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Criical Legal Thinking - Week 1 - Lecture 1 Introducion Q: Should prisoners be allowed to vote?  Controversial and debated in several countries.  People here might feel they shouldn’t lose that enitlement, and others think they shouldn’t be allowed.  You may agree with my conclusion. Student 1: O...

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Critical Legal Thinking - Week 1 - Lecture 1 Introduction Q: Should prisoners be allowed to vote? 

Controversial and debated in several countries.

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People here might feel they shouldn’t lose that entitlement, and others think they shouldn’t be allowed.

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You may agree with my conclusion.

Student 1: One reason why they should is that it might undermine democracy. Student 2: Prison is designed to curtail your civil liberties. 

We are in an artificial setting here.

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These 2 arguments were given as I asked them to give them.

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Often you have to defend a view you think is correct and persuade someone.

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As lawyers you’ll be in the business of giving arguments.

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This course is how to argue, how to improve them, to understand and criticise them.

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How to avoid fallacious arguments, and how to spot the in other peoples’ lines of reasoning.

First, we need to understand a basic proposition and motion. This is a sentence, proposition. First student says if we accept the first sentence, we ought to accept the second sentence. 

Both giving arguments and reasons.

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A method we’ll be introducing and refining over the lectures, if we want to be completely clear we can link these 2 sentences with the word ‘ therefore’, and make explicit, even though it wasn’t voiced, it’s clear that the 3rd sentence is what the first student believes.

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If it’s true that democracy could be undermined if prisoners couldn’t vote, then they should be allowed to do so.

3 sentences on the board, numbered for ease of reference. 

Indication of how they are meant to be related.

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Sentence 2 is a substantive reason.

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Sentence 3 is a conclusion.

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Sentence 1 was communicated though not explicitly is the link between the two.

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Could do the same for the 2nd student’s argument.

On the board, we have a reconstruction of the arguments. There are things they could have said that do not feature on the board. We may say things like ‘ I think that… linguistic elements that are not part of the argument. We’re trying with this artificial way of representing what is communicated. We do this so we have a complete argument and can look at it and decide if it’s good or bad. Many might think prisoners should be allowed to vote, but not for the reason of this argument. Student 3: I question the link between the two. Make a challenge against the first sentence. 

One way of challenging an argument is to take issue with one of the claims which is being given to support a conclusion.

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The claim that Student 1 is giving is called conclusion of the argument.

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The other claims are the premises.

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A challenge against Student 2’s argument, that prison is designed to curtail civil liberties.

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Does it support the conclusion as well as it should?

Student 4: I agree with the conclusion, but not the argument. Prison is designed to curtail some civil liberties. But link between the two isn’t as tight. 

Is prison aimed at rehabilitation of prisoners? Partly. Incorporation of someone being able to vote is part of that.

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The discussion normally has to do with the duration of their sentence.

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I’m not taking a view myself but am concerned with the notion of giving arguments on claims.

Introduction If ___, then ___ If criminal sanctions should aim at the rehabilitation of offenders, then prisoners should be allowed to vote. = CONDITIONAL SENTENCE If _, then_: 

conditional sentences play crucial role in argumentation.

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Any conditional is a complex sentence. If it’s well formed in English, it’s made up of 2 other wellformed sentences.

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In each of the blank spaces, you’ll find a complete sentence in English.

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If criminal sanctions should be aimed at rehabilitation, then prisoners should be allowed to vote.

Introduction

If ___, then ___ If criminal sanctions should aim at the rehabilitation of offenders, then prisoners should be allowed to vote = ANTECEDENT 

The first part of a conditional sentence is the antecedent.

Introduction If ___, then ___ If criminal sanctions should aim at the rehabilitation of offenders, then prisoners should be allowed to vote = CONSEQUENT 

The second part of any conditional is the consequent.

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The reason we say it’s a complex sentence is there are 2 complete but simpler sentences embedded in it.

Introduction If ___, then ___ If criminal sanctions should aim at the rehabilitation of offenders, then prisoners should be allowed to vote. 

Structure – any conditional sentence has the same. We’re interested in this, helpful to have a way of depicting that. p and q stand for antecedent and consequent of the conditional.

p = criminal sanctions should aim at the rehabilitation of offenders Introduction If ___, then ___ If criminal sanctions should aim at the rehabilitation of offenders, then prisoners should be allowed to vote p = criminal sanctions should aim at the rehabilitation of offenders q = prisoners should be allowed to vote Introduction If p, then q If criminal sanctions should aim at the rehabilitation of offenders, then prisoners should be allowed to vote p = criminal sanctions should aim at the rehabilitation of offenders q = prisoners should be allowed to vote 

If p then q. The skeleton, the form of any conditional sentence.

Introduction 

(1) If p, then q

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(2) p

Therefore (from (1) and (2)), (3) q 

(1) If p, then q

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(2) p

Therefore (from (1) and (2)), (3) q (premise) (premise) (conclusion) 

We can represent the form of each of the 2 arguments in the same way.

Introduction • Premise (1) will be a conditional sentence • Premise (2) will affirm the antecedent of premise (1) • The conclusion will be the consequent of premise (1) The form of the first premise, what would be the form of the 2nd? 

1st premise – antecedent: if democracy would be undermined if prisoners not allowed to vote.

Consequent: then prisoners should be allowed to vote. If we want to represent the form of premise 2. 2nd premise – antecedent. p stands for the sentence - democracy would be undermined if prisoners not allowed to vote. What is an argument? 

(1) If p, then q

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(2) p

Therefore (from (1) and (2)), (3) q (premise) (premise) (conclusion) • This is not an argument: it is the form of an argument 

In any argument of this form, the conclusion follows from the premises: what this means is that if the premises are both true, the conclusion cannot be false.

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That is what we call a valid argument.

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(There are many other forms of valid argument.)

What is an argument? But a valid argument is not necessarily a good one: we also want the premises to actually be true. Consider: (1) If today is Friday, then prisoners should be allowed to vote.

(2) Today is Friday. Therefore (from (1) and (2)), (3) Prisoners should be allowed to vote. Is this argument valid? What is an argument? But a valid argument is not necessarily a good one: we also want the premises to actually be true. Consider: (1) If today is Friday, then prisoners should be allowed to vote. (2) Today is Friday. Therefore (from (1) and (2)), (3) Prisoners should be allowed to vote. This features twice in Student 1’s argument. We use the same letter. Student 4’s argument. The word ‘therefore’ connects. We write it after 1 and 2, to make it extra clear, rigorous, even pedantic. This represents the structure of Student 1 and 2 argument. 1 conditional sentence as premise no. 1, and have premise no. 2 affirm the antecedent. And both in conclusion derive the consequence. You have here the form of an argument, you get the actual argument if you substitute the p and q with actual sentences. Infinite number of examples would be instances of this form. It has an important characteristic. It’s a valid argument. The conclusion will follow from the premises. That means that if the premises are true, the conclusion must also be true. Is this argument valid? Valid argument is one in which, if the premises are both or all true, the conclusion can not be false. The conclusion follows from the premises. Or the premises entail the conclusion. Any arguments to this pattern are valid. Modus bonus ? We’ll also come back to Is it then a good argument? Why – or why not? 

Validity is not everything. Eg. today is Friday example.

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Exactly the same pattern, but not a good argument.

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Argument is valid, but we can attack a premise.

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So what challenge? What does the fact that today is Friday have to do with whether prisoners should be allowed to vote?

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And today isn’t Friday. We want our arguments to have premises that are actually true.

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We want them to be valid but also to be sound and have premises that are all true.

Summing up (1/2)

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An argument is a group of claims arranged in a particular way.

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A group of claims is arranged as an argument when (a) one of the claims (called the “conclusion”) is treated as controversial (that is, as a claim to be demonstrated, argued for), and (b) the other claim(s) (called the “premise(s)”) are put forth as claims meant to establish the conclusion.

The claims are meant to support the conclusion if true. They are the premises. Arguments can be valid or invalid. If true, the conclusion will also be true. Summing up (2/2) 

An argument is valid when the conclusion follows from the premises (in other words, when the premises imply the conclusion). That means that it is not possible for the conclusion to be false if the premises are all true.

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A valid argument can have false premises and a true conclusion, or even false premises and a false conclusion.

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The only thing a valid argument cannot have is true premises and a false conclusion.

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A valid argument is sound when all the premises are actually true.

Should be clear that an argument can be valid, have false premises and a true conclusion. Also, a false conclusion. 

Only think we cannot have a valid argument when the premises are all true, and the conclusion is false. There is no course book for a course like this.

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There is a text on what an argument is which recaps what I said today. All materials you need are in lecture and tutorial materials.

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We call a valid argument sound when all premises are true.

This course 

This is a course about arguing, reasoning, and thinking critically about law

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Wednesday lectures will be dedicated to collectively discussing practical examples: you should read the materials in advance of each lectures.

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Six tutorials (weeks 3, 5, 6, 8, 10, and 11)

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One final exam with two components.

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One optional formative assessment in week 7 (worth 5 bonus marks for students who get every question right).

Week 1 Materials for Wednesday 13 January 2021 The following is an extract from Taylor v Lawrence [2002] EWCA Civ 90: W1.1 [T]he outcome of litigation should be final. Where an issue has been determined by a decision of the court, that decision should definitively determine the issue as between those who were party to the litigation. Furthermore, parties who are involved in litigation are expected to put before the court all issues relevant to that litigation. If they do not, they will not normally be permitted to have a second bite at the cherry. Question How many arguments can you spot in this passage? The claimant in JSC BTA Bank v Ablyazov [2012] EWCH 2543 (Comm) was seeking a declaration that the defendant had acted in breach of a Freezing Order that prevented him from dealing with his assets without judicial permission. This is an extract from the judgment: If [the defendant] wished to deal with his assets he had to obtain the permission of the court. Since he failed to do so it follows that he has acted in breach of the Freezing Order. Questions Identify the conclusion and the premises of the argument just quoted. Does it look valid? How would you reconstruct it? Consider this passage from Decision J 17/90 (1991) of the Board of Appeal of the European Patent Office: The appeal complies with Articles 106 to 108 and Rule 64 EPC and is therefore admissible. Question Is this an argument?

Critical Legal Thinking Week 1 Lecture 2 Remember what we’ve seen on Monday: 

An argument is a group of claims arranged in a particular way.

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A group of claims is arranged as an argument when (a) one of the claims (called the “conclusion”) is treated as controversial (that is, as a claim to be demonstrated, argued for), and (b) the other claim(s) (called the “premise(s)”) are put forth as claims meant to establish the conclusion.

What is an argument? 

A group of claims, at least 2, proposition being defended.

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1 claim is the conclusion, to persuade the audience of, and another claim is used to establish the conclusion.

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Argument will succeed if the reasons establish the conclusion.

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Definition. An argument when one is controversial, the conclusion. The other claim/s are the premises.

Exercise W1.1 “[T]he outcome of litigation should be final. Where an issue has been determined by a decision of the court, that decision should definitively determine the issue as between those who were party to the litigation. Furthermore, parties who are involved in litigation are expected to put before the court all issues relevant to that litigation. If they do not, they will not normally be permitted to have a second bite at the cherry.” 

How many arguments can you spot in this passage?

St 1: 2 maybe 3. 

How many can we think of? This passage written by a judge, informal way by which the judges communicate. We have the written text. A good deal is not communicated explicitly, but implicitly. When looking for arguments, we have to look what is implicitly communicated.

St. 1 used the 2nd sentence, said it looked like a conditional statement. 

Is the court saying that a decision has been made on any matter?

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Could we think of an argument that anyone might construct?

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Take the conditional, assert the antecedent as 2nd premise and arrive at the consequence of the conditional as a conclusion. That argument isn’t in the passage.

St. 2: Last sentence is also conditional in form. Is this enough for us to have an argument? An argument is a group of claims. This conditional sentence is one single claim, on its own it can’t count as an argument. The notion of a claim and a sentence are not equivalent. We can have one sentence that makes several claims. With the right punctuation or conjunctions, we can have several claims. Often our sentences

however express only one individual discrete thought. The last sentence is just one thought. If the parties don’t provide the right evidence before the Court, they can’t have a second go. we could take this conditional and construct any argument. But is the Court here giving an argument? St. 3: First half of the sentence, to be clear about how we should read passages like this. 1 st sentence – no argument. We can’t as we only have one line. It could be part of an argument, which the rest of the passage might express. It could be the conclusion or the premise of an argument, or not an argument at all. Exercise W1.1 — “[T]he outcome of litigation should be final.” — “Why?” — “Where an issue has been determined by a decision of the court, that decision should definitively determine the issue as between those who were party to the litigation.” • The “Why?” question here is a demand that the arguer show that the claim is true: it is a request for reasons that show that we should indeed accept the claim as true. That is what giving an argument involves. 

2nd sentence. Not an argument. If we put the 1st with it, we have an argument. We then need a conclusion and at least one premise

Exercise W1.1 “[T]he outcome of litigation should be final. Where an issue has been determined by a decision of the court, that decision should definitively determine the issue as between those who were party to the litigation. Furthermore, parties who are involved in litigation are expected to put before the court all issues relevant to that litigation. If they do not, they will not normally be permitted to have a second bite at the cherry.” How many arguments can you spot in this part of the passage? 

After 1st 2 sentences, the 1st sentence is the conclusion, the 2nd sentence is the premise. 2nd sentence looks like the 1st, the same point being made with fancier words.

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2nd sentence is just a repetition, why does that mean we can’t have an argument?

Exercise W1.1 

Here (third and fourth sentences) the Court could perhaps be understood to be offering an explanation ofwhy it is that (as a matter of law) parties involved in litigation are not normally “permitted to have a second bite at the cherry.”

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But this is a different sort of “Why?”

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It is the “why” of explanation, not the “why” of argumentation.

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The difference is not immediately obvious, but it is an important one.

1st sentence could be conclusion of an argument. My why question is a demand for an argument. Why should I agree with that?

Exercise W1.1 

An explanation assumes that something (the “explanandum”, that which is to be explained) is true, and specifies its causes; it purports to show why it is true.

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Example: “The reason that Parliament passed this law is that it wanted to give effect to an EU directive.”

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An argument, by contrast, does not assume that the conclusion is true: rather, it treats the conclusion as a controversial claim, and purports to demonstrate that it is indeed true.

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So when we say “Why?” to ask for an argument, what our question means is (roughly) “Why should I agree with you that that claim is indeed true?”

Exercise W1.2 

“If [the defendant] wished to deal with his assets he had to obtain the permission of the court. Since he failed to do so it follows that he has acted in breach of the Freezing Order.”

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This is clearly an argument. How can we tell?

Exercise W1.2 

“If [the defendant] wished to deal with his assets he had to obtain the permission of the court. Since he failed to do so it follows that he has acted in breach of the Freezing Order.”

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The first question to ask is always this: What is the conclusion of the argument?

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The defendant acted in breach of the Freezing Order.