Reasoning as a Civil lawyer v as a CL lawyer

deductive reasoning

gen abstract principle or gen, def as a starting point of the reasoning in order to apply it ot a particular case and individual facts

Civil law syst use a

syllogistic method in order to make it work , law must be based on gen rules (multiple gen pricniples are created)

method favoured by Fr

linked to a tendency to put legal concepts into cat

categories correspond

to the other major pemise and the operation of qualification correesponds ot the transition between minor premise and ccl

criticism

• The major premise is never self-evident. Affirming a general rule is true doesn’t make it valid, it can give rise to false syllogism.

• Sometimes judges make up new general principles in order to satisfy policy consideration (1991 => CCass: surrogacy is illegal, but legislators had not said anything yet

• Not necessarily any logic in the application of the major premise on the minor premise

• Very often it is not rare for a civil lawyer to have in mind a given conclusion in order to build backwards a syllogistic reasoning that will help achieve this conclusion.

inductive reasoning

based on the observation of particular phenomena of specific cases in order to create general principles or general rules.

applied to law IR means

that first step of creation of legal rules is to look at specific situation of facts

Criticism of IR

Impossible to observe all the factual occurrences of a given phenomenon, so this method can lead to inaccurate general rules (if you observe a number of swans and they’re all white and find one black one => invalidates the general rule).

most of the time IR isnt based on

observvation of all occurrences but more on probability assessment

Whenever the French legislator enacts a general principle

it is to answer individual needs

Whenever a deductive method is said to be applied, sometimes the true path of reasoning is not going to be general principal applied to the facts but

• Observation of factual elements

• Induction of a general rule

French reasoning is not that far from the English reasoning. The French reasoning sometimes changes to towards a more inductive style of reasoning

• The general principles we have in the CCivil have been induced by the observation of specific facts

• French legal principles are, sometimes, too general and too abstract and French courts have to find means to constrain these principles to more limited amount of situations.

Double movement of conversion

• French law has needed to adapt itself to specific situations and tends to particularize its rules more and more through inductive reasoning

• English law has adopted more general and broad principles which are aimed at dealing an important number of situations.

• this movement does not erase the general tendencies that exists within both systems.

france has drawn inspiration from

substantive def of roman dlicts

eng la has kept

procedural aspects of roman law and limited list of specific delicts