Demushing the First-Year Law Student’s Mind: Aristotle to the Rescue?

By Kenneth Yin

Published on December 30, 2016

Introduction

First year students are told that they come to law school to learn to think like lawyers. So, we begin this discussion in Part 1, Minds Full of Mush, by illustrating the features of the mind untrained in legal reasoning, this being the logical starting point of that journey. In Part 2, Demushing the Mind of the First Year Law Student, we suggest that syllogism provides the template to master legal reasoning. Aristotle is regarded as the foremost champion of syllogistic thought – hence the reference to him in the title.

Part 1 – Minds full of Mush

First year law students appreciate that they are at law school to learn to think like lawyers. The need to think like lawyers is well expressed in the iconic ‘minds full of mush speech’ in ‘The Paper Chase’:

The study of law is something new and unfamiliar to most of you, unlike any other schooling you have ever known before. You teach yourselves the law, but I train your minds. You come in here with a skull full of mush and, if you survive, you leave thinking like a lawyer. Many law students will also say that good lawyers need to have passion and self-belief. These ideas are likewise enshrined in pop culture, such as in Elle Woods’ famous speech in ‘Legally Blonde’

On our very first day at Harvard, a very wise professor quoted Aristotle: ‘The law is reason free from passion.’ Well, no offense to Aristotle, but in my three years at Harvard I have come to find that passion is a key ingredient to the study and practice of law…

Since law students come to law school to learn to think like lawyers, the actual recognition of an untrained mind is arguably the logical starting point of the journey designed to end with its ‘demushing’.

In a reprise of the ‘skull full of mush’ idea, Professor James Gardner stated that:

Most people do not think in an orderly way. Thoughts do not traverse the mind like a military parade, four abreast in neat rows … not surprisingly, most people argue the way they think – haphazardly, without clear structure, and often without recognising or consciously understanding the logical connections between their own arguments and contentions [emphasis added].

An answer to a legal problem where the author has not shown the logical links between the law and its application is arguably then the paradigm illustration of that starting point. First year law students however will know little law and might struggle to appreciate an illustration based on authentic legal logic. They therefore should be provided with two types of illustrations, firstly based on commonplace reasoning; followed by some based on authentic legal doctrine. The following are simple illustrations based on commonplace ‘reasoning’:

Gordon must be a basketballer as he is so tall.

I have little doubt that the painting is a forgery, or it would not cost so little.

In the next series of illustrations, one should explore analogously flawed examples, but based on authentic legal principle, eg:

John committed deceit – Derry v Peek.

Quite clearly, Peter’s response was not an acceptance. Veronica’s argument is supported by the principles in Turner.

All suffer from similar flaws. In, say, Gordon’s example, there is an implicit assumption that ‘all tall people play basketball’; and the fact to which it is said to be applied is that ‘Gordon is tall’. This is said to lead to the ‘conclusion’ that ‘Gordon must be a basketballer’, but the analytical journey to that conclusion is unclear.

In the Derry example, similarly, the principles in Derry which are said to be relevant are not stated, nor the basis upon which it is argued that, based on them, John committed deceit. Exasperated lecturers who must assess such answers frequently describe them as resembling ‘alphabet soup’.

Part 2 – Demushing the Mind of the First Year Law Student

We commence this part by providing a simplistic definition of a ‘syllogism’:

1. Logic A form of deductive reasoning consisting of a major premise, a minor premise, and a conclusion; for example, All humans are mortal, the major premise, I am a human, the minor premise, therefore, I am mortal, the conclusion. 2. Reasoning from the general to the specific; deduction.

IRAC is an acronym for issue-rule-application-conclusion with which the reader will likely be familiar, as it is the formulaic legal problem template taught in law schools. IRAC itself is essentially a legal syllogism, as explained next:

IRAC is just another way of saying ‘the deductive syllogistic process.

Professor James Boland argued that the syllogism should provide the grounding for an understanding of legal analysis and reasoning and of IRAC.

The usefulness of the syllogism as a pedagogical tool for the teaching of legal logic can be illustrated by trying to convert the examples in PART 1 into syllogisms.

We start with Gordon, the tall basketballer:

Major premise: All tall people play basketball.

Minor premise: Gordon is tall.

Conclusion: Gordon must be a basketballer.

The major premise is unsupportable as the generalisation that all tall people play basketball is too sweeping to be realistic.

We now address the discussion of the forged painting:

Major Premise: Forged paintings are inexpensive.

Minor Premise: The painting in question is inexpensive.

Conclusion: The painting is a forgery.

These premises do not align to produce any supportable conclusion, and tinkering with them so they do align will likely result in an inextricable tangle – rather like trying to make a silk purse out of a sow’s ear.

One could not even create a syllogism out of the two ‘legal’ examples. The reader needs further information as to the content of the relevant legal principles as well as how they are said to be applied to the facts.

This criticisms and flaws in the reasoning in each respective example readily revealed themselves once we attempted to re-express them as an Aristotelian syllogism. Presenting the arguments in the form of an Aristotelian syllogism has enabled this outcome to be achieved. Immanuel Kant recognized this when he said:

Fallacious and misleading arguments are most easily detected if set out in correct syllogistic form.

Having been shown illustrations of mushy thinking, we suggest students will likewise be assisted by being shown the manifestation of a legally trained mind, as this would demonstrate the successful consequences of legal training. The Aristotelian syllogism again provides the means to achieve this.

Despite Elle’s express disagreement with Aristotle and the wise professor, her own journey through Harvard had actually demonstrated that both of them, and she herself, were equally ‘correct’. The defining moment of the movie, which marked the confluence of Elle-wisdom and Aristotelian logic, was Elle’s cross-examination of Chutney Windham, when she deduced that Chutney had not washed her hair; so, if we converted Elle’s cross-examination of Chutney into the premises of an Aristotelian syllogism:

Major Premise: The cardinal rule of perm maintenance is that one is forbidden to wet one’s hair for at least 24 hours after getting a perm at the risk of deactivating the ammonium thioglycolate. That is the type of thing that someone who had had many perms, say 30, in her lifetime, would know.

Minor Premise: Chutney had had at least 30 perms in her life and thus fell within the description of someone who had had many perms in her life. She would therefore know that it was a cardinal rule of perm maintenance not to wet her hair for at least 24 hours after a perm. She had had a perm the morning her dad was shot and would have known not to wash her hair that day.

Conclusion: Chutney did not wash her hair the day her father was shot.

The Chutney syllogism is accordingly a powerful allegory for Elle’s personal journey through Harvard which led to the courtroom that day, and underlines Elle’s attainment of the mastery of legal reasoning.

Two essential learning outcomes should be thereby have been achieved by the end of this lesson:

First, to demonstrate the power of the Aristotelian syllogism as the template for the development of problem solving skills; secondly – since students will easily recognise the underlying IRAC template in the Chutney syllogism (or something similar) – the provision of an entrée to IRAC, by demonstrating that IRAC is at its core the legal equivalent of the Aristotelian syllogism

Conclusion

Professor Boland lamented in 2006 that:

Unfortunately, most first year legal writing texts give the syllogism very truncated coverage, if any at all.

We agree, and therefore suggest that the teaching of syllogistic logic should be incorporated in the law curriculum.

This is an amended version of an article published by the author, please see Yin, Kenneth. Demushing the first year law student’s mind: Aristotle to the rescue? [online]. Brief, Vol. 43, No.

The Author

Kenneth Yin is a lecturer at the School of Business and Law at Edith Cowan University, Western Australia. He was admitted to practice in 1984 and practiced as a solicitor until 1996 and then as a barrister until his retirement in 2013. He practiced solely in commercial litigation and appeared primarily in the District and Supreme Courts of Western Australia, and also performed appellate counsel work in the Court of Appeal of that state. His recently published book ‘Legal Problem Solving and Syllogistic Analysis: A Guide for Foundation Law Students’ Butterworths Lexis Nexis (2016) adopts the application of practical syllogistic logic as the underlying basis for legal problem-solving. The impetus for its writing came from his realization from his many years in practice that lawyers without formal training in syllogistic logic to a greater or lesser extent nonetheless intuitively tended to express their arguments in syllogistic patterns. This led to him to adopt the practice of training first-year law students intuitively to think, and express their thoughts, in syllogisms, and for him to realize that mastery of this art is the blueprint to the understanding of legal logic. This is the central theme of the book.

Contrary to his predisposition towards pessimism, brought about by following Tottenham since 1961, Ken hopes to change the world of legal pedagogy by the methods in the book.

Article picture: SPOTSOFLIGHT via Pixabay