1. Quoted in SCALIA & GARNER at xxiii. 3. Quoted in GOLDSTEIN & LIEBERMAN at 24. 4. COULTER at 28.
2. ANN COULTER, GODLESS: THE CHURCH OF LIBERALISM
5. COULTER at 31. 6. COULTER at 28.
7. COULTER at 26.
This is ad terrorem, an appeal to fear.
Missing the Point!
Again Coulter opines against arguments that the death penalty is
“Any system of justice that allows compassion, discretion, and
leniency will lead to wildly divergent sentences for seemingly
similar crimes. For consistency, you want something like the
Taliban’s Sharia law. Anyone found guilty of homosexuality
under Sharia law has a wall dropped on him. End of story.”
This is Ignoratio elenchi, a fallacy of irrelevance. In popular speech
we might say these arguments are “irrelevant” or “miss the point.”
This last example also shows the value of having logically sound
As stated, logically fallacious arguments can often have rhetorical
force but they do not stand on their own terms. In the above example, the logical fallacy is so pronounced it is also an absurd rhetorical argument. The very argument points out why we accept divergent sentences: we want compassion, discretion, and leniency; we
don’t want the Taliban’s Sharia law. End of story.
Often arguments are fallacious in more than one way. The above
argument is also a sweeping generalization, one of the fallacies of
accident. Breaking the argument down leads to the,
Major Premise = Disparity in capital cases is bad,
Minor Premise = Judicial discretion (including compassion
and leniency) in capital sentencing is the cause of disparity,
Ergo = Discretion (including compassion and leniency) is bad.
First, the major premise is not a given. Most of those who believe in
capital punishment still say that not all murders are the same—some
deserve death and some don’t.
Second, the minor premise that judicial discretion causes disparity is
a fallacy of false cause called post hoc ergo propter hoc. The argument
does not establish that judicial discretion, by itself, causes disparity in
sentencing. In modern scientific terminology it is co-relational not
causational, i.e., discretion and disparity may be related but does not
mean that judicial discretion causes disparity.
The post hoc fallacy formula is that,
A happened, then B happened
Therefore, A caused B
Or, Avoiding A will prevent B.
The problem, of course, is that nothing establishes that A caused B
other than the two events happened consecutively.
We can use an old example. Let’s say that towns with many bars also
have many churches. One can conclude that drinking leads people to
pray, or, that praying leads to drink! So, there is some kind of
correlation between bars and churches. But nothing but a superficial look
establishes that one caused the other. The truth is that more people
in a town create a demand for both bars and churches.
Third, in Coulter’s argument the conclusion that discretion is bad
does not follow, i.e., it is a non-sequitur. Discretion is not an objec-
tive evil. Indeed, the sounder argument is that giving judges guide-
lines in exercising discretion is the best way to eliminate disparity.
Anyone who went to law school will remember the “hypo.” Though
they never told us, hypo is short for hypothetical syllogism.
The Hypothetical Syllogism looks like a true syllogism but begins
with a conditional Major Premise. When the argument beings with
a conditional word like if, unless, granted or supporting, it does not
establish the Major Premise of a true syllogism. In logical terminology, the argument lacks substance because it is conditional and not
27 JANUARY 2014 ARIZONA ATTORNEY www.azbar.org/AZAttorney
The Hypothetical Syllogism
Imposing Sharia Law
8. Back to Professor Kingsfield and the casebook method of legal education.
Nearly your entire legal education centered on the logical fallacy of the
Hypothetical Syllogism. There was never supposed to be any right answers in
law school! Francis Bacon could well have said of a typical law professor,
“They make imaginary law for imaginary commonwealths; and their discourses
are as the stars, which give little light because they are so high.” (1605).
Bacon quoted in ALDISERT at 209.
The so-called “Socratic Method” in law school usually consists of one “hypo” after
The name comes from Socrates who stated that,
“Humans do not know anything worthwhile.”
If you rely solely on the hypothetical syllogism, it proves Socrates’ point.
Socrates was Plato’s teacher, and Plato was Aristotle’s
The Athenians executed
Socrates in 399 B.C.
but he did end up a
character in BILL AND
Plato and Aristotle in the middle with Socrates on the step.