This article is written by Pranav Sethi, from SVKM NMIMS School of Law, Navi Mumbai. This article is an exhaustive analysis of critical thinking in the legal fraternity.

Introduction

“The function of education is to teach one to think intensively and to think critically. Intelligence plus character – that is the goal of true education.” ~ Martin Luther King, Jr.

We frequently lack clear standards for evaluating statements and arguments made in regular discussions, political campaigns, commercials, and the many other ways that ordinary language might be used. Critical thinking is a technique for assessing ideas that are presented in everyday, non-formal language. This argumentation talent, and the capacity to appraise the wide range of arguments that may occur in legal conflicts, should be emphasized in legal school. In this article, the main argument is that critical thinking skills enable lawyers to thrive even in difficult legal environments. As a result, there is a fine combination of professional and ethical motivations to teach critical thinking in law schools: it develops both cognitive and operational reasoning.

Legal reasoning, analysis, debate, and strategy all require critical thinking. “Critical-analytic thinking is viewed as a vital part of advancement and knowledge expansion in any scholarly discipline,” according to various scholars. They went on to say that it “is regarded to be a requirement for choosing the optimum course of action critical, complicated issues and is, thus, necessary to a democratic society that aspires to promote or preserve its citizenry’s welfare.” Graduates of legal schools are meant to be able to “think like a lawyer.” Although there may be some disputes regarding how to define “thinking like a lawyer,” everyone would acknowledge that critical thinking and problem-solving are vital components of demonstrating professional legal skills.

Defining critical thinking

Critical thinking is a procedure for identifying ideas that are expressed in normal, non-formal language. Formal disciplines like mathematics and logic provide specific rules for building “well-formed” statements or arguments (using these words interchangeably, but they have different meanings in more technical talks) and accepting and rejecting well-formed sentences (rules of inference). In contrast, we frequently lack clear rules for evaluating assertions and arguments made in everyday conversations, political campaigns, commercials, and the many other purposes to which common language might be put.

Towards being fair, if we could convert everyday statements into a formal language, we would be able to make more precise assessments. Unfortunately, our capacity to translate an ordinary statement into a formal language is reliant on our ability to recognize the structural features of that sentence (its logical form, in technical jargon), which we normally cannot do using completely statable rules.

The main function of critical thinking 

One of critical thinking’s main functions is to assist us in making such transitions from the ordinary to the formal. This function is fulfilled by critical thinking, which makes us aware of the speaker’s purpose, the situation, and certain sorts of interpretative issues. Critical thinking requires the same sort of judgment that enables us to understand the relative weights of a range of argumentative aspects in a particular setting, rather than well-defined prescriptions for effective reasoning that are at home in informal contexts.

Deductive and inductive argument

A valid deductive argument is one whose conclusion must be true if the premises are true. Even if the premises are true, a correct inductive argument does not guarantee that the conclusion is true—it just makes the conclusion probable. The premises of a sound argument (whether deductive or inductive) are true and behavior. Validity and correctness pertain to descriptive circumstances, but they can be extended to normative contexts; this extension is, of course, fundamental to legal reasoning.

Normative statements

Normative statements (e.g., “Shut the door,” “It is morally wrong to kill an innocent person for fun,” etc.) are neither true nor incorrect, according to popular belief. The conceptual position of legal sentence fragments is complicated by the fact that they appear to order when notified by competent authorities (imagine a legislature passing a statute providing that ‘Individuals whose taxable income is above $1,000,000 a year shall pay a tax of 50% on income’), but they appear to be descriptive sentences when stated by law professors (imagine a law professor saying, ‘Individuals whose taxable income is above $1,000,000 a year shall pay a tax of 50% on income’).

Complications in legal sentence structure 

Additional complications occur when lawyers use legal sentence structures that are neither authoritative nor (exclusively) informative. Such as the legal sentences used by lawyers to persuade judges that someone is or is not lawfully liable over a certain behavior. Imagine a district attorney saying, in the course of an argument trying to persuade a court that the defendant is guilty of tax evasion, ‘Individuals whose taxable income is above $1,000,000 a year shall pay a tax of 50 percent on income’.

Development of deductive validity concept 

The concept of deductive validity could now be developed to include both descriptive and normative arguments, in which the qualities of acceptance, rationality, and legitimacy must be conveyed from premises to conclusions. Thus, a sound judicial decision (e.g., a murder conviction) is the result of a legitimate (in the broadened form), a deductive argument whose premises are valid (in the second definition), legal regulations (e.g., a murder ban approved by Congress), true propositions (e.g., a proposition stating that the defendant murdered someone).

People are usually looking for sound arguments because researchers are looking for genuine or fair conclusions. Deductive arguments that are sound follow specific structural principles or logical forms, such as the rule that permits us to deduce proposition q from propositions If p, then q, which expresses the ‘conditional’ statement in its most comprehensive form, and p. Inductive arguments are also dependent on prior assumptions, the relevance, and acceptability of which cannot be determined mechanically. As a result, sound analogy arguments—a sort of inductive argument—must follow the following pattern:

Objects of type X have properties F, G, H, and so on.

Objects of type Y have properties F, G, H, and so on,

and also an additional property Z.

Therefore, objects of type X have property Z as well

Even if analogical reasoning executes this structure, it is still invalid. Because the similarities indicated in the premises must be positively relevant to the similarity declared in the conclusion, this is the case. Furthermore, the number of similarities and variety of type Y items must be significant. The extent to which these prerequisites are met is determined by underlying assumptions. Furthermore, determining what constitutes a significant number of similarities is dependent in part on unresolved concerns about property individuation. For example, whether the property of being a particular shade of yellow differs from the property of being a different shade of yellow. Claims of positive significance to the conclusion’s resemblance are based on sophisticated causal assumptions.

Centre of legal reasoning : evaluation and fabrication

This is where the explanation of the lawyer’s primary pattern of thought is elaborated. It’s referred to as “research and fabricating important facts of the case.” Lawyers break down legal issues into components, or parts, of wrongdoing or a complaint, and then examine each aspect individually. So, if the parts of a murder crime are intent, cause, death, and a lack of excuse, they assess each of these elements individually before combining the results for a complete picture. It’s not a difficult task. 

However, it differs from what a layperson may do, which is to get to a decision less from individual components evaluation and much more comprehensively or impressionistically. “That’s murder” or “that’s stealing,” a layperson could conclude or, in common vernacular, “that’s a fraud,” without going through the analytical stages that the law requires it. Behavioral scientists have confirmed that humans, more than we’d like to believe, are more complex. They admit that many at times people first arrive at conclusions and analyze later wherever it is possible, the legal profession is challenging. 

Step-by-step points to perform evaluation and fabricating facts 

1. Allowing yourself to consider logically before concluding allows you to slow down the process. The key to successful legal written form is this method of study and interpretation. Break the offence or claim into elements in the first paragraph or part of your argument: evaluate the claim. Examine each aspect separately in succeeding paragraphs or chapters to see if it is factually delivered.
2. Once a person has accomplished this, it’s simple to “fabricate,” or examine all of the components to see if they make up the offence or claim in question. This is the chapter’s or paragraph’s final paragraph. It is dry and artistically predictable, yet the elegance of its function is its beauty. Like other academic writing, good legal written work should be limited to what is required to achieve the conclusion, and nothing more.

Role of “if, then” in legal limitations or obligations 

Most legal limitations or obligations, even those in a contract, are expressed logically as “if-then” statements: “if x, y, and z, then a.” “If what?” is the initial analytical question. What is contained in the if-then statement’s “if” portion? Those are the elements of the crime, claim, or contractual obligation, respectively. In order to figure out “if what,” We merely read the legislation or contract to see what circumstances it lays forth for the legal repercussions in question. We know what goes in the “if” section once we know the elements. The “then” component of the statute describes the implications.

We don’t know which prospective “if-then” statements to reference until we see if some of the “ifs” are matched, therefore this analytical procedure is repetitive and inductive. We look at the “if-then” statements that are possibly satisfactory by the factual information we find first, and then we evaluate them to see whether they’re completely fulfilled. This is similar to a doctor employing differential diagnosis to figure out what ailment an individual is experiencing. As they add to the factual information, the doctor examines the patient’s condition and narrows the “diagnosis.”

The lawyer uses a similar strategy to come up with a claim, much as the doctor asks first if the patient reports, then if the patient has a fever, then if the patient coughs, and so on until they come up with a diagnosis. The clinician or lawyer may discover no condition or claim since all of the elements of any known disease or claim aren’t met. For instance, for a legal obligation for a civil (non-criminal) wrong, or “tort,” there must be :

1. A duty;
2. A violation of that duty;
3. Causing harm to a person owed the duty;
4. Where there is no defence such as necessity or contributory negligence.

There is legal accountability for the tort if each of these elements is met.

As a consequence, legal analysis involves (a) breaking down each legal rule into a list and (b) determining if each condition is met to establish legal liability. Significantly, the factors are usually connected in a conjunctive manner; if any requirement is not met, the legal obligation is not triggered. The question of whether an act is illegal or legal is answered by research and interpretation. The analysis breaks down the restriction or condition into separate conditions, which are then evaluated one by one to see if they are all met. The formulation just checks to see if each condition has been met to put it straightforwardly.

The rules of logic and the rules of inference

In court and everywhere else, lawyers provide formalized arguments. A formal argument must be aligned with formal reasoning and it must start with a body of information and develop from there, utilizing logic or reasoning rules. To think like a lawyer, you must first learn how to think. Isn’t it surprising? This article does not provide a systematic introduction to formal logic, but it does highlight some of the most common fallacies that can stifle debate or conceal sophists’ deception.

The rules of inference are the customary or consensus of opinion theological conventions that inform us whether it is acceptable to construct a fact premised inference premised on a specific quantity or quality of data. They are derived from across all fields of science the aspects wherein we understand stuff. Researchers and economists, for example, have a well-developed set of inference principles that they employ in their work. These rules may appear arbitrary, yet they have been adopted as a good framework for dialogue by consensus.

Principles of inference as a social choice

One must remember that whether the judicial system or any other decision-making process, accepts these principles of inference as a social choice (Logic’s rules are pretty much indisputable). As everyone may be aware, nations have legal evidence criteria for many things; in the United States, the conviction of a crime needs proof beyond a reasonable doubt. This is a higher threshold than one often applies to determine if someone is a criminal in our daily lives. A statistician might use an alternative specification to identify the probability of a causal relationship than “proof beyond a reasonable doubt.” In fact, statistical research suffers from causal correlations, although it can reveal fascinating correlative correlations.

For example, factual evidence can illustrate how smoking raises one’s chances of getting lung cancer. However, it does not explain how or even prove that smoking causes cancer. Correlative relations are “circumstantial” evidence, which researchers frequently dismiss, yet they can still be important in rational arguments. One might be seeing a television or film courtroom drama in which an attorney dismisses “circumstantial” evidence, but the reality is that circumstantial evidence is frequently good, if not conclusive, the foundation for the conclusion. The majority of what we know is dependent on guesswork.

Standard of proof

The extent to which a party must show its argument to succeed is known as the standard of proof. The necessity to fulfill that standard is known as the burden of proof, or “onus.”

Criminal law system 

In terms of winning a conviction in criminal law, the prosecution must establish their case beyond a rational question. This isn’t to say they have to prove their point with absolute deductive (mathematical) certainty. Even if the relevant legal theory (if A, then B) is evident, the facts (A) must still be demonstrated. And there will always be some type of inductive, and thus probabilistic, reasoning involved. Even if the offender is (supposedly) identifiable on the surveillance camera, there is still the possibility that it is someone wearing a mask designed to imitate someone else.

This leads to the question of what constitutes “beyond a reasonable doubt” in terms of the probability – or potential. In some scientific applications, a score of 95% is considered sufficient to “refute the null hypothesis,” which is the equivalent of “refuting the presumption of innocence.” In some cases, a probability of 99 percent is sufficient.

Civil law system

The needed standard of proof in civil law is far lower. If the plaintiff’s case is stronger “on the balance of probability” (or “balance of evidence”), they will be successful in demonstrating the defendant’s liability. This implies that even a small probability advantage is enough to win the decision. This has its own set of issues, especially given how much is riding on the outcome. Fifty-one percent probability does not appear to be significantly better than 49 percent. 

Fallacies

Bad reasoning is just as important to logic as good reasoning. Logicians have discovered several common reasoning fallacies that go beyond the mere falsehood of premises. They have uncovered several argument types that look to be deductively sound or inductively powerful (or cogent) but aren’t. Fallacies are arguments that deceive people into believing that they are excellent when they are not. Basic mistakes in reasoning can result in fallacies. And it appears that humans are more vulnerable to specific types of errors, possibly due to fundamental structural elements of their brains or deep structural features of their social position.

The prosecutor’s fallacy

The prosecutor’s fallacy is the most well-known example of systematic faulty reasoning (in the red-herring category) in a legal context. With the introduction of DNA fingerprinting, this has become much more important, and it has resulted in serious miscarriages of justice. The term appears to have been coined by attorney and social psychologist William Thompson and his student Edward Schumann in response to a deputy district attorney’s argument that if a defendant and perpetrator match on a blood type found in 10% of the population, there is a 10% probability that the defendant would have the blood type if innocent, and thus a 90% probability that the defendant would have the blood type if guilty.

Random match probability

The 10% number is known as a random match probability or the likelihood that a randomly chosen individual will demonstrate the feature in consideration. There is no way to estimate a probability of guilt from such a figure. It is, on its own, a red herring in an attempt to determine the possibility of guilt.

At the very least, one needs knowledge on the pool of potential offenders – individuals who may or may not have committed the crime. If anyone else in a population of 100,000 people could have done it, the compatible blood types restrict the number down to 10% of that number — 10,000 people. Instead of 90 percent, the match suggests a 1-in-10000 likelihood of being guilty.

Prosecutor’s fallacy confusion

The prosecutor’s error characterizes the chance of innocence given a match (the figure of interest to the judge and jury) with the probability of innocence given a match (the random match probability). Cases such as the following demonstrate how these are not the same thing; the probability of being ahead of the state or CEO of a major corporation given that you are a man is virtually zero.  The probability that you are a man given that you are ahead of state or CEO is virtually 100%.

If you are innocent, the random match probability (in this case, 10%) is the probability that your blood type matches that at the murder site. However, as previously stated, a logical estimate of the probability of innocence given a match is dependent on the population of prospective perpetrators as well as any other relevant evidence. In fact, there are several factors to examine in every case involving biological tissues at the crime scene:

1. First, due to laboratory errors that result in false positives, a reported match [in tissue types] may not be a true match.
2. As a result, we must evaluate the laboratory’s “error rate.” Second, if the match is coincidental, a defendant who produces a true match may not be the source of the trace; even rare tissue types can appear in more than one individual, especially in biological relatives.
3. Third, if someone else intentionally or unintentionally brought the defendant’s biological materials to the crime scene, a defendant who is genuinely the source of the trace may not have been present at the scene. Finally, a defendant who was present at the crime site might not be guilty – they could have left a trace before or after the act, or they could have been an innocent bystander.

A relativist objection

Here’s one possible counter-argument to the claim that critical thinking about the law will assist judges, attorneys, and other users of legal language. Unsound arguments may benefit rhetorically from a legal culture that is antagonistic to critical thought. Assume that persons popularly recognized as legal experts or authorities are unwilling to modify their minds (at least, their publicly stated opinions) when confronted with the fallacies that support their positions. One can even visualize lawyers, lawmakers, and judges displaying argument patterns that allow them to dismiss critical thinking principles and standards as illogical, irrelevant, or otherwise defective. Nonetheless, they regard themselves as engaging in the very same argumentation process as critical thinkers.

Any game is characterized by rules that only apply to those who are prepared to engage in it; it does not influence individuals that choose to play another tournament. Critical thinkers, importantly, are inclined to carry the existing game, though in an abstract sense; after all, by exposing the existing fallacies, critical thinkers perceive themselves as executing moves in the argumentative match that individuals of the current legal culture participate in as well. Critical thinkers are in the same boat as soccer players who vehemently disagree with every call made by the referee yet continue to play.

As a result, they would be unable to disrupt the normal regulatory civilization since they support rules and regulations for evaluating argumentation that the current culture denies. We may even presume that the hypothetical legal culture I’m creating is in a state of rhetorical equilibrium. Practitioners of legal texts, in other words, respond to a framework of incentives that promotes those who publicly participate in (particular kinds of) truth-insensitive argumentation and penalizes those who don’t: given what others do, it’s optimal for each to continue reasoning as they do.

Corrupt legal culture

Incentives and punishments can take many aspects ranging from improved or even worse job possibilities in legal academics or the courts to the number of cases won versus lost. This type of incentive structure gives rise to the legal culture one is imagining, i.e., the prevalent legal argument techniques in judicial processes, academia, the media, congressional debates, and so on. Let’s term such a culture a corrupt legal culture. A relativist argument to the premise that critical thinkers will perform much better in the range of roles done by legal professionals may arise from reflection on a corrupted legal culture.

Truth-sensitive tactics fail in a corrupt legal society. Nonetheless, no one is compelled to participate in the game that such a culture entails, with its various strategies, participants, and payoffs. The presence of a corrupt legal system, on the other hand, generates a marketplace for critique in nations that require everybody to play an Orwellian argumentation game. Academics and journalists, for example, will profit from writing books and op-ed pieces critical of the current culture. Denunciatory marketplaces are attracted to intellectual impostures, and extensive intellectual impostures are common. These markets become even more appealing as a result of impostures. Critical minds have a competitive advantage in those denunciatory markets, where rewards and penalties are inverted. Social criticism has shown to be a marketable product at all times and in all places.

Market for demystification

As a result of the establishment of a market for demystification, the opportunity cost of playing the current game rises. The personal penalty of openly accepting poor legal arguments will rise as critical thinking about legal matters spreads. To be certain that, the corrupt legal culture I’m imagining lacks internal penalties for faulty reasoning (for example, appellate reversal of ill-grounded trial-court decisions, with negative consequences for trial-court judges’ careers), but the opportunity cost of playing the corrupt game, as quantified by the benefits derived of switching to the critical-thinking game, will rise.

Conclusion 

Businesses for demystification emerge from corrupted legal institutions and critical thinkers can use exogenous factors to dramatically weaken a corrupted legal system. Critical thinking is thus more than just a useful tool for attorneys and judges who want to advance in their careers. It allows agents to achieve worthwhile goals without making things worse if they pursue unworthy goals carelessly—all too often, agents who pursue unworthy goals carelessly simply delay their achievement, and there’s no reason to assume they’ll do much good in the meanwhile. By implying that critical thinking has more than that utilitarian usefulness. A community of critical thinkers is one in which everyone respects good thinking standards. Whatever the particular elements of the legal provisions are, the community has already taken a critical step toward the rule of law when solid logic leads the discussion of legal matters. Because it is ruled by rules rather than people, and no one can create or manipulate those rules.

References

• https://www.lawyer-monthly.com/2019/10/critical-thinking-skills-are-vital-to-working-in-law/

• https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.researchgate.net/publication/45266705_Critical_Thinking_and_Legal_Culture&ved2ahUKEwjYwdX3tbjxAhVCOSsKHZ5TAScQFjALegQIGRAC&usg=AOvVaw2QA46OQUQGxEoGfmzhEL4h&cshid=1624817885750

• https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3534346

• https://www.google.com/url?sa=t&source=web&rct=j&url=https://law.pacific.edu/sites/default/files/users/user242/week-oe-legal-skills.pdf&ved=2ahUKEwjYwdX3tbjxAhVCOSsKHZ5TAScQFjAPegQIDRAC&usg=AOvVaw25wuMrwrUnrDS_Ra0zVBWq&cshid=1624818009225

• https://www.google.com/url?sa=t&source=web&rct=j&url=https://law.scu.edu/wp-content/uploads/Law-Review-Creative-thinking-in-Law-schools.pdf&ved=2ahUKEwjuhcOpuLjxAhXC7XMBHXs9BxoQFjAOegQIGhAC&usg=AOvVaw1WeG8FXZUvTVY77x2tk0jn

• The Tools of Argument: How the Best Lawyers Think, Argue, and Win; Joel P. Trachtman, CreateSpace Independent Publishing Platform, 2013

• Law  in Perspective: Ethics, Society and Critical Thinking; Michael Head, Scott Mann, UNSW Press, 2005

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