The Selection of a Defective Major Premise

Abstract

In a common law system of reasoning, there is no definitive method to identify the correct legal rule, or major premise, from which there proceeds the reasoning to the result. At a more fundamental level, there are also no a priori rules to determine the correct level of generality at which to pitch the scope of that premise. Both remain selective processes which may lead to unsatisfactory outcomes. This is illustrated by our consideration of three recent decisions of courts of final appeal.