LEGAL REASONING, LEGAL LANGUAGE, LEGAL RHETORIC, LEGAL LOGIC,

AND LEGAL JUSTIFICATION

Introduction
According to Sir Edward Coke, ‘reason is the life of the law; nay, the
common law itself is nothing else but reason – the law which is perfection
of reason – gotten by long study, observation and experience; and not of
every man’s natural reason …..’. There is a close relationship between
practical reasoning and one’s conception of reason. Reason can be used in
different ways. For our purposes, it is to think in a logical way, to
understand and to hold opinions usually about what is right and practical.
The law has its own kind of reasoning – legal reasoning – which is used in
the formulation, interpretation, administration and application of laws. In
connection with legal reasoning, it is also said that the law has its own
logic, language, rhetoric and justification.

Legal Reasoning
Legal is anything related to the law. Reasoning on its part means to think
in a sensible, connected and logical way. Therefore, legal reasoning is the
sensible, connected or logical thinking of issues that are related to law. It
is used by legislators in drafting and enacting the law, lawyers in
negotiating legal transactions and arguing cases in court on behalf of their
clients, judges in the interpretation of the law and resolution of disputes,
law enforcement agencies in administering and enforcing the law, etc.

Knowledge of the law and facts of a case are prerequisites to legal

reasoning. The law is usually expressed in general language. Yet, it is
meant to apply to particular individuals, groups or classes of people,
offices, institutions, etc. This often makes legislative process
cumbersome, the meaning of the law subject to multiple interpretations
and its application to particular facts ambiguous and difficult. In the
course of resolving disputes, lawyers and judges determine through legal
reasoning whether the law applies to the particular facts before them. The
laws which are usually the starting point for legal reasoning are
formulated from legal rules, principles, standards, concepts, policies, and
customs.

There are different methods of legal reasoning. However, the methods

commonly employed by lawyers in common law jurisdictions are:

 Syllogism or Deductive Reason/Logic; or

 Inductive Logic; or
 Distinguishing and Analogy

Syllogism or Deductive Logic

Deductive is derived from the word ‘deduce’ which means to infer, form or
hold a particular opinion about something from available general facts or
evidence. Deductive logic is the process of reasoning from the general to
the particular. It involves reasoning from general facts to particular facts
and drawing a logical conclusion from the two facts. Below is an example
of reasoning by deductive logic:

All EDSU students are disciplined. (General Fact)

Bashira is an EDSU student. (Particular Fact)
Bashira is disciplined. (Conclusion)

Deductive logic is usually used to draw conclusions regarding particular

facts from general statutory provisions. For instance, the following
conclusion may be drawn from the provisions of Section 25(1)(c) of the
Constitution thus:

25(1) The following persons are citizens of Nigeria by birth, namely -

(c) Every person born outside Nigeria either of whose
parents is a citizen of Nigeria. (General Statutory
Provision)
Gideon was born outside Nigeria but his mother is a citizen of
Nigeria. (Particular Fact)
Gideon is a Nigerian citizen by birth. (Conclusion)

This method of reasoning has some demerits. First, if the available

general facts or evidence is false, the particular fact or opinion drawn
from it will also be false. Second, logical false conclusions can still be
drawn from correct general facts. Third, conclusions may be correct in one
context and be incorrect in another context. These demerits make it risky
to rely on this method of reasoning.

Inductive Logic
Inductive logic involves reasoning from the particular to making general
conclusions. Where there is no statutory provision to base a legal
argument, lawyers usually turn to case law. Inductive logic is used to draw
general rules from particular judicial decisions. Under this type of
reasoning, a lawyer builds his case from a minor premise to a general
premise.

Assuming a lawyer is briefed regarding a matter and he intends to

convince the court by inductive logic, he will start by identifying the
important facts of the matter. Then, he will cite cases with facts similar to
the case under consideration where the decision of the court supports his
client’s case. Thereafter, he will argue that based on that particular
judicial decision reached in the cited cases, a general legal rule exist upon
which the court can base its decision in the present case before it.

As mentioned before, legal reasoning is also used by judges in deciding

the cases brought before them. In Dorset Yacht Company Ltd. v The
Home Office (1970) AC 1004, one of the questions before the court was
whether Borstal officers owed a duty of care to the public to prevent
escapes of those in their custody? In reaching a decision, Lord Diplock
stated that:
 ‘the court should proceed by seeking first to identify the
relevant characteristics that are common to the kinds of conduct
and relationship between the parties which are involved in this
case for decisions and the kind of conduct and relationship
which have been held in previous decisions of the courts to give
right to a duty.’

Therefore, judges first ascertain whether there are similarities between

the facts of the particular case before them and those of previously
decided cases. If there are similarities, then, the judicial decision reached
in the previous cases is treated as a general rule applicable to the
particular case before them.

Although it is usually insufficient to use the decision in only one previous

case to prove that a general rule has been laid on a matter, the court has
noted that where a case sufficiently establishes a rule, one judicial
decision is sufficient.

Both deductive and inductive logic require the ability to identify similar
and distinct important facts from the general facts. These important facts
are called material facts – important or relevant facts. These two
reasoning methods are important legal tools of analysis. They are central
to learning to think like a lawyer.

Distinguishing and Analogical Reasoning

This reasoning compares or contrasts the facts of a yet to be decided case
with the facts of previously decided case(s) and argues that the current
case should be decided in a manner similar to or different from the
previous case. That is, cases with like facts should be treated alike while
those with different facts should be treated differently. For instance, a
legal practitioner arguing in favour of a particular legal interpretation may
refer the court to a previous case where the legal interpretation was
adopted by the court and urge the court to adopt the same interpretation.

This type of reasoning can be used to predict the outcome of a case.

However, it is difficult to determine what is alike or different about a set of
cases. This method of reasoning is particularly useful in common law
jurisdictions because of the practice of judicial precedence.

Legal Logic
The meaning of the phrase legal logic is tainted with ambiguity. This is
because it is mistaken for legal reasoning. It is also considered the
application of pure theoretical logic to reasoning or thinking. A good
example of legal logic is deductive logic which is stated as follows:

All human beings are rational creatures

Men are human beings
Men are rational creatures
However, legal logic is not the archetype for legal reasoning. Unlike legal
reasoning which applies to general legal thinking, legal logic is used for
the kind of thinking where thoughts are systematically connected in a
persuasive or convincing manner like deductive logic and inductive logic.
It is a method of reasoning that is more concerned with the formal validity
of argumentation than the truth and justice. It is usually relevant when
applying clearly expressed statutory provisions or established case law to
facts. Classification is another form of legal logic.

Legal Language
Legal language is the oral or written means of communicating legal
reasoning or thoughts. It can also be said to be the systematic, logical or
persuasive presentation of issues relating to law. Legal language is crucial
to lawyers because lawyers operate in the fields of social control. Lawyers
work with language all the time. They have been described as wordsmith,
people whose craft and trade require highly competent use of both oral
and written language. Legal language is used in legislative processes, the
administration of the law, the adjudication of cases, negotiation of legal
transaction and the drafting of legal instruments. In the words of Lord
Denning,

“to succeed in the profession of law, you must seek to cultivate

command of language. Words are the jurists’ tool of trade. The
reason why words are so important is because words are the vehicle
of thought……, obscurity in thought inexorably leads to obscurity in
language.”

Legal language is unique. Below are some of the features of legal

language that distinguishes it from the language of the laymen.

Features of Legal Language

Generality - the law is usually expressed in general terms to make it
applicable to a wide spectrum of people. Making laws in this way helps to
avoid unnecessary duplication of provisions, waste of time and resources.
For instance, see Section 37 of the Constitution which provides:

“The privacy of citizens, their homes, correspondences, telephone

conversations and telegraphic communications is hereby guaranteed and
protected.”

Also see Section 33(1) of the Constitution and Section 316 of the
Criminal Code (CC).

This generality also applies to case law. Rather than directly decide the
merit of cases, judges tend to decide cases according to general legal
concepts or within a general concept. This is so because expressing legal
decisions in restricted language would restricts its future application and
stall the growth of case law. In Donoghue v Stevenson (1932) A.C.
562, the issue before the House of Lords was whether Stevenson owed
Donoghue a duty of care not to have allowed a snail get into her beer.
Although the case established that the manufacturer of ginger beer owes
a duty not to allow snails get into the product, the principle laid down in
the case was expressed at a higher level of generality to establish that
manufacturers of consumer products owe a duty of care to the final
consumers of the products.

Precision - Legal language is not always expressed in generality.

Sometimes, it is expressed in specifics for clarity. This is usually the case
where the law does not want to give room for doubt. See Section 6(5) of
the Constitution.

Technicality - Legal language is usually technical even though the words

used are common with ordinary meanings. Lawyers are said to sometimes
play humpty dumpty with words, using them to mean what they want
them to mean. In his book the Language of the Law, David Mellinkoff gave
reasons for the uniqueness of legal language. They include the following:

 Ascribing uncommon meanings to common words like the use of

action or matter for law suit; consideration for price;
 Use of old English words and phrases like aforesaid, hereinbefore,
heretofore and hereunder;
 Frequent use of Latin words like mens rea and ultra vires;
 Use of argots like inferior court and the rule of law; and
 Use of resonance like the truth, the whole truth and nothing but the
truth

One of the beauties of using technical legal language is that it obviates

the need for details or making verbose explanation. For example, the use
of the phrase ‘rule of law’ obviates the need to name or describe its
components which are the supremacy of the law, equality before the law
as administered by the courts and the protection of fundamental human
rights.

Flexibility - Legal language is not fixed. It changes with time and within
context. This is because it is made up of words which can be manipulated
at will and used in different senses. See for instance the legal meanings of
execution. In Seaford Court Estates Ltd. v Asher (1949) 2 KB, page
48l, a case on the interpretation of statutes, Lord Denning warned that
language is not supposed to be measured by way of mathematical
precision.

Legal Rhetoric
This is the act of convincing people to accept a particular view point by
oral or written communication. Plato defined rhetoric as the act of winning
men’s mind with words. Prof. Farrar, writes that Aristotle identified
forensic and deliberative rhetoric and drew a distinction between them.
According to him, deliberative rhetoric is nobler than forensic rhetoric
because it is honest, sincere and done to advance society. Broadly
speaking, lawyers use forensic rhetoric to persuade the court to accept
their arguments in favour of their clients’ interest while judges use
deliberative rhetoric to rationalise and justify their decisions as being
beneficial to the parties in dispute and the general public.

The principal persuasive device used in legal rhetoric is legal authority.

Lawyers and judges appeal to legal authorities - sources of law - in
justification of their legal position. Judges are bound to follow and ground
their decisions on relevant primary sources of law cited in support of an
argument. On the other hand, they are not so bound in respect of
secondary sources of law like commentaries of learned jurists and writers
as well as judicial decisions of other jurisdictions because they have only
persuasive value. Judges exercise discretion in basing their decisions on
them.

Therefore, to be an expert in legal rhetoric, law students, lawyers and

judges must have sound knowledge of the law, skill in the application of
law to facts, and constantly seek to know and improve their mastery of
the use of legal language.

Legal Justification
Justification is the reason for a lawful act or omission. Alternatively, it is
the reason why an act or omission is not regarded as unlawful. Lawyers
and more so, judges defend the rightfulness of their legal positions with
legal authorities. In settling disputes, judges justify their decisions in
reasoned judgements with legal authorities. These authorities are found in
the sources of law. Under Roman law judicial decisions were justified by
doctrines – learned writings of particular jurists – until the 19th century
codifications. In civil law jurisdictions, judicial decisions are justified by
appeal to codes and legislations. In England, judges justify their decisions
primarily by appeal to case law and statutory authorities. Secondary legal
sources like encyclopaedias of English law, textbooks, and legal
dictionaries may also be cited in justifying a decision but they only have
persuasive weight.

Under the Nigerian legal system, decisions are justified by appeal to legal
authorities. As indicated before, primary sources of law are weightier than
secondary sources of law and judges are bound to rely on them in
justification of their decisions where they apply to the case before them.
Professor Neil Mac Cormack stated that judges are guided by legal
authorities as well as the consequences of their decisions for the parties,
the legal system and the society at large in justifying their decisions. In
Ross v Counter (1980) Ch. 297, Megarry V.C. opined that judges may
also refer to common sense – the reasonable man standard – and the
notions of justice and fairness in justifying their decisions.

Conclusion
Even though the law and its application varies from clime to clime, it has
its own kind of reason, logic, language, rhetoric and justification. A lawyer
needs to have good knowledge of the law, good oral and written language
and where necessary, the facts of a case.