Date: Thu, 10 Aug 2006 12:35:20 +0100

From: Steve Hedley

Subject: Law's (Il)logic

I'm puzzled by the example. Lambert JA didn't say that the inference was "logical" - in fact he went to a certain amount of trouble to say that it wasn't. Presumably, he thought the word "inference" could be used to mean simply "a reasoned conclusion" - and the dictionaries agree. (There is also the more specialised meaning of "a conclusion dictated by logic", but that plainly isn't what Lambert meant.)

Calling this "illogical", simply because it isn't dictated by logic, seems to me the same error repeatedly made by Mr Spock (Leonard Nimoy) in a well-known SF TV show. A conclusion is only "illogical" if it conflicts with logic. A conclusion reached without the aid of logic isn't necessarily illogical. And the life of the law, as Ken has just reminded us ...

Steve Hedley
Faculty of Law, University College Cork

------------------------------------------------------------------------
From: David Cheifetz
Sent: 10 August 2006 04:58
Subject: ODG: Law's (Il)logic

I'm looking for judicial statements about logic or appropriate methods of legal reasoning which trigger a double-take, which make one ask oneself "did the judge(s) really mean what the written words mean?".

For example, in Haag v. Marshall (1989) 39 B.C.L.R. (2d) 205, 61 D.L.R. (4th) 371, [1990] 1 W.W.R. 361 (B.C.C.A.) the court expressly stated that judicial reasoning need not be logical (by any meaning of logic) and yet will still be based on common sense and justice.

Where a breach of duty has occurred, and damage is shown to have arisen within the area of risk which brought the duty into being, and where the breach of duty materially increased the risk that damage of that type would occur, and where it is impossible, in a practical sense, for either party to lead evidence which would establish either that the breach of duty caused the loss or that it did not, then it is permissible to infer, as a matter of legal, though not necessarily logical, inference, that the material increase in risk arising from the breach of duty constituted a material contributing cause of the loss and as such a foundation for a finding of liability.

(213 BCLR - underlining added)

Then the court when on to state that whether that sort of "logical" inference should be made depends on whether it would be "in accordance with common sense and justice" (213) Putting this together, we have the court telling us that, for law, a common sense and just conclusion can be one which is not logical; that is, irrational.

The court didn't explain how the universe of inferences which are not logical can be anything other than irrational and how an irrational inference can be one based on common sense and justice.

Let's call this a whopper of a legal fiction and leave it at that, for now, even though the court didn't suggest that it was employing the fiction device by deeming this approach to be "logical". (Legal fiction is as good as any explanation for the Wilsher/Snell robust inference approach).

The higher up the pecking-order and the more explicit the better, of course.

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