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May 21, 2009

A reader asks...

Max Radin famously wrote in the Harvard Law Review that the statutory canon “expressio unius est exclusio alterius” represents a fallacy of the illicit major. But how exactly does that canon commit this fallacy? Could someone please put in the categorical syllogistic form exactly how that canon commits the fallacy?

 

Here's an answer from my co-author, which I think nails it (though, of course, the counter-argument is also obvious):

Bottom line, the canon is “wrong” because one cannot think of everything to include in a list.  The canon assumes the author thinks of everything and chooses to not include those things excluded.  It simply does not reflect reality.

May 21, 2009 | Permalink

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That explanation makes sense. But does it pinpoint the "illicit major"? The fallacy of the illicit major occurs when the major term is undistributed in the major premise (of a categorical syllogism) but distributed in the conclusion (of a categorical syllogism). So we first need to put the argument in the form of a categorical syllogism ... but how? The canon seems ill-suited for a categorical syllogism. Which raises the question: where is the illicit major?

Posted by: KM | May 21, 2009 11:40:51 AM

Radin himself explains how this might be so: "The rule that the expression of one thing is the exclusion of another is in direct contradiction to the habits of speech of most persons. To say that all men are mortal does not mean that all women are not, or that all other animals are not. There is no such implication, either in usage or in logic, unless there is a very particular emphasis on the word men. It is neither customary nor convenient to indicate such emphasis in statutes, and without this indication, the first comment on the rule is that it is not true." "Statutory Interpretation," 43 Harv. L. Rev. 863, 873-74 (1930). He next identifies this with the illicit major fallacy, and cites to p.32 of the 1918 ed. of Jevons, Elementary Lessons in Logic. Google Books has the 1913 ed., where the passage appears to be on the same page.

In the context of statutory construction, I suppose the fallacy would look something like:

All Xs are subject to this statute.
No Y is an X.
Therefore, no Y is subject to this statute.

On its face, this is plainly fallacious, and the fallacy seems to fit Radin's illicit major. (Caveat: judging from a glance at the discussion in Jevons, I really don't know whether it is indeed a precise illustration of the fallacy.) But notice how this fails to illustrate a real world dispute about whether or not the statute covers Y, when X is the only explicitly enumerated subject of regulation. The inclusion of X, in other words, does not logically entail the exclusion of Y. Practically speaking, this tells me the canon isn't "wrong" simply because list makers are in fact fallible. It's this fallibility for which the canon is intended to compensate. (Or is this the obvious counter-argument?)

Posted by: Dean C. Rowan | May 22, 2009 12:21:41 PM

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