LAW & PHILOSOPHY by Akinade ADESOKAN (DOVE)

LAW & PHILOSOPHY by Akinade ADESOKAN (DOVE)

When Fallacies Make Sense in Justice (WFMSJ - Part 1)

To start with, philosophy and law are two sides of a coin in the sense that while philosophy ignites the fire of questions, law extinguishes it. Fallacy simply means an error in reasoning. It is the use of invalid or otherwise faulty reasoning or ‘wrong moves’ in the construction of argument. An argument is a series of statements typically used to persuade someone of something or to present reasons for accepting a conclusion or judgment. Most fallacies are in form of appeals: appeal to authority, appeal to ignorance, appeal to pity, appeal to emotions, appeal to moderation, appeal to hypocrisy, inter alia. Others include begging the question, red herring, slippery slope, ad hominem, among others.
Fallacies are considered to be bad, however, nothing is absolutely bad. This is reflected in the Yoruba saying that ‘omo buruku ni ojo ti e loto’ meaning ‘a bad child has his own good days,’ which tends to discourage the act of disowning a child due to his bad attitude since he will still be useful in a way. In the light of this, there have been a plethora of cases where these so-called errors were employed as instruments of attaining justice and maintaining peace. In this part, only three fallacies will be considered:

1.As regards Fallacy of Moderation otherwise known as False Dilemma which asserts that conclusion must be found as a compromise between two opposite positions:

•A typical example is the procedure adopted by King Solomon in reaching his judgment between two mothers living in the same house. In this case one of the babies had died, and each claimed the living one as her own. Calling for a sword, King Solomon declared his judgement: ‘the baby would be cut into two, each woman to receive half.’
One mother did not contest the ruling, declaring that if she could not have the baby then neither of them could, but the other begged the King to spare the baby’s life and to give the baby to the other woman. The king declared the second woman the true mother, as he concluded that a mother would do anything to save her baby’s life. This judgment became known throughout all of Israel and was considered an example of profound wisdom.

•Similar to this is the Indian Jataka story dealing with Buddha in one of his previous incarnations as the sage Mahosadha. He arbitrated between a mother and a Yakshini who kidnapped the mother’s baby and claimed he was hers. The sage announced a tug war: he drew a line on the ground and asked the two to stand on opposite sides of the line, one holding his feet and the other his hands – the one who would pull the baby’s whole body beyond the line would get the baby. The mother released the child when she could not bear the pain the child was experiencing. Hence, she wept as she surrendered the baby to Yakshini. When the sage saw that, he turned the baby back to the hands of the true mother, exposed the identity of the Yakshini (a female mythical being) and subsequently expelled her.

2.As regards Fallacy of Tu quoque otherwise known as ‘You Too’ fallacy which intends to discredit the opponent’s argument by asserting the opponent’s failure to act consistently in accordance with its conclusion(s):
•The biblical account of the judgement given per Jesus Christ in the case of The Adulteress v. The Teachers of Law and the Pharisees (John 8). In this case the plaintiffs claimed that the accused was caught in the act of adultery and that she deserved to be stoned to death in accordance with the Law of Moses. While applying the principle of equity (grace), the Arbitrator said,
‘Let anyone of you who is without sin be the first to throw a stone at her.’
Subsequently, everyone disappeared leaving only the Arbitrator and the accused person at the scene of the trial.  Hence, she was discharged and acquitted saying,
‘go and sin no more’.

•In The case of Ojukwu v. Mil Gov of Lagos State [1986] 1 NWLR (pt 18) p.621, the clean hands principle was upheld to the effect that equity will not favour a party in maintaining a status quo created by his own wrong doing. The Supreme Court in this case refused to hear the appeal of the Military Governor of Lagos State since it had initially flouted the order of the Court of Appeal. This could then be taken to mean that the plaintiff’s misconduct automatically relieved the defendant of his liability.

3.As regards argument from analogy or fallacy of questionable analogy which involves drawing conclusion upon the basis that two or more things share similar properties;
•The Latin phrase ‘stare decisis et non quieta movere’ which means ‘to stay by and not to disturb settled matters’ has birthed the doctrine of Judicial Precedents of which courts are now greatly enamoured and applied in the process of dispensing justice. In his book ‘Learning the Law,’ Glanville William wrote,
‘What the doctrine of precedent declares is that cases must be decided the same way when their facts are the same. Obviously, it does not require that all the facts should be the same. We know that in the flux of life all the facts of a case will never recur, but the legally material facts may recur and it is with these that the doctrine is concerned.’
Also, according to Coker J.S.C., precedent must be followed regardless of whether it was wrongly or rightly decided.

Fallacy like Nazareth - Many would ask, in astonishment, if any good thing could come out of Nazareth and I would reply, ‘yes!!!’ Tell me my argument is fallacious and I will proof to you that albeit it is fallacious, it is justifiable!

Akinade ADESOKAN (DOVE)
LL.B 5