti on from as su m pt
ass um pti on m u s t be dersive which the conclusion wi ll iobensder
.H e h a st o
d from observation. T h e ymu st ived. The
O nt h eb a s i s of suitable ass be close to reality.
aken hy po the sis i s a conjecture, a um ptions, hypothesis ma be for
hunch, of thepossible conynec mulated. An
phenomena. tion between two
the ( 3 ) Th eo ret ica l de ve lop me nt of
e m
, imp lica tio ns of the hypotheses hav t h e hypothesis. The nature and
hat e to be carefully analvsed to form ulate a
theory.Th is is purely the deductive par
w eh a v et oded uce the consequences. t of the pro cess. By logical reasoning
ugh
leir De duc tiv e explanations consist of two
sal exp lana ns.T h e explanandum is the event, prob parts : The explanandum and
of a n di st h e conclusion of a deductive argumenlem or thing t o be explained
e v e n t .T h eexpl anan s (premise) explain the expl t. It may be an individual
'Ss anandum (conclusion). The
explanandum is deduced from the explanans. The deductive expla
a v a l i da rg u m e n t because it takes the form of conditional nation has
a

ve argument,
affirm ingt h e antec edent which is a valid form of inference.
( 4 ) Ve r i fi c a t i o n o f t h e o r i e s . The conclusions arriv ed at by the
processo flogical reasoning must be tested against reality.
e
MERITS
( 1 )P o w e r f u l . Deductive explanation is very powerful because it
m a k e su s eo f a valid form of deductive argument where the explanandum
m u s tb et r u e i f t h e e x p l a n a n s are true.
( 2 )S i m p l e m e t h o d .F r o m a few basic facts of h u m a n nature, a
n u m b e r of inferences can be drawn by logical reasoning.
( 3 )S u b s t i t u t e f o r e x p e r i m e n t a t i o n .I t is not possible for the
investi gator t oconduc t controlled experiments with the legal phenomena in
a labora tory.H ecan, therefo re, fall back upon deductive reasoning.
the
( 4 )A c c u r a t e a n d e x a c t . T h e deductive method leads to
gen eral izat ions whi ch are accu rate and exact.
DEMERITS
rea son ing .- Not everyone
( 1 ) R e q u i r e s h i g h deg ree of logic and
and eve n m a n y exp erie nce d
suc ces sful ly
c a nu s ed e d u c t i v e m e t h o d
faulty reasoning.
res ea rch ersh a v ebe en tra pp ed by
r o f bu ild in g ina pp lic ab le mo dels. If the researcher
( 2 )D a n g e , his model may have the elegance
r c h o n l y to ab str act ion
co nfi ne sh i sr e s e a
gi ca lly be au tif ul bu t it ma y be far removed from real life.
a n db e lo h e theories arrived at by
med c o n d i t i o n s .T
( 3 )V a l i d u n d e r a s s u de r assu m ed conditions. The
valid only un
de du ct iv er e a s o n i n gar e the theo ries are to hold good.
eva li d, i f
as su m pt io nsm u s tb pe s o f st ud ie s. Ded uctive method can
al l ty
( 4 )N o tap p li ca b le tostudies only.
mited
b e applicable t o t h e li
 METHODOLOGY
56
LEGAL RESEARCH

INDUCTIVE METHOD of scientific rescarch

induction is the most commonly used method
Induction is a process of reasoning fromruleparticular cases to whole group pal

cases from specificl,instances to gene ral s. met The induIctive al

method si ibes a n

or expirical or a posteriori hod . t may be descr

known ashistorica
int
the gut
as practical approach to the research problems. I t tries to remove
ch

as practical ay and practice. Thiscausa

methol drelati
examons
inesbetw
vatious
een anses
them. aftealr
oneGener a

prother and tries t o establish

principles are laid down after oxam er of special instances
ining alarge numb the formulation
mpirical' because
or faets. The method is said to be 'esive
principle is made only after an exten compilation of the raw data ro
experience. The data may be historical or statistical data. The historical
instances are qualitative, while thelysstatistical data are quantitative,
is of data.
Generalisations are made after the ana
Inductive reasoning starts from observable facts from which a
e an example:
generalisation is inferred. Let us tak
-(1) Man A died.
_ ( 2 ) Man B died and so on.
_ ( 3 ) All m e n a r e m o r t a l .
One comes across the death of so many individuals. On the basis of
these observed facts, one may infer that all human beings are mortal based
on inductive reasoning.
To give an example for inductive reasoning, we can cite the work of Dr.
Goring. He conducted a research on Lombrosian concept that the criminals
constitute a distinct physical type. His making comparison of several
thousand criminals and non-criminals, finds in his investigation that there
is no relation between the criminal behaviour and physical anomalies, which
are proposed by Lombroso.
If the premise and conclusion in the logical case, are both known, some
probability relations may be established between them and this may serve
a s a para digm of an indu ctive inference.
Inductive explanations also have exp lana ndu m and expl
anans. The
explanandum is generally probable. Explanandum canno t be deducted from
the explanans with certainty. The explanandum is
implied by the explanans.
The explanans support or provide evidence for the exp
not make the latter certain. The explan lanandum but does
ans can be tru e and the
explanandum can still be false in the ind
uctive explanation. Inductive
explanations explain either the probability of
individual eve nts or statistical
generalizations.
Inductive proces
from them the generasl exa mines the particular phenomena
law. There are two laws which bin and discovers
induction, i.e., the law of universal causat d the process of
nature. Perfect induction is a m ion and the law of uniformity of
after taking into consideration ethod of arriving at a universal proposition
all the individual instances
un de r inv es tig ati on . of phenomena
Induction argument derives a generalized co
nclusion on the basis fo
i d su
re i s p LEGALREASONING
s a particulars which are often
57

t h c r i lso
b an inductive ar gu m en tm akempirically derived observations. The premise of
n e ei inductive ap pro ac h rel es the conclusion probable,
e gu not certain. The
G a f t ll
e characteristic ofin du cti veiesargon the sc ien tifi c discovery of facts. One
a co nt en t which goes beyond ument is th at i t es tab lis he sa conclusion with
e
st ner r its
a a
t i nc l an inference i s ma de about a whpremise. From the observation of a sample,
o e leap', jumping from the premise, whichole populat
ion. This is called the 'inductive
da n s relate s t o a n observed sample, to the
t of conclusion which concerns the en
s t o a di
r representative units in the premitire population. The greater the number or
a t ical i st h e inductive leap. The se or observed in the sample, the
iv premise smaller
e. est abl ish the conclusion conclusively of an inductive argument does not
. The premise of a valid argument
be tru e, bu t the conclusion may still may
ic be false. Its premise only supports
h conclusion but it does not make the latter the
a certain.
MERITS OF INDUCTIVE METHOD
(1) Mo re real isti c. This method is more realistic because it studies
the changes in conditions surrounding the social activities o f man and their
effect on social activities are analysed and displayed.
i so
f
(2) Possibility of verification. The method is more useful because
its prepos itions c a n be tested and verified easilv.
ased
(3) P r o p e r a t t e n t i o n t o c o m p l e x i t i e s .T h i s method takes full note
of the complex relationship found in actual life and examines them carefully.
Dr. (4) Dynamic approach.This method takes into consideration the
hals changeable nature of assumptions in its analysis. It does not consider facts
ral to be stable. It is a dynamic method.
ere D E M E R I T S O R L I M I T AT I O N S O F I N D U C T I V E M E T H O D
ich ( 1 ) I t i s a d i f fi c u l t m e t h o d .T h i s method cannot be used by a
b e g i n n e r o r a c o m m o n m a n because i t is impossible for an ordinary person
ne t ocollect facts, study them and derive some conclusions out of them. The
ve cost is too much for him.
(2) D a n g e r o f b i a s . T h e propositions obtained through this method
r
le are based upon data collected by investigators. Therefore, there is a dange
of t h e inve stiga tor's bias ente ring into propositions.
n
ositions obtained
(3) L i m i t e d sco pe o f v e r i fi c a t i o n . Sinc e the prop
ersal applicability of
thro ughthis method are based on a few facts, the univ
thes e prop osit ions is always in doubt.
.Thi s method is commonly
(4) L i m i t e d u s e in soc io-l ega l s t u d i e s
In socio-legal studies, we
used for lifeless objects of the physical science. limited use.
the method has
study a man's problems. As such,
yo ne as ks wh ich me thod is pre ferred, the answer is both. Prof.
I f an h needed for scientific
Marshall says, "Inductifoon and deduction are bot
walking."
as ri gh t and left ot for
study list (D educ tionist) is like a
extreme ratio na
L a r r a b e e remarks, "If withi n the extrem e, expiricist
es from
s p i d e r sp inn ing out theori which piles useless heaps
of
ared...... ...to an ant
(In du ct io ni st) is to be comp ant is the bee, which selectively
spider or an
facts. Better than either the
 5 8 LEGAL RESEARCH METHODOLOGY

gathers pollen and transforms it into honey;to be a bee one has ot mingle
b o t hindu ctiona n d dedu ction in an intric ate way."
T h eI n v e r s eD e d u c t i v eMethod
J.s.Mill is the chief advocate of the Inverse Deductive Method. tI si a
combinationo f inductivegeneralisations obtained by means of the
comparative method o r b y statistical method with deduction from more
ultimate laws. I t i s a way t o arrive at reality through experiment,
observationand conclusion.This method starts with the use of deduction
a n dt h e nu s e st h emethod of induction to find out the reason of the
pheno mena,whichi s u n d e r study.
Analogy
Analogy i s a process of reasoning between parallel cases. In this
method,conclusions are arrived at by reasoning of resemblance from partial
resemblance o r agreement of two things or issues to each other. J.S. Mil
s a v st h a t"Two things resemble each other in one or more respects; a certain
proposition is true of the one; therefore it istrue of the other." Case alw
involves reaso ning b y analogy. In practice, the judiciary proceeds on the
basiso f a numb er of points of resemblance of relations or attrib utes between
c a s e sb y a p p l y i n gt h e o l d r u l e to t h e n e w case.
Fortiori
Fortior ii s another method of reasoning. Fortiori provides that if
some thingi sproh ibite dt h e n it is assumed that anyth ing more
obvious si
prohibited.