ABSTRACT
It is tempting to think that the position in English law is, in terms of knowledge, not that different from the position on the continent. It has of course been said that English law is a practical, rather than a logical, code and that, following Judge Holmes, ‘the life of the law has not been logic; it has been experience’.22 But legal knowledge both on the continent and in the common law world is much more sophisticated than this crude logic-and-common sense dichotomy suggests.23 For a start, the civil law judge is not as logical as tradition seems to dictate;24 precedent, interpretation and argumentation have central roles behind the scenes even if they do not appear on the face of the judgment. Also, this interpretation involves the facts as much any code.25 Furthermore, in English law, propositional logic would seem not to be entirely absent. According to Lord Simon, a ‘judicial decision will often be reached by a process of reasoning which can be reduced into a sort of complex syllogism, with the major premise consisting of a pre-existing rule of law (either statutory or judge-made) and with the minor premise consisting of the material facts of the case under immediate consideration’. And the ‘conclusion is the decision of the case, which may or may not establish new law’.26 Similarly, in Home Office v Dorset Yacht Co,27 Lord Diplock thought that legal analysis, in respect of duty of care in the tort of negligence at any rate, involved a two-stage approach. The method adopted at the first stage is analytical and inductive, while at the second stage it is analytical and deductive. Logic was not the whole story of course, since policy choices were involved in the initial selection of precedents to be analysed; consequently the premise from which the deduction is made is not a true universal. Yet, the process can again be seen as involving the syllogism and thus legal knowledge itself could be said to be a matter of pre-existing legal propositions and legal reasoning to be a matter of applying these propositions to facts (the application of existing law to the facts judicially ascertained).
