Date: Thu, 10 Aug 2006 08:28:16 -0400

From: David Cheifetz

Subject: Law's (Il)logic

Ken, Steve:

While it's possible to read the Haig statement to mean that Lambert JA was referring only to deductive reasoning, not inductive reasoning, I think that's a too kind reading - not the least because the case is an early example of the argument that material increase in risk is a sufficient material contribution to amount to probable cause. There may have been and may now be some logical content to the English version of that test. The Canadian version means nothing or everything (simultaneously).

I agree that a conclusion reached without the aid of logic isn't necessarily illogical. But being able to show that it's logical (inductively or deductively) if you've reached the conclusion without the aid of either form of logic is different.

What's left? (We have, of course, the gap the HL leaped in Fairchild.) That is, it is still possible that conclusion may be logical but one has no analytically valid basis for saying it probably is. So, if one says the conclusion "probably" is correct, one is asserting that proposition based on (ahem) faith.

And if I can rely on "common sense" inferences not supported by any form of logic, what's the basis for restricting my reliance to common sense?

Law has to (formally) deny that is analytical procedures are based on, a priori, faith, right? If it admitted that, it would make law's process no more valid than religion.

In Haig, the court was dealing with the issue of finding of factual cause which has to be made on a more probable than not basis and his ultimate point was an early version of Fairchild as it was before Barker v Corus "Wilsherised" (coining a verb) it; that is, that evidence which established nothing more than that conduct increased the risk of some harm occurring was evidence that that conduct was a cause of the harm - an early Canadian leap over Jane Stapleton's gap. I don't think the case can be read to mean just that the court acknowledged that evidence wasn't actual proof of cause but would be deemed to be evidence of actual cause.

David

-----Original Message-----
From: Ken Oliphant
Sent: August 10, 2006 7:53 AM
Subject: Re: ODG: RE: Law's (Il)logic

Just following up on Steve's point:

I think the courts (and Holmes) assume that a "logical" inference is one that follows from deductive (eg syllogistic) reasoning, as opposed to inductive reasoning. But, as Steve notes, there's nothing "illogical" about the latter.

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