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LEARNING UNIT 8 -

This document discusses the complexities and characteristics of legal language, highlighting its formal and archaic nature, and the need for simplification to improve clarity and accessibility. It also covers reasoning methods in legal argumentation, including inductive and deductive reasoning, and outlines five fallacious methods of argument that can undermine legal discourse. The emphasis is on the importance of clear communication in the legal field to ensure understanding and avoid manipulation.

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danielle.nortje08
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3 views

LEARNING UNIT 8 -

This document discusses the complexities and characteristics of legal language, highlighting its formal and archaic nature, and the need for simplification to improve clarity and accessibility. It also covers reasoning methods in legal argumentation, including inductive and deductive reasoning, and outlines five fallacious methods of argument that can undermine legal discourse. The emphasis is on the importance of clear communication in the legal field to ensure understanding and avoid manipulation.

Uploaded by

danielle.nortje08
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
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LEARNING UNIT 8

LEGAL LANGUAGE, ARGUMENT AND LOGIC

Theme 1: Legal language

Chapter 16 (pp 366-381)

Examples of legalese: excerpts from legal texts

S v Sixaxeni 1994 (3) SA 733 (C)

We leave unanswered such questions as whether or not the


provision

applies only to a Division of the Supreme Court sitting as a Court


of

first instance, whether or not it applies both to cases in which, in


disposing of the matter, the Division has itself decided a

constitutional issue within its jurisdiction, and to cases in which,

because the issue is beyond its jurisdiction, it has not, whether or


not it is open to a party who has refrained from raising a
constitutional

issue during the hearing and seeking appropriate relief, to raise it

after judgment has been given, whether or not the provision is

intended solely to enable a Court mero motu to refer an issue to


the Constitutional Court, and what impact, if any, the decision of
the

Constitutional Court is to have upon the disposal of the matter by


the Court a quo or, if it is to have an impact upon it, how that is
to be achieved.

Characteristics of legal language (LO1)

(p 368-369)

 Formal language and often archaic or foreign words and


phrases are used (see examples from excerpts)
 The formal style is strikingly apparent
 Sentences are written in the passive form
 The sentences are long and complicated
 Long and complex sentences require extensive
punctuation
 Legal language tries to cover all possibilities by being
overly specific
 Verbs are often formed into noun
 The words ‘shall’ is used repeatedly
 Sentences are written as condition

Why is legal language so formal and complex (LO2) (p


369)
Because:

 Legal language is an instrument for legal certainty

– Lawyers try to avoid ambiguity in contracts, wills and statutes

 Law is built on authority and tradition

– truths are cast in timeless forms;

– precedents builds on previous decisions and formulations

– pro forma precedents can be recycled without thought

 Language helps in building an illusion of consistency

– Language must remain fixed and stable

 Complex and difficult language keeps law inaccessible, ensures


lawyers’

indispensability and enhances their status

Why legal language should be simplified (LO3)

 Clarity of language

– Use of language should not be overly obscure or formal

 Easy to understand - persons accessing the legal system


should be able to understand what is going on, for example

– Original version

Section 2 Application of Act: The provisions of this Act shall apply


to all South African citizens, whether in the Republic or outside
the Republic, including persons who are not South African citizens
but who sojourn permanently or temporarily in the Republic, for
whatever purpose.

– Simplified version
This Act applies to (1) South African citizens; and (2) non-South
African citizens in the Republic

 Easy to access

Various methods to simplify legal language (LO4) (pp 369-


370)

 Writing should be short and concise


 Avoid the passive form. Formulate sentences in the active
voice, subject – verb – object
 Write in paragraphs, each with one main theme or thought
 Avoid negative formulations (e.g. It is not inconsistent )
 Use punctuation functionally but not excessively, use
headings and subheadings
 Write in ordinary English. Avoid too much formality. Avoid
words such as ‘said’ and ‘thus’
 Good writing makes communication easy. Reread what you
have written

LEARNING UNIT 8

LEGAL LANGUAGE, ARGUMENT AND LOGIC

Theme 2: Legal argument and logic

Chapter 17 (pp 382-394)

Inductive reasoning (LO5) (pp 382-386)

 Thought process (technique of argumentation) by which a


general conclusion is drawn from specific facts
 A search for generally applicable truths from specific
observations
 Human knowledge is based on induction – we draw inferences
on what we see, hear and experience
 To be reliable, a conclusion must be based on facts that are
known and not mere speculation
 A conclusion must be based on a representative or adequate
sample
 Inadequate factual basis can easily lead to an invalid
conclusion
– E.g. There is nothing you can tell me about boxers – I know
Johnny
 In law inductive arguments are used
– Credibility of witnesses
– Presumptions help prove facts
– Judicial notice
– Circumstantial evidence
– Res ipsa loquitur (the matter speaks for itself)
– Legal rules of common law

Deductive reasoning (LO6) (pp 386-388)

 Works the other way round

 A general statement is applied to specific circumstances


to arrive at a conclusion

 Examples
 All humans are mortal ( general). Sarena is a human (
specific). Therefore: Sarena is mortal ( conclusion)
 Someone who kills another with intention (a) is guilty of
murder (b) ( general) The accused (c) killed the deceased
with intention (a) ( specific) Therefore: The accused (c) is
guilty of murder (b) ( conclusion)
 A valid deduction must be based on a primary hypothesis that
is true
 If you use deductive process, you may reach a logical
conclusion
 If your starting premise is invalid, your conclusion will be
invalid

Five (5) fallacious methods of argument (LO7) (pp 388-


392)

1. Manipulation of words

 Arguments are made up of words


 Words may be used in their ordinary meaning
 But words have also an emotive meaning (or connotation) to
manipulate (to argue or convince)
 Example: a judge calling the accused’s deed a ‘cowardly,
atrocious and evil action’ to justify the imposition of death
penalty
 Techniques of verbal persuasion (words woven together) are
rhetorical language
 Rhetoric language is used to move or persuade readers and
listeners

Five (5) fallacious methods of argument (LO7) (pp 388-


392)

2. Playing the player ( ad hominem)

 Sometimes rugby or football players play the other player


and not the ball (due to frustration or anger)
 Participant in debates may shift the attention away from the
issue to be argued to the person arguing (side-stepping
thorny issues)
 Also known as ad hominem argument
 Example?
 Lawyers must be wary of getting involved in personal
vendettas with court opponents

Five (5) fallacious methods of argument (LO7) (pp 388-


392)

3. Shifting the goal posts

 Extending the issue so that if falls outside the initial


boundaries (or playing field)
 Attempt to avoid addressing the issue
 An argument in favour of the death penalty, a person argues
that the criminal justice system does not generally show
sympathy to victims and their families

Five (5) fallacious methods of argument (LO7) (pp 388-


392)

4. Extreme alternatives
 A very clever technique is to reformulate an issue as a plain
choice between two extreme alternatives
 Example of the death penalty debate:
Supporting death Supporting freedom penalty for murderers

Five (5) fallacious methods of argument (LO7) (pp 388-


392)

5. Circular argument (begging the question)

 Most easily recognised as an argument where the conclusion is


already contained in the starting point (premise)
 Something claiming to be proof is exactly the issue that
must be proved
 Also known as ‘begging the question’
 Example
 Proving the truth of the Bible by quoting the Bible itself to
answer questions about its truthfulness

Five (5) fallacious methods of argument (LO7) (pp 388-


392)

6. Non sequitur (it does not follow) arguments

 Sometimes a conclusion is portrayed as the necessary


consequence of one event or statement when it is, in fact,
not the case
 When two events are illogically linked as cause and effect
 The conclusion does not follow the premise
 Example
 Mrs. X made a speech at a conference that female priests
should be allowed.
 Subsequently, women were allowed to become priests
 Therefore: Women became priests because Mrs. X made a
speech at a conference that women priests should be allowed

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