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The Syllogism: a Beauty and a Beast

10/12/2024

“Socrates is a man. All men are mortal. Therefore, Socrates is mortal.”
We all know that classic syllogism. The burghers of Athens proved its veracity by successfully condemning Socrates to death for political reasons.

There is a modern version taken from an enforcement procedure between a German claimant and a Russian defendant:
The arbitrators A, B and C are Danish, Ukrainian, and English, respectively. Denmark, Ukraine, and the UK are against Russia. Therefore, the arbitrators from these countries are presumed biased – and the award is not enforceable.¹

Now, where’s the catch? Obviously, it is easy to dismiss the Russian decision as what you would expect from a Russian court these unfortunate days.

Think again. Methodologically, the Russian court did what is not just popular but even de rigueur in many parts these days, not just among lawyers but within society as a whole. They defined a class, identified individuals as members of that class, and drew conclusions on these individuals based on characteristics identified with that class. Of course, what they did was an abuse of the method for political reasons, but the method of slicing and dicing the world into neat categories that are easily manageable is the daily job of us lawyers.

It is also the primary way to apply the law. The rule of law rests on syllogisms.

The question is: how much? There can be too much of a good thing, even too much of a necessary thing. Take the civil law obsession with types of contracts. When civil law judges see a contract, often the first thing they do is identify which type of contract it belongs to and then apply the statutory rules relating to that contract – a sales contract, a loan, an employment agreement, or whatever category the contract may fall into after proper slicing and dicing.

In an earlier life, I argued that the types of contracts found in civil law codifications are essentially a distraction.² There are no gaps between sales, works, and services. There is a continuum, and any attempt at slicing and dicing necessarily risks doing injustice to what the parties had agreed on. The special part of contract law codes is useful for run-of-the-mill cases but needs to leave room for any atypical agreements by the parties. Party autonomy trumps categorisation. A contract is a contract is a contract (to misquote Gertrude Stein). I like the UNIDROIT Principles of International Commercial Contracts mainly because they contain no chapter on specific types of contracts. They remain decidedly unpopular with practitioners, but likely for other reasons.

Procedural law is particularly prone to the good, the bad, and the ugly of categorisation. In some countries, judges like to dismiss cases based on some formalistic categorisation of the prayers and the arguments. Excessive formalism is often the effect of a categorisation that does not take into account the specificity of the individual case.

Arbitration is more flexible and more apt at considering all the circumstances of a case. The advantage is likely more justice in the individual case. The disadvantage is that the task of the arbitrators is more complex and thus the outcome less predictable. Sensibly and predictably applying general principles rather than strict rules of a specific category is a challenge for any arbitrator.

This is where the selection of the arbitrator comes in. Quality of the arbitrator is crucial. In order for arbitration to continue to prosper, we need to make sure that the arbitration community produces enough quality arbitrators. For that, we need to foster diversity to broaden the available pool – diversity not as an end in itself, but as a means to improve quality by shattering glass ceilings and tearing down walls between artificially defined groups of people.

Syllogisms are intrinsically linked to the practice of law. Logic cannot be an end in itself either. To take the famous quote from Oliver Wendell Holmes slightly out of context: “The life of the law has not been logic: it has been experience.”³ Yes, arbitrators need syllogisms, but experience, common sense, and practical wisdom are also required.

Of course, politics must be excluded, as Socrates might have added.

Felix Dasser

1. Susannah Moody, “Russian Supreme Court overturns enforcement based on arbitrator nationality”, Global Arbitration Review 02 August 2024 ↩︎
2. Felix Dasser, Vertragstypenrecht im Wandel. Konsequenzen mangelnder Abgrenzbarkeit der Typen, Schulthess/Nomos, 2000. ↩︎
3. Oliver Wendell Holmes, The Common Law, 1881. ↩︎

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