Analysing Judgments: Reasoning, Argument and Legal Logic

AuthorAndrew Goodman




The more experienced the judge the more likely it is that he may display the virtue of brevity ... the essential test is: does the judgment sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which he has arrived at his findings, and then his conclusions1

Precise and accurate use of ordinary language is not enough in itself to win cases. Where there is no emotional language to attract the jury, more attention must be paid to the argument. For success in advocacy, therefore, elegance of language must be supplemented by elegance of reasoning ... Elegance to the Roman jurists was not a matter of words but ideas.2

Cases are decided by rational or objective means, but with a pragmatic, purposive approach to the facts. Judgments are based on reasoned principles, whether of general expediency, the balance of convenience, moral standards, or whatever other legitimate principles a court might have recourse to: law is or should be a rational process.3

Unlike the continental system, the order of precedent in the common law means that judges are not compelled to follow close patterns of logic to arrive at their conclusion, which might act as a straitjacket. Unlike the application of fixed rules, a case-by-case examination of facts does not

1Re B [2003] EWCA Civ 881, [2003] 2 FLR 1035 per Thorpe LJ at [11].

2Professor Peter Stein, ‘Elegance in Law’ (1961) 77 LQR 242.

3See Dennis Lloyd, ‘Reason and Logic in the Common Law’ (1948) 64 LQR 468 et seq.

152 How Judges Decide Cases: Reading, Writing and Analysing Judgments

give rise to abstract formulae, or lead to unwanted, undesirable and unjust directions in the law, even if certainty of application and the consistency of results are desirable.

In this jurisdiction, the House of Lords debated 70 years ago the place of pure logic in the judge’s approach, and concluded that consistency had to give way to practical application in each case: see per Lord Wright in Liebosch Dredger v Edison4and Lord Macmillan5and Viscount Simons6in Read v Lyons,7rejecting the suggestion of the Court of Appeal in Read that:

though law was not logic, the nearer one could get to logic the better, and there was an inherent illogicality in the defendant’s contention, which should be rejected as the plaintiff’s contention made for consistency.

Lord Macmillan said in Read:8

Arguments based on legal consistency are apt to mislead for the common law is a practical code adapted to deal with the manifold diversities of human life.

The common lawyer will readily understand the reluctance of the court to apply a strictly logical methodology in deciding cases, logic being a method of reasoning where deductions are rigorously and necessarily inferred from general premises. The claims with which courts are concerned require the judge to make deductions from particular facts, not generalities that have to be hedged around with endless qualifications. While the law is concerned with elucidation of general propositions and their application to particular cases, courts can never construe propositions as pure generalities unrelated to the facts of life into which they must be integrated. The judge is not so much concerned with logic or reason but with ‘reasonableness’, which is a matter of opinion. You are conducting an exercise in assessing whether that opinion has a proper basis, and is not merely capricious or arbitrary.

At first instance the findings of fact are applied to broad, established principles to do practical justice between the parties as the court sees it.

4[1933] AC 449 at 460.

5[1947] AC 160 at 175.

6[1947] AC 160 at 180.

7[1947] AC 160.

8[1947] AC 160 at 175.

On appeal, the intervention of policy matters guides the ebb and flow of such principles in accordance with the needs of contemporary society more generally, and is not confined to the specific wishes of the parties. But for both the advocate seeking to persuade the judge, and the court to justify its decision, at each level the argument must follow a process of logical and progressive reasoning. Bentham said, ‘Good laws are such laws for which good reasons can be given’.9

Let us start, then, by looking at the context in which the judge applies his reasoning or the application of logical principles.

• Identify the scope of the dispute.
• Distinguish the material facts – find those facts in issue, the determination of which will form the basis of the judge’s decision: a fact is relevant if it enables the judge to conclude an issue.

• Assess their materiality by reference to the legal issues involved in the case, bearing in mind that even material facts are not of equal importance.

• Understand the relationship between the facts and the law: identify not just relevant facts, but legally relevant facts.

• Overlay the rules of evidence.
• Apply the burden of proof.

There is no essential difference between a legal argument and any other kind of argument. The principles of logic or rational thought are the same whether they are applied by lawyers or laymen. Lawyers do not possess a monopoly of the arts of demonstration, interpretation, comparison and logical analysis, though perhaps they should be able to articulate them better than most. If two doctors were to argue a moot point of their science in a public court, they would set about it in much the same way as lawyers do. The cases they would cite would be patients and experiments. They would appeal to writers of authority, to common sense, to principles of natural science in general and medical science in particular. But naturally they would deal chiefly in actual cases of medical experience. This is reflected in expert evidence provided to the court. So in a legal discussion, counsel are concerned chiefly with actual cases of legal experience, and very often such cases cover all the necessary ground. However, it does not follow that cases and decisions are the only essential materials allowed by the lawyer in building up the structure of his argument.

9Jeremy Bentham, Works, Vol ix (Oxford University Press, Bentham Project, Oxford, 1963–
2005) at p 357.

154 How Judges Decide Cases: Reading, Writing and Analysing Judgments

As Justice Oliver Wendell Holmes put it:10

the life of the law has not been logic; it has been experience. The felt necessities of the times, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices 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.

Coke said ‘the Common Law of England is the perfection of reason, gotten by long study, observation, and experience’.11

In a system of law founded on binding precedent, courts are severely limited in applying a rational process by the necessity to conform with earlier precedents. As we shall examine, there is scope for the judge to draw distinctions of fact between the case before him and earlier cases. In this sense, the law is reduced to the art of drawing distinctions, and in the case of the practitioner, anticipating the distinctions the judge is likely to draw. For present purposes, we must consider whether the judge was correct in drawing a particular distinction since such distinctions may often be in the nature of hair-splitting, this being the only method to hand for avoiding the consequences of an earlier decision which the court considers unreasonable or as laying down a principle which is not to be extended.

Start then, by assuming that the judge has based his own argument on a process that is both rational and of practical application in the sense that his intended result has a practical effect. Examine the judge’s reasoning in stages: the judgment is a path along which to proceed empirically and gradually, testing the ground at each step and not worrying about the absence of any broad theoretical principles or feeling any dismay or discomfort because the facts of a situation could not be moulded into any pre-established and consistent theoretical framework. It is not unlike the kind of incremental development in the law of negligence considered by Lord Bridge in Caparo Industries v Dickman.12

10Oliver Wendell Holmes, The Common Law (1881) (Courier, North Chelmsford, MA, 1991) at p 1.

11Sir Edward Coke, Inst., Pt I (W.T. Clarke, London, 1832) at § 138.

12[1990] 2 AC 605 at 618.


Identify in the judgment the most important paragraphs and sentences. This is not a matter of length. It is a question of the relationship between language and thought. Nor is it always the case that the argument will be contained in one unit of writing.

The logical unit is a sequence of propositions, some of which give rise to further development; but it is not uniquely related to any recognisable block of writing, as terms are related to words and phrases, and propositions to sentences. An argument may be expressed in a single complicated sentence. Or it may be expressed in a number of sentences that are part only of one paragraph. Sometimes an argument may correspond with a paragraph, but it may also happen that an argument runs through several or many paragraphs.13Equally, there are many paragraphs in any judgment that do not express an argument at all, nor even part of one. These may consist of collections of sentences that detail evidence or report how the evidence has been gathered. They are of secondary importance.

If the argument is not expressed in self-contained paragraphs, it may be necessary...

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