The Use of Syllogism in Judicial Reasoning and its Limits

Abstract

In this article we analyze the use of the judicial syllogism employed by the judge when applying the Law, when he argues and settles his decisions within the scope of his competence. The use of deductive reasoning in Law is paradigmatically represented by the use of the judicial syllogism, as it entails a series of theoretical and practical problems. As well as criticisms and limitations regarding its use. Thus, theorists debate on the existence or not of a special logic, different from the formal logic that is applicable in the Law and distinguish an easy case from a difficult one, or between internal and external justification. Subsequently, we examine and evaluate the arguments that have been produced about the importance of logic in Law, that is to say, legal logic and deontic logic. We also review the theory of syllogism and its criticisms, as well as its use in easy cases and its limitation in difficult ones. We analyze the propositions of Viehweg, Perelman, Toulmin, Alexy and MacCormick in regard to the main theme of our research.  Finally, we discuss the need to rely on a rhetorical, topical and dialectical reasoning.