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Critical legal thinking Flashcards

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1
Q

disjunctive syllogism

A

a valid argument pattern. It is valid regardless if is inclusive or exclsuive
P or Q
Not P
Therefore q

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2
Q

Affirming a disjuct

A

Occurs when the ‘or’ is not specified as being exclusive. It is invalid unless the or is specified as exclusive
P or Q
P
Therefore not Q
The above are invlalid unless or is exlcusive

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3
Q

Exclsuive

A

Exactly one can be true, they cannot both be i.e. you are alive or dead

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4
Q

Affirming the consequent

A

If P then Q
Q
Therefore P
This is a formal fallacy

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5
Q

Illicit conversion

A

A conditional sentence that tries to entail the converse
If P then Q
If Q then P

All P are Q
Therefore
All Q are P

OR

Some P are not Q
Therefore
Some Q are not P

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6
Q

Arguing from analogy

A

P and Q are similar in respect to properties a, b, and c.
P has been observed to have further property x.
Therefore, Q probably has property x also.

this is an inductive argument

When courts are faced with the ‘same’ case, they both have the same ratio, as use the same precedent.

If use an analogy then the cases don’t share a ratio, courts will extend the precedent to an analogous case- they will have the same outcome but for DIFFERENT REASONS.
previous case- the source
case looking at - the target
Argument’s by analogy do not purport the conclusion to be necessarily true.
‘L,M and N’s characteristics are RELEVENT to one’s success as a salesman.
This was shown in Adams v New Jersey Steamboat.

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7
Q

Conclusions in legal arguments should be presented as certain- instead of probably can say;

A

unless there are no countervailing considerations
there are no countervailing considerations
conclsuion as is certain
‘unless there are no countervailing considerations X has the characteristic y’

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8
Q

Applying a precedent to a non-analogous case

A

this is binding and content independant

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9
Q

Applying a precedent to an analogous case

A

this is content indepednent

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10
Q

Straw man

A

Change the argument that they have put forward in order to suit your argument. You distort their argument.

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11
Q

Fallacy Fallacy

A

To infer from the fact that a certain argument is fallicious then conclusion is false

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12
Q

Universal modus ponens

A

All men are mortal
Socrates is a man
Therefore
Socrates is mortal

For every x if x is a reasonable person then x would’ve foreseen the act.
The accused is a reasonable person
therefore
The accused would’ve foreseen the act

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13
Q

Validity

A

when an argument follows on from the premises. It is impossible for the conclsuion to be false if the premises are true

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14
Q

Modus tollens

A

If p then q
Not q
Therefore
Not p

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15
Q

Modus ponens

A

If p then q
p
therefore
q

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16
Q

why use legal sources

A

They are used because they are authoritative
They represent genuine wisdom, experience and information
Genuine authority is content independent
Persuasive authority- can decide whether to apply or not

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17
Q

If the user believes in the substantive soundness of the argument

A

Then even if it is traditionally it is known as an authority it is not being used as one

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18
Q

How do you overrule binding authority

A

must be compelling interest rather than a;
rational interest
Substantive interest
Legitimate interest

Thee interests are not applicable, must be COMPELLING interest.

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19
Q

Prohibited Authority

A

When court denies absolute authority, i.e. banning the use of wikepedia as an authority also wary of foreign law

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20
Q

‘The boundaries of law are set by the boundaries of legal authority and law speaks as law through sources’

A

‘The idea of authority’

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21
Q

Formal Fallacies

A

Affects the validity of the argument, they are not a formal valid pattern. It is a flaw in the structure.

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22
Q

Informal fallacies

A

They are formally valid and maybe sound

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23
Q

Non sequiter

A

Concusion does not follow from premises

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24
Q

Denying the antecedent

A

You are inferring the inverse from the original statement - often called illicit inversion

If P then Q
Not P
Therefore not Q

This is a formal fallacy

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25
Affirming the consequent
You are inferring the converse of the original statement- often called illicit conversion/ converse error/fallacy of the converse If P then Q Q Therefore P
26
1. The defender is a foreign national or a diplomat 2. The defender is a foreign national Therefore 3. It is not the case that he is a diplomat
This is an example of the fallacy- Affirming the disjunct It is invalid- we do not know whether the disjunct is exclusive This occurs when 'or' is not specified as being exclusive - taking that if one option is true the other is false.
27
false Dichotomy
This is an informal fallacy It involves claiming there are only 2 options when in fact there are more. You are falsely treating the disjunction as exhaustive and not taking into account other possibilities Either God exists or the word would not have come into being The world came into being Therefore God exists
28
Suppressed evidence
This is an informal fallacy - a fallacy of presumption When you ignore an important peices of evidence in favour of your argument 1. Generally streets are safe to walk down 2. Therefore this street should be possible to walk down without harassment
29
Normative conclusion
If a statement renders a judgement then it is normative 'you ought to do something'- this is normative 'you are doing something'- this is descriptive No normative conclusion can be drawn from non- normative premises
30
'I have a liberty to vote'
This is an absense of duty | A liberty entails the correlative 'no right'
31
'to be owed a duty by someone else'
this is a claim right - a right in the strict sense
32
Charity
Reconstruction faithfully and completely captures the argument No argument is refuted unless it is refutes in it's strongest sense- otherwise have a straw man and are arguing against an argument that is not really being endorsed by the arguer Straw man- fallacy of relevence
33
Fallacy of irrelevant conclusion | ignoratio elenchi
any argument for a conclsuion irrelevant to what is actually being argued
34
Exhaustive disjunction
Doesn't leave room for other possibilities, nothing is left to the imagination 'Every human is either a man or not a man'
35
Non- exhaustive
Leaves room for other possibilities 'Every human is either a man or a woman' You can get intersex people
36
Tertium quid
There is a third unlcassified reason
37
Inclusive
Means at least one is true, maybe both
38
Exclusive
Exactly one can be true, they cannot both be
39
Fallacy Fallacy
Because an argument is fallacious that it's conclusion is false- you commit a non sequitar 1. Argument X is fallacious Therefore 2. The conclusion of argument X is false. The premises only concludes that Argument X FAILED TO ESTABLISH the conclusion
40
Hypothetical syllogism
If P then Q If Q then R Therefore if P then R this is valid argument form
41
internal justification
this is about the relationship between components of the argument- the syllogism needs to be valid and sound- to be sound we need external justification. A legal syllogism is valid only if it is internally justified.
42
Arguing in the alternative
Either consideration is presented as sufficient to establish the conclusion- when taken individually they are considered sufficient. Seen as a disjunct then 2 premises- each to affirm each disjunct.
43
Cumulative arguments
Taken together they are sufficient Here the antecedent of the conditional is a conjunction- 'and'. You only need to refute one premise to refute the argument
44
What is a reason
If it is a reason for something then it counts in it's favour.
45
pro tanto reason
A reason which does not conclusively determine it, they can be outweighed by countervailing considerations
46
conclusive reason
a reason not open to being outweighted
47
If the wine list is good then we should go to the restaurant
this reason is being given as sufficient
48
If the wine list is good and there are no countervailing considerations then we should go tot he restaurant
The wine list reason is now being presented as a pro tanto reason in favour of the conclusion
49
Reason for action
This is a practical reason i.e. you have fallen and you ask for help. If you promise to go for lunch- this promise is nothing to do with the merits of the action, the promise gives you reason to do the action- it is independent of the content of the promise and independent of the merits of the action you have promised. You can have substantive reasons as well which are content dependent i.e. you have not seen them for a long time. If someone is hurt and they need help- this is content dependent and is a substantive reason
50
Authority
Can be reasons for action (practical) There can be reasons for belief (theoretical) Authority is content independent
51
A scientist believes global warming
He has a substantive reason to do so which is content dependent- whereas our belief in global warming is content independent and is theoretical
52
An officer telling a soldier to clean his gun
The officer is giving a Practical content independent reason- a reason for action- the officer is a practical authority
53
Reasons for Belief
These are theoretical reasons- they are persuasive 1. If Lord Reid says P then we have reason to believe P. 2. Lord Reid says P Therefore 3. We have reason to believe P Authoritative pronouncements always depends on a normative claim that is not derived from a normative source i.e. If commander x tells me to do A then I OUGHT to perform action A
54
Accepting authority
Requires substantive reasons to do so
55
Fallicious arguments from authority | ad verecundium
this sis when you try to appeal to a conclsuion because an authority said so or agrees with you- therefore that the other party should not question their authority.
56
protasis
antecedent- the 'if'
57
Apodisis
consequent - the 'then'
58
Tautology
'if the will was not signed by Jeremy then the will was not signed by Jeremy' When the same sentance features as both the consequent and the antecedent- they are always true- if p then p. They are always valid.
59
a. b. Probably c.
This is invalid, but we cannot critisise it as it does not purport to be establish certainty only probability- it does not put itself foreward as a valid argument
60
Deductive arguments
If they purport to be valid- they purport o be such that if the premises are true then the conclsuion will certainly be true- a deductive argument fails if it is invalid.
61
Inductive arguments
They do not purport to be valid. i.e. use the word 'probably' i.e. the whiteness of swans
62
Ennumerative induction
This purports to ground a generalisation, a universal claim i..e all swans are white', based on a number os supporting premesis.
63
Validity
this is a necessary but not sufficent condition for a good deductive argument Can be valid even if only one premise is false and the conclsuion still true, however if one premise is false thent he argument fails to show the conclsuion is true
64
sound
a valid argument where all premises are true. It may be a pointless argument but it could easily be valid and sound
65
Rights
positions we hold in relation to others
66
I have a duty no to assult Ben
this is a duty of negative content- an omission
67
Multital right
when the class of duty holders is indefinate
68
Paucital right
when the class of duty holders is definite
69
Unital right
a unique right against a single person
70
A negation of a legal position is in itself a legal position
i.e. It is not the case that audrey has towards ben a duty to pay ben £40
71
She wasn't rich or poor
Propositions are contrary when they both cannot be true | They are also not jointly exhaustive ie. both can be false
72
contradictory terms
they are mutually exclusive and jointly exhaustive
73
Contradict of; | duty to do somthing
A liberty not to do it
74
correlative of a liberty not to do something
a no- right
75
All rights;
concern an action or ommission by a duty holder
76
Dilemma
P or Q If P then R If Q then S Therefore R or S OR P or Q If P then R If Q then R Therefore R
77
Reductio ad absurdum
The assumption that S is false will lead to a contradiction or a claim that is absurd or false. Therefore S must be true
78
Fallacy of appealing to ignorance
'we have no evidence showing he is guilty so he must eb innocent'
79
Ad hominem fallacy
Theory disregarded not due to lack of evidence but due to person arguing for it
80
Contradiction of; Right
No Right
81
Contradiction of; Privilage (liberty)
Duty
82
Contradiction of; Power
Disability
83
Contradiction of; Immunity
Liability
84
Correlative of; Right
Duty
85
Correlative of; Privilage ( liberty)
No right
86
Correlative of; Power
Liability
87
Correlative of; Immunity
Disability
88
Right
Every right is a relation between no more than two people. in personam rights- attached to specific person i.e. in a contract in rem rights- property rights enforceable against the entire world. 'right not to be tortured by someone' this is not a hohfeldien right because no-one else is under a CORRELATIVE DUTY TO ABSTAIN FROM TORTURE
89
Liberty (privilage)
This is an absense of a duty to abstain from an action It is a weaker right i.e. 'I have a right to smoke in your vicinity' - THIS IS NOT true as theere is an absense of a correlative duty. Instead you have a LIBERTY to smoke in the vicinity. A liberty attracts the corelative 'no right'
90
Power
Ones ability to alter legal relations. 'I have the power to enter into a contract with S whereby he agrees to stop smoking' S thus has a liability (co-relative) in that he is liable to having his legal relations changed by the excersise of my power
91
Immunity
If X has an immunity against Y it means that Y has no power to change X's legal position in regard to any entitledments covered by the immunity. i.e. if the state has no power to place me under a duty to wear a hat when I go out then I have an immunity in that respect and the state has a disability (co- relative)
92
antithesis
it is the opposite of something i.e. love is the antithesis of selfishness
93
asserting the conditional
If the antecedent is true as well
94
converse
if Q then P
95
Inverse
It is not the case that P therefore it is not the case that Q
96
contrapositive
It is not the case that P therfore it is not the case that Q
97
Bioconditional
P and only if P then Q
98
analogy
similar aspects and the two cases are unrelated but are governed by the same principles. you reach the same conclsuion but for different facts
99
abudtive
best explanation

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