Logical reasoning versus legal reasoning
29 February 2000
Many people think that the law uses a very different kind of reasoning from
science or classical critical thinking. To the extent that science and classical
thinking engage in absolutes, this may indeed be true. But if one adopts the
ideas of conjectural knowledge and working hypotheses, the law is not so
different. For example, "finding" someone guilty or not guilty based
on probabilities of less than 100% rather resembles choosing a working
hypothesis.
In reading Herbert L. Packer's "A
Measure of the Achievement," I was struck by how similar his steps in
legal reasoning about the assassination were to the steps in our
critical/scientific approach. He formulated the question, listed the critical
physical evidence (and ignored evidence from witnesses), chose a hypothesis,
tested it against the physical evidence, sought out other hypotheses consistent
with the physical evidence, chose the most reasonable working hypothesis, and
considered witness testimony in a corroborative role. We formulate the question,
list all possible hypotheses, list all the relevant strong evidence, find all
hypotheses consistent with this evidence, choose the simplest of these as our
working hypothesis, continue to challenge it with new evidence, and occasionally
consider the strongest witness evidence. I submit that these two approaches are
essentially identical even though the order of their steps differs slightly. The
following table highlights their similarities:
Packer's legal method | Our critical/scientific method |
1. Formulate the question. | 1. Formulate the question. |
3. Choose a hypothesis. | 2. List all possible hypotheses. |
2. List the key physical evidence. | 3. List all relevant strong evidence. |
4. Test it against the physical evidence. | |
5. Try other possible hypotheses against the physical evidence. | 4. Find all hypotheses consistent with this evidence. |
6. Choose the most reasonable hypothesis as the working hypothesis. | 5. Choose the simplest hypothesis consistent with the strong evidence as the working hypothesis. |
6. Challenge the working hypothesis with new evidence. | |
7. Consider appropriate witness evidence for possible corroborative value. | 7. Consider the strongest witness evidence, as appropriate. |
Note how minor the differences are: (1) we list hypotheses before evidence,
whereas Packard lists evidence before hypotheses; (2) Packard chooses and tests
one hypothesis before trying others, whereas we list and test all hypotheses in
a group; (3) we challenge or working hypothesis with new evidence, whereas
Packard doesn't.
In short, the best legal method is virtually the same as the best
critical/scientific method. This extremely important result means that there is
one best way of working with evidence, and both the law and the classical arts
are using it. Therefore we must learn to use it fluently if we are to get
the right answer for the assassination.