• Legal argumentation can be modeled using logic,
it is argued that logic alone is not enough. A
model must also take into account the rhetorical
nature of legal argumentation. DiaLaw is such a
model: a formal and procedural model in which
the logical and rhetorical aspects of
argumentation are combined.
• Today it is necessary to circumscribe the
respective areas of logic and rhetoric in the
language of law, showing how sometimes they
are complementary in solving legal problems.
3. Legal logic
• Many western jurists of the 18th and 19th
centuries sought to make legal reasoning conform
to syllogistic logic.
• The life of the law was not logical; it was
experience, Holmes said in 1881. With "logic"
Holmes indicated that he meant "the syllogism"
• The rules of law declared by legislatures, courts
and jurists were considered important premises,
and the factual situations of particular cases or
the terms of particular legal problems were
considered minor premises.
4. • It was believed that the decision of a case or the
resolution of a legal problem derived inevitably from an
appropriate juxtaposition of major and minor premises.
• This mechanical model of applying rules to events did not
go unopposed even at its peak. In Germany, Rudolf von
Jhering ridiculed a “jurisprudence of concepts and called
for a conscious legal policy of evaluating the social and
personal interests involved in the legal resolution of
• As useful as syllogistic logic may be in testing the validity
of conclusions drawn from given premises, it is
inadequate as a method of reasoning in a practical
science such as law, where premises are not given but
must be created. Legal norms, considered as important
premises, are always subject to reservations in light of
5. • Legal norms, considered as important premises, are always subject to
reservations in light of particular circumstances; It is a rule of English
and American law, for example, that a person who intentionally hits
another is civilly liable for bodily harm, but such a rule is subject, in
legal practice, to infinite modifications to the law. In light of a possible
• Likewise, the "minor premises" - the facts of particular cases or the
terms of particular legal problems - are not simply "there" but must be
perceived and characterized, which also requires interpretation and
evaluation. In fact, the legal facts of a case are not raw data, but facts
that have been selected and classified in terms of legal categories.
• Finally, the conclusion, that is, the application of the rule to the
particular case or problem, given that it is a responsible decision that
directly affects particular people in particular situations, is never
mathematically inevitable but always depends on the exercise of
6. • It is characteristic of legal reasoning that seeks the
coherence of both legal norms and legal judgments; Such a
search for coherence is implicit in the conviction that the
law must apply in the same way to all those who are
subject to it and that similar cases must be resolved in the
• It is also characteristic of legal reasoning that points to
continuity in time; it draws on the authority of the past,
embodied in previously declared rules and decisions, and
attempts to regulate social relations in such a way as to
• Finally, legal reasoning is dialectical reasoning; it is usually
concerned with balancing opposing claims, whether they
are expressed in legislative debate, medico-legal
arguments, or otherwise. These three fundamental
characteristics of legal reasoning impose certain logical
requirements on it.
• The most common form of legal logic is analogy, in the
broad sense of comparing and contrasting similar and
• Analog reasoning is implicit in the search for coherence; the
search for continuity (that is, historical coherence) also
implies analogical reasoning, the analogies being found in
past experience; Likewise, the dialectical quality of legal
reasoning implies the comparison and contrast between
the examples raised by the opposing parties.
• A rigid definition that limits the term "logic" to propositions
that necessarily follow from given premises.
• Analog reasoning is, of course, a universal mode of
reasoning and in no way peculiar to law.
8. Legal Rhetoric
• Rhetoric means a way of speaking or writing that is
intended to impress or influence people, but is not always
• We define rhetoric, following Aristotle,"As referring not
only to the art of persuasion through appeals to emotions
but also to the art of public deliberation through appeals to
reason and therefore as a mode of reasoning."
• At the same time, rhetoric is distinguished from logic in
that logic refers to indicative statements that are
considered true or false ("propositions"), while rhetoric
refers to subjunctive, normative, and imperative
statements spoken to influence the thought. or action
• Since the logical aspect of legal reasoning focuses on
legal norms and principles that are derived from
decisions made in analogous cases, the rhetorical
aspect of legal reasoning emphasizes legal activities.
• As many authors have pointed out, the law itself is not
simply, nor primarily, a set of rules, but an activity, a
business. One of the main objectives of this enterprise
is to subject human behavior to the rule of law (Fuller
1964); but for this purpose, the rules must be written,
debated, voted, published, interpreted, obeyed,
applied, fulfilled; All of these legal activities involve the
use of rhetoric and not just logic.
10. • In addition, in addition to the activities related to
rule-making, the legal firm also aims to issue
decisions, such as voting, issuing orders, making
judgments; and making such decisions, like
making legal rules, is both a product and an
expression of rhetorical statements.
• In addition, legal reasoning covers the
negotiation of legal transactions, the formulation
of petitions or recommendations, the writing of
legal opinions, the issuance of legal documents,
and various other types of legal activities, all of
which involve the use of language to induce a
response. . in those to whom the language is