Riassunto
There are those who say that the law is persuasion, not logic; that the art of the lawyer is the art of rhetoric and oratory, not the art of logic and demonstration. But what these people really mean is that persuasion is the appeal to human emotions and the manipulation of human emotions, and, if one looks beneath the surface, what they truly mean is that persuasion is the art of manipulating human stupidity.
Not so, says this book. This essay takes a more idealistic, inspired, ethical approach to the practice of law. According to the author, the art of being a lawyer is the art of being able to prove your case, but "proof," in this sense, should be understood in its logical and mathematical sense, in the same way that a mathematician proves a conclusion, or a logician proves a deduction.
The basic idea of this thesis is that each law defines a set of elements which must be met in order for a party to be entitled to a certain desired outcome, and, if a set of facts exists which satisfies all necessary and sufficient conditions of that set of legal elements, then the party or parties are entitled to that outcome. This is true whether the desired outcome is a victory at court, a decision from a regulator, an increase in bargaining leverage in contract negotiations, or any benefit that the law is entitled to provide. The practice of law, then, consists of having, and using, the ability to prove sets of facts, using the methods of empirical science, math, and logic, and of the ability to prove sets of legal elements, by applying logic to legal texts and to legislative contexts.
A set of facts either exists, or else it does not, and this is objective, not subjective; and the law either states an element or a set of elements, or it does not, and this, too, is objective, not subjective. In counterargument, it might be said that facts exist, but the point of view with respect to those facts is subjective, and that legal texts exist, but the intent and meaning of the legislators is subjective, and that these subjective things are based on psychology, not on logic, because they are made by humans, and humans are creatures of psychology, not creatures of logic.
Yes, points of view, and legal intentions, do belong to humans, but that is precisely the point--they belong to humans, not to mere animals, and the difference between humans and animals is that humans think, humans use logic, humans have minds, humans have reason, whereas animals are mere creatures of their psychology, mere engines driven by instinct and intuition. The law has been lowered to the level of manipulating animals; this essay seeks to elevate it back to the realm of humans and the human mind.
While this analysis seems simple, this short essay takes the basic idea and develops it into a highly complex system of formal logical notation and proof designed for use in the law but inspired by the work done in logic by a range of philosophers, including Aristotle, Ayn Rand, and contemporary academic Analytic philosophers.
This system of logic is designed to translate sets of facts and sets of legal elements as well as proper methods of legal reasoning into logical symbols. This system of logic will admit of a written formal deductive proof of a legal analysis that can be objectively either right or wrong, and which can be demonstrated to be right or wrong.
The essay also provides a logical account of the "why?" of the law, in other words, why the law is required to produce certain outcomes if certain sets of facts match certain defined sets of legal elements. And it touches upon the issue of logical coherence as moral integrity, and why a jury should be more inclined to trust a lawyer who presents a logical case. To that extent, this is a work of philosophy and jurisprudence, as well as practical law.
This essay is required reading for lawyers, judges, academics, and any person who wishes to understand the law and how and why it impacts them.
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