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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
Q

Affirming the consequent

A

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

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26
Q
  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
A

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.

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27
Q

false Dichotomy

A

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

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28
Q

Suppressed evidence

A

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
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29
Q

Normative conclusion

A

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

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30
Q

‘I have a liberty to vote’

A

This is an absense of duty

A liberty entails the correlative ‘no right’

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31
Q

‘to be owed a duty by someone else’

A

this is a claim right - a right in the strict sense

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32
Q

Charity

A

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

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33
Q

Fallacy of irrelevant conclusion

ignoratio elenchi

A

any argument for a conclsuion irrelevant to what is actually being argued

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34
Q

Exhaustive disjunction

A

Doesn’t leave room for other possibilities, nothing is left to the imagination
‘Every human is either a man or not a man’

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35
Q

Non- exhaustive

A

Leaves room for other possibilities
‘Every human is either a man or a woman’
You can get intersex people

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36
Q

Tertium quid

A

There is a third unlcassified reason

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37
Q

Inclusive

A

Means at least one is true, maybe both

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38
Q

Exclusive

A

Exactly one can be true, they cannot both be

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39
Q

Fallacy Fallacy

A

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

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40
Q

Hypothetical syllogism

A

If P then Q
If Q then R
Therefore if P then R

this is valid argument form

41
Q

internal justification

A

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
Q

Arguing in the alternative

A

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
Q

Cumulative arguments

A

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
Q

What is a reason

A

If it is a reason for something then it counts in it’s favour.

45
Q

pro tanto reason

A

A reason which does not conclusively determine it, they can be outweighed by countervailing considerations

46
Q

conclusive reason

A

a reason not open to being outweighted

47
Q

If the wine list is good then we should go to the restaurant

A

this reason is being given as sufficient

48
Q

If the wine list is good and there are no countervailing considerations then we should go tot he restaurant

A

The wine list reason is now being presented as a pro tanto reason in favour of the conclusion

49
Q

Reason for action

A

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
Q

Authority

A

Can be reasons for action (practical)
There can be reasons for belief (theoretical)
Authority is content independent

51
Q

A scientist believes global warming

A

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
Q

An officer telling a soldier to clean his gun

A

The officer is giving a Practical content independent reason- a reason for action- the officer is a practical authority

53
Q

Reasons for Belief

A

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
Q

Accepting authority

A

Requires substantive reasons to do so

55
Q

Fallicious arguments from authority

ad verecundium

A

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
Q

protasis

A

antecedent- the ‘if’

57
Q

Apodisis

A

consequent - the ‘then’

58
Q

Tautology

A

‘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
Q

a.
b.
Probably
c.

A

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
Q

Deductive arguments

A

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
Q

Inductive arguments

A

They do not purport to be valid. i.e. use the word ‘probably’ i.e. the whiteness of swans

62
Q

Ennumerative induction

A

This purports to ground a generalisation, a universal claim i..e all swans are white’, based on a number os supporting premesis.

63
Q

Validity

A

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
Q

sound

A

a valid argument where all premises are true. It may be a pointless argument but it could easily be valid and sound

65
Q

Rights

A

positions we hold in relation to others

66
Q

I have a duty no to assult Ben

A

this is a duty of negative content- an omission

67
Q

Multital right

A

when the class of duty holders is indefinate

68
Q

Paucital right

A

when the class of duty holders is definite

69
Q

Unital right

A

a unique right against a single person

70
Q

A negation of a legal position is in itself a legal position

A

i.e. It is not the case that audrey has towards ben a duty to pay ben £40

71
Q

She wasn’t rich or poor

A

Propositions are contrary when they both cannot be true

They are also not jointly exhaustive ie. both can be false

72
Q

contradictory terms

A

they are mutually exclusive and jointly exhaustive

73
Q

Contradict of;

duty to do somthing

A

A liberty not to do it

74
Q

correlative of a liberty not to do something

A

a no- right

75
Q

All rights;

A

concern an action or ommission by a duty holder

76
Q

Dilemma

A

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
Q

Reductio ad absurdum

A

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
Q

Fallacy of appealing to ignorance

A

‘we have no evidence showing he is guilty so he must eb innocent’

79
Q

Ad hominem fallacy

A

Theory disregarded not due to lack of evidence but due to person arguing for it

80
Q

Contradiction of;

Right

A

No Right

81
Q

Contradiction of;

Privilage (liberty)

A

Duty

82
Q

Contradiction of;

Power

A

Disability

83
Q

Contradiction of;

Immunity

A

Liability

84
Q

Correlative of;

Right

A

Duty

85
Q

Correlative of;

Privilage ( liberty)

A

No right

86
Q

Correlative of;

Power

A

Liability

87
Q

Correlative of;

Immunity

A

Disability

88
Q

Right

A

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
Q

Liberty (privilage)

A

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
Q

Power

A

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
Q

Immunity

A

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
Q

antithesis

A

it is the opposite of something i.e. love is the antithesis of selfishness

93
Q

asserting the conditional

A

If the antecedent is true as well

94
Q

converse

A

if Q then P

95
Q

Inverse

A

It is not the case that P therefore it is not the case that Q

96
Q

contrapositive

A

It is not the case that P therfore it is not the case that Q

97
Q

Bioconditional

A

P and only if P then Q

98
Q

analogy

A

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
Q

abudtive

A

best explanation

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