LEGAL REASONING
and
LEGAL METHODOLOGIES
Assoc. Prof. Dr. Nuyen Thi Phuong Hoa
Assoc. Prof. Dr. Phan Nhat Thanh
Assoc. Prof. Dr. Le Huynh Tan Duy
LECTURER INFORMATION
• Full Name : Le Huynh Tan Duy
• Position : Vice Dean of Criminal Law Faculty, Head of
Criminal Procedure Law Division, Secretary of Science and
Academic Council
• LLB (2003) : HCMULAW (Vietnam)
• LLM (2006) : Lund University (Sweden)
• PhD (2013) : La Trobe University (Australia)
• Assoc. Prof. (2022): HCMULAW (Vietnam)
• Major research fields: Criminal Procedure Law, Law on
Enforcement of Criminal Judgments, Juvenile Justice
LECTURER INFORMATION (cont.)
• 50 articles and book chapters
• 04 scientific research pieces
• 08 books
Course Objectives
l Understand the reasoning of judges’
decisions
l Comprehend theoretical issues on legal
writing, reading, interpretation and
argument
l Practice essential skills for legal reasoning
study
l Apply knowledge of, and skills for, legal
reasoning in future occupation
Marking
lParticipation: 50%
ü Contributive answers
ü Valuable questions
ü Group presentation
ü Special award
lFinal exam: 50%
ü True/false statements
ü Analysis questions (doctrines/cases)
Study Documents
l Antonin Scalia & Bryan A. Garner (2012), Reading
Law: The Interpretation of Legal Texts,
Thomson/West
l Neil MacCormick (1978), Legal Reasoning and
Legal Theory, Oxford Univerity Press
l Rechard K. Neumann, Jr. and Kristen Konrad
Tiscione (2013, 7th ed.), Legal Reasoning and
Legal Writing, Wolters Kluwer Law & Business
l Trần Việt Dũng (Chủ biên), Đào tạo luật thông qua
mô hình phiên toà giả định [Teaching Law through
Moot Court]
l…
COURSE OUTLINE
CHAPTER 1. INTRODUCTION TO LEGAL
REASONING
CHAPTER 2. READING TEXTS ABOUT
LAW AND TEXTS OF THE LAW
CHAPTER 3. LEGAL ARGUMENT
CHAPTER 4. MEMORANDA AND BRIEFS
CHAPTER 5. ORAL ARGUMENT
CHAPTER 1
INTRODUCTION TO LEGAL
REASONING
CONTENTS
I. THE STUDY OF LEGAL REASONING
1. Concept
2. Purposes of legal reasoning study
3. Skills required for legal reasoning study
II. THE ART OF LEGAL REASONING
1. The language as a professional tool
2. Predictive writing and persuasive writing
3. Planning, rewriting, and work habits
CONTENTS (cont.)
III. EFFECTIVE LEGAL WRITING
1. Clarity and vividness
2. Conciseness
3. Forcefulness
4. Punctuation and other rules of grammar
IV. PARAGRAPHING
1. Goals of paragraphing
2. Characteristics and types of paragraph
3. Thesis sentence, topic sentence, and transition
sentence
I. THE STUDY OF LEGAL REASONING
1. Concept
What is “legal
reasoning“?
1. CONCEPT (cont.)
Broad sense:
“The psychological
processes undergone
by judges in reaching
decisions in the
cases before them.”
Psychological processes
comprise of:
l Ideas
l Beliefs
l Conjectures
l Hunches
l Feelings
l Emotions
Why “judges”?
Narrow sense:
“The arguments that
judge gives, frequently
in written form, in
support of the decisions
they render”.
Arguments consist of:
l Reasons for the decisions
l Justifications for the decisions
2. Purposes of legal reasoning study
§ The study of legal reasoning in the
broad sense = the study of judicial
psychology and biography à
• to know judges and their psychology
• to understand what impacts judges’
decisions
§ The study of legal reasoning in the
narrow sense = an inquiry into the “logic”
of judicial decision making:
• kinds of arguments judges give
• the relationship between the reasons and
the decisions, the adequacy of these
reasons as support for the decisions
• Applying this knowledge in one’s career
3. Skills required for legal reasoning
study
v Critical thinking skills
v General and specific language skills
v Intellectual and technical skills
v Argument construction
3.1. Critical thinking skills
l Essential skills
What is critical thinking?
• Mental activity that helps formulate/
solve a problem, make decision/fulfill a
desire to understand
• Critical thinking is a high-grade activity
of thinking
• A set of skills and attitudes that are
deployed logically and selectively to
evaluate arguments
l The ability to be:
– Curious (being interested in
learning)
– Flexible (being able to adopt
easily to different situation)
– Skeptical (questioning that
something is true and useful)
Critical thinking skills include:
l Reasoning logically
l The ability to locate underlying assumptions
(searching for hidden assumptions;
justifying your own assumptions; judging
the rationality of those assumptions; testing
the accuracy of those assumptions)
l Analytic and argument skills
Exercising judgments shall be based upon
careful:
l Observation of the issues relevant
l Investigation to the matter to which
a judgment is to be
l Consideration made
Tips for developing critical
thinking skills?
3.2. General and specific language
skills
l Grammar, spelling, vocabulary,
punctuation
l Appreciation of the influence and power
of language
3.3. Intellectual and technical skills
l How to locate primary and secondary
sources of materials
l How to read texts of the law and the texts
about law
l How to write (using references, summaries,
notes,…)
Primary source
Direct evidence or original sources of information
created at the time the event occurred
Information which was recorded
first-hand soon after the event occurred.
accounts of
event
data collected
for scientific
studies
historical
documents
Primary Source
Nelson Mandela wrote his
autobiography about events
in his life called “Long Walk
to Freedom: The
Autobiography of Nelson
Mandela”. This is a primary
document because he wrote
his first-hand experiences.
Secondary source
General In legal
meaning profession
§ derived from
primary source
§ written about provide
primary sources summaries and
§ analyze, interpret, interpretations of
and discuss the law and facts
information about
the primary source
To evaluate if the source is primary or secondary à
Check the context and purpose of its use
Why should we use primary sources?
l To explain how major events are related
to each other in time
l To think critically and distinguish
between facts and opinions
l To develop your own conclusions and
analyze how historical events affect
relevant parties
Why should we use secondary
sources?
l To get expert opinions in order to
evaluate what really happened
l To gain insight by examining the same
event from different perspectives
l To form your own opinion
l To save time by reading information
collected from a number of different
sources
COMPARISON
Primary source Secondary source
§ Created at the time of an § Created after event;
event, or very soon after sometimes a long time
after something happened
§ Created by someone who § Expresses an opinion or
saw or heard an event an argument about a past
themselves event
§ Often uses primary
sources as examples
To evaluate if the source is primary or secondary à
Check the context and purpose of its use
Strength Weakness
Primary § High accuracy § Time consuming
sources § Hard to find
Secondary § Ease of access § Quality of research
sources § Low cost to acquire § Not specific to your
§ Clarification of research needs
question § Incomplete information
§ May answer your own § Not timely
research question
Reading sources
Ask these basic questions:
– Who wrote this?
– What does it say?
– When was it written?
– Where was it written?
– Why was it written?
Summing up
It is important to determine the type
of information you are looking at.
§ Primary sources are original sources of
information.
§ Secondary sources summarize,
analyze, or criticize primary sources.
§ Both primary and secondary sources
can be good sources of information, but
you need to critically evaluate them.
In legal research, legal reasoning
l Primary sources = law generated by a
governmental body or cases.
l Secondary sources: other resources
which may be written by lawyers or
judges or other legal professionals
which comment on the law, categorize
the law or otherwise interpret the
primary sources.
In legal reasoning
l Primary sources can be
either mandatory (binding)
or persuasive.
l Secondary sources are
always persuasive
authority.
l The researcher is always
looking for primary
sources which are
mandatory.
Some Examples
Primary or
secondary source?
3.4. Argument construction
l Construction
l Evaluation
l Interpretation
l Deconstruction
II. THE ART OF LEGAL REASONING
1. The language as a professional tool
lThe role of language in general
lThe role of language in legal
profession
The role of language in general
§ a means of communication
The thoughts are explained and known through the
language
The role of language in legal
profession
Language: professional tool in legal
profession
The role of language in legal
profession (cont.)
If your reader’s/listener’s attention is
drawn to the obscurities and other
faults in your writing/presentation, you
and your client will suffer for several
reasons.
First, the typical reader begins to resist
and may not finish reading because
lawyers and judges are busy people who
do not have time wade through difficult
writing.
Second, the reader is tempted to
consider you unreliable/unprofessional
because mediocre use of the language
implies general mediocrity as a lawyer.
Third, the busy reader may
misunderstand what you are trying to
say. Legal writing should give the viewer
a quick and clear view, without
distractions, of the idea behind it.
Characteristics of legal language
l ordinary words with specialized
meaning (lawsuit)
l Latin words and phrases (mens rea -
guilty mind, actus reus - conduct)
l Norman French (per se)
Characteristics of legal language
(cont.)
l Claims that words can be used with
precision
l Ritualized word forms (ex: the truth, the
whole truth and nothing but the truth)
l Use of words with flexible meanings
(reasonable)
Question:
The role of language to lawyers?
à Viewing it in various aspects
2. Predictive writing and persuasive writing
● Predictive writing:
two purposes
To advise clients To plan litigation
The legal memorandum
l The most common type of predictive
legal analysis
l It may include the client letter or legal
opinion.
Functions of predictive writing
l predicts the outcome of a legal question by
analyzing the authorities governing the
question and the relevant facts that gave rise
to the legal question
l explains and applies the authorities in
predicting an outcome, and ends with advice
and recommendations
l serves as record of the research done for a
given legal question
Persuasive writing:
● the most rhetorically stylized
● framed as an argument
● argues for one approach to
resolving the legal matter and does
not present a neutral analysis
Functions of persuasive writing
§ to persuade a deciding authority to favorably
decide the dispute for the author's client
usually submitted to judges (but also to
mediators, arbitrators, and others)
§ to persuade the dispute's opposing party
3. Planning, rewriting, and work habits
l Well organized
l Complete
l Clear
l Concise
l Forceful
l Accurate
Question:
Which work habits are useful to legal
profession and how to build them
up?
Which work habits should be
avoided in legal profession and how
to cure them?
Good work habits
l Comprehensive and critical views
l Well-structured
l Concentrating (not to be distracting)
l Language: exact, concise
l Style: coherent, cohesive
l Argument: logic
l Evidence, proof
III. EFFECTIVE LEGAL WRITING
1. Clarity and vividness
l Find the “right” word
l Straightforward, avoid the word that
blurs meaning
For example: “The victim indicated that
the defendant had held the gun.”
lPrecise (exact and careful, avoid
insecurity in convoluted
construction)
Figure out exactly what should be said
and then say it precisely (be confident
of writing and reduce fear).
The insecure writer who is not sure
what to say may try to hide that
insecurity in convoluted constructions.
The insecure writer who is not sure
what to say may try to hide that
insecurity by writing:
The above captioned appeal is
maintained by the defendant as a direct
result of…
Rather than:
The defendant appeals because…
To understand the importance of clarity in
law, consider two things:
l Prove everything you say
l No matter how important the issue, your
reader will be able to spare only a
limited amount of time to ponder what
you write.
2. Conciseness
Important in legal writing for reasons:
l Concise writing is by nature more clear and
often more precise;
l The typical readers of legal reasoning have no
time to spare, therefore, they will either resent
inflated verbiage or will simply refuse to read it.
l Something about legal work paradoxically
creates a temptation to sell a simple expression
into something ponderous and pretentious.
Compare two versions of the same analysis
It is important to note When the parties
that, at the time when agreed to the sale,
the parties entered neither knew the
into the agreement of cow was
purchase and sale, pregnant.
neither of them had
knowledge of the
cow’s pregnant
condition.
Because of the fact that The seller had
the cow, previous to the assumed that the
contract, had not become cow was infertile
pregnant, despite planned because she had
and observed exposure to not become
bulls whose reproductive pregnant when the
capacities had been seller tried to breed
demonstrated through her with known
past experience, the seller stud bulls.
had made the assumption
that the cow would not be
able to produce offspring.
Due to the fact that the seller Because the seller had
had made a statement to the told the buyer about
buyer describing the cow’s the cow’s history, the
opportunities to reproduce buyer did not
and the failures thereof, investigate further.
there would have been, in the
buyer’s thinking, no purpose
to any further investigation
or inspection he might have
considered making.
For these reasons, the Thus, the contract did not
contract did not include a provide for an increase in
provision for an upward the purchase price if the
modification in the cow should turn out to be
payments to be made by fertile.
the buyer to the seller in
the event that the cow
should later prove to be
capable of reproduction.
How did the verbose first
draft on the left become the
concise final draft on the
right?
First, some sentences were
rewritten.
l A person or a thing did something
l Carefully chosen nouns and verbs
l Many modifiers became unnecessary
because their meaning has been
incorporated into nouns and verbs (and
sometimes into more succinct modifiers).
The cow’s pregnant
The cow was pregnant
condition
Despite planned and
observed exposure to bulls
whose reproductive He tried to breed her
capacities had been with known stud bulls.
demonstrated through past
experience.
There would have been, in
the buyer’s thinking, no
purpose to any further The buyer did not
investigation or investigate further.
inspection he might have
considered making.
Second, phrases were
eliminated if they didn’t add any
meaning.
It is important to note Was deleted because the
that “importance” is
communicated by the
sentence’s placement
and, ironically, by the
rewritten version’s
brevity
previous to the contract Was deleted because it is
communicated by the
context
Third, each word and phrase was
weighed to see if the same thing
could be said in fewer words.
at the time when
entered into the agreed to the sale
agreement of
purchase and sale
neither of them neither
had knowledge of knew
Because of the fact that Because
had made the assumed
assumption
would not be able to was infertile
produce offspring
Due to the fact that Because
had made a statement to had told
describing the cow’s about the cow’s history
opportunities to
reproduce and the
failures thereof
For these reasons Thus
include a provision for provide for
an upward modification an increase in the
in the payments to be purchase price
made by the buyer to
the seller
in the event that if
the cow should later the cow should turn out
prove to be capable of to be fertile
reproduction
3. Forcefulness
l Should the government regulate on
early marriage, ex. 18 for males and 18
for females?
Agree Disagree
M. Human rights of every person (right A. Early marriage negatively influences
to family, discrimination) physical and metal health of young
couples
N. Saving living costs as a couple B. Early marriage can cause economic
burden on young couples (financial
difficulties)
K. One way to protect young girls as C. Not having enough
they are protected by their husbands experience/conditions to grow up their
(prevention from sexual assaults) children
High rate of divorce à social burden
High rate of abortion
L. Happier couple life as young people D. Negatively affects on the education of
are easier in adapting to each other in young girls because of the role of a
the family life mother/a wife
Well-planning of their own life, the sense
of family responsibility
Should the government regulate on early marriage?
Agree Disagree
1. Suicide epidemic caused by social isolation, A. Pregnancy and uncontrolled birth à
marriage will be helpful to solve the problem cannot educate children
2. Early settlement helps them to get stable B. Do not have time to develop their
development in their career own career
In the couple, they can discuss and develop their
career together
3. Increase in the number of elderly people, early C. Insufficient finance
marriage and giving birth will help to develop new
generations
4. Early marriage helps us to realize our D. Giving births/ pregnancy can lead to
responsibilities towards family and children. It physical health problems.
gives us responsibilities and so we are more
mature in our thinking
5. Money saving as the couple or the whole family
can share using things
6. Mental supports between couples will help them
in their personal as well as professional life
How should you structure
your arguments and why?
3. Forcefulness (cont.)
l Forceful writing leads the reader
through ideas by specifying their
relationships with one another and by
identifying the ideas that are most
important or compelling.
Relationships between ideas can
be made clear through transitional
words and phrases, and through
demonstrative sentence structure.
accordingly in fact
additionally (in order) to
although in spite of
analogously in even that
as a result instead
because moreover
but nevertheless
consequently not only ..., but also
l Some transitional words and phrases
are stronger than others.
l Be careful to select those that
accurately represent the relationship at
hand and that claim neither too little nor
too much.
For example: demonstrative sentence
structure – the other tool for showing
logical relationships – includes, among
other things, the following:
The amended court rule
provides for such sanctions,
which eliminates the need to
rely on any inherent powers
Subordinate sentence
the court might or might not
elements showing
have to punish attorneys
affirmative relationships
whose vexatious conduct
multiplies the court’s work.
Although the attorneys here
argues that he made these
motions only after a
thorough review of this
Subordinate sentence
court’s precedents, he has
elements showing
not been able to cite a single
negative relationships
decision in support of his
position.
The conduct of this attorney
is at least as egregious as
Joinder independent that of other attorneys who
sentence elements to have been so punished: not
emphasize logical only has he served and filed
relationships a frivolous pleading, but he
has made several equally
frivolous motions.
l Forcefulness in legal writing is to
identify the ideas that are most
important or compelling, and there are
several ways of getting that across.
An emphasized idea can be placed at the
beginning of a sentence, paragraph, or
passage, where it will be most quickly
noticed. OR:
A series of sentences can be arranged
that lead up to one that succinctly
conveys the emphasized idea.
Example
This attorney served and filed a pleading alleging
extremely unlikely facts without making any factual
investigation.
He made numerous frivolous motions, including one
for a preliminary injunction where his clients were in no
way threatened with harm. He has now brought an
appeal without any basis in statute or precedent, and
he has submitted a record and brief not in compliance
with the court’s rules. He has throughly disregarded
the professional obligations of an attorney. He has
thoroughly disregarded
4. Punctuation and other rules of grammar
See: Richard K. Neumann, Jr., Kristen
Konrad Tiscione, Legal Reasoning and
Legal Writing (Wolters Kluwer Law 7
Business, 2013) pp. 202 – 203.
IV. PARAGRAPHING
Why should we divide our writing into
paragraphs?
What criteria for dividing our writing
into paragraphs?
1. Goals of paragraphing
l break your material up into
digestible chunks
l to help you discipline yourself to
confront and develop each theme
inherent in the material
l make your organization apparent
If you can summarize your paper in one
sentence, you’re more likely to have a
tightly-constructed, concise, and
readable document.
Example
lThis document examines whether
customary law should be more
effectively recognized in Vietnam.
lThis document looks at arguments
in favor of and against early
marriage and the governing law.
2. Characteristics and types of
paragraph
2.1. Characteristics of paragraph
l Unity
l Completeness
l Internal coherence
l Readable length
l Announces or implies its purpose
2. Characteristics and types of
paragraph (cont.)
2.2. Types of paragraph
l Descriptive paragraph
§ describe conditions or events
§ convey information without analysis
l Probative paragraph
§ prove propositions that help resolve
issues
3. Thesis sentence, topic sentence,
and transition sentence
3.1. Thesis sentence
l a sentence (or two) that states what you are
going to do in your document as a whole.
l a kind of a signpost – something that tells you
where to go – or a map that shows the reader
what direction your paragraphs will take.
l normally comes at the end of the introduction.
3.2. Topic sentence
• A topic sentence is oftenly the first
sentence in a paragraph.
• The topic sentence should identify the
main idea and point of the paragraph.
l The supporting details in the
paragraph will develop or explain
the topic sentence.
l The topic sentence should not be too
general or too specific.
When considering the options, look for a
topic sentence that is general enough to
show the paragraph’s main idea
instead of just one of its details.
l A good topic sentence is concise and
emphatic. It is no longer than the idea
requires, and it stresses the important
word or phrase.
Topic sentence should be:
l Short
l Simple
l Clear
l Give a strong idea
Example 1
There are three reasons why Canada is one of
the best countries in the world. First, Canada
has an excellent health care system. All
Canadians have access to medical services at
a reasonable price. Second, Canada has a high
standard of education. Students are taught by
well-trained teachers and are encouraged to
continue studying at university. Finally,
Canada's cities are clean and efficiently
managed. Canadian cities have many parks
and lots of space for people to live. As a result,
Canada is a desirable place to live.
Example 2
Many Western jurists of the eighteenth and nineteenth
centuries sought to make legal reasoning conform to
syllogistic logic. The rules of law declared by legislatures,
courts, and legal scholars were viewed as major premises, and
the fact situations of particular cases or the terms of particular
legal problems were viewed as minor premises. The decision
of a case, or the resolution of a legal problem, was thought to
follow inevitably from a proper juxtaposition of the major and
minor premises. Given a rule or doctrine defining burglary, or
contract, or any other basis of legal duty, it was thought only
to be necessary to determine whether or not a particular act
fell within the definition in order to determine whether or not
legal responsibility should attach to it. It was supposed by
many that if the entire body of law could be summarized in a
set of rules, the sole remaining task of law would be to classify
particular facts under one rule or another.
Example 3
In Vietnam, land cannot be owned either by individuals or by
entities, whether they are Vietnamese or foreigners. The
Vietnamese Constitution explicitly provides that land is owned
by the entire people of Vietnam and that the State administers
the land for the people. Individuals, households or entities,
however, may become land users (“land user”) and have land
use rights (“LURs”) in accordance with the Land Law and its
implementing regulations. Land use is very complex in Vietnam.
The considerations are social, historical and economic. Rights
differ depending, among other things, on how land is received,
the nature of the transferor, nature of the transferee, etc. As you
will see through out this paper, there are also other variables.
In Vietnam, land cannot be owned either by individuals or
by entities, whether they are Vietnamese or foreigners.
The Vietnamese Constitution explicitly provides that land
is owned by the entire people of Vietnam and that the
State administers the land for the people.
Land use is very complex in Vietnam. Individuals,
households or entities may become land users (“land
user”) and have land use rights (“LURs”) under the Land
Law and regulations. Land use rights depend on different
factors, such as: how land is received, the nature of the
transferor, nature of the transferee and other variables.
3.3. Transition sentence
Transitions are the sentences or words that
allow readers to follow the flow of an
argument.
Transitions help you to achieve your goals
by establishing logical connections between
sentences, paragraphs, and sections of your
papers.
3.3. Transition sentence (cont.)
• Transitions between sections
• Transitions between paragraphs
• Transitions within paragraphs
