Analogical Reasoning in the Common Law

Legal Theory, 2014

Proponents of strict rule-based theories of judicial reasoning in common-law systems have offered a number of criticisms of analogical alternatives. I explain these criticisms and show that at best they apply equally well to rule-based theories. Further, I show how the analogical theories explain a feature of judicial common-law reasoning—the practice of distinguishing cases—that rule-based theories ignore. Finally, I show that reason-based, analogical theories of common-law judicial reasoning, such as those offered by John Horty and Grant Lamond, offer especially strong rejoinders to the rule-theorist objections and persuasive accounts of distinguishing.

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This work tackles the most intriguing type of reasoning which one may employ within the field of law. In addition to the merits and drawbacks of legal analogy, it discusses the orthodox approaches to it, together with their critical analysis, also posing challenges that these conceptions have difficulty in managing. As an alternative, the book advances an account of legal analogical reasoning that correlates well with the division into rational and intuitive thinking that occurs in contemporary psychology. By doing so, many of the unique properties of legal analogy which have been traditionally associated with it and which have often been difficult to explain become readily understandable. Moreover, the very source of the almost mystical faith in power and infallibleness of such analogy is revealed here, while this faith - astonishing or not - not only escapes condemnation, but is shown to be warranted from a scientific point of view. Finally, the book also presents vast scope of application, premises, schematic structures and factors able to influence the force of legal analogy. https://www.cambridgescholars.com/analogical-reasoning-in-law Promo code: PROMO25. This code used when ordering gives 25% discount of the list price. For first 30 pages click the following link: https://www.cambridgescholars.com/resources/pdfs/978-1-5275-2232-9-sample.pdf

Argumentation, 2005

This paper deals with two issues in the field of reasoning by analogy in the law. The one issue is whether there exists such a thing as analogous rule application, or whether there is only the 'normal' application of a broadened rule. It is argued that if rules, as the entities made by a legislator, are distinguished from generalised solutions for cases, the idea of analogous application of rules makes sense. It is also shown how the socalled 'reason-based model of rule application', in contrast to the traditional modus ponens or subsumption model, makes it easy to give a logical account of analogous rule application. The other issue is how to argue logically about whether two cases are sufficiently similar to adopt the outcome of the one case for the other case. Section 3 provides a general logical model to establish this. The model is based on the comparison of the reasons for and against a particular solution in the two cases.

Successful accounts of analogy in law have two burdens to discharge. First, they must reflect the fact that the conclusion of an argument by analogy is a normative claim about how to decide a certain case (the target case). Second, they must not fail to accord relevance to the fact that the source case was authoritatively decided in a certain way. We argue in the first half of this paper (Sections 2 to 4) that the common view of the structure of analogical arguments in law cannot overcome these hurdles. In the second half (Sections 5 to 7) we develop an original account that aims to succeed where others failed.

Philosophy and Rhetoric, 2009

Argument from analogy is a common and formidable form of reasoning in law and in everyday conversation. Although there is substantial literature on the subject, according to a recent survey (Juthe 2005) there is little fundamental agreement on what form the argument should take, or on how it should be evaluated. Th e lack of conformity, no doubt, stems from the complexity and multiplicity of forms taken by arguments that fall under the umbrella of analogical reasoning in argumentation, dialectical studies, and law. Modeling arguments with argumentation schemes has proven useful in attempts to refine the analyst’s understanding of not only the logical structures that shape the backbone of the argument itself, but also the logical underpinning of strategies for evaluating it, strategies based on the semantic categories of genus and relevance. By clarifying the distinction between argument from example and argument from analogy, it is possible to advance a useful proposal for the treatment of argument from analogy in law. Keywords: analogy, reasoning, argumentation, definition, redefinition

Bond Law Review

Reasoning by analogy is fundamental to Common Law method and yet until recently has received relatively little analysis except as part of the Doctrine of Precedent. In this article we shall attempt an analysis of the nature of analogy in general, its relationship to logic and its place in reasoning with cases, statutes and codes. We shall then review some theoretical discussions of analogy and the link between reasoning by analogy and justificatory reasoning, ending with an analysis of justification in terms of principle, policy and considerations of fairness underlying the Doctrine of Precedent. The analysis of justification provides some insights into what are 'material' resemblances for the purposes of reasoning by analogy in the law.

Philosophy of Law as an Integral Part of Philosophy: Essays on the Jurisprudence of Gerald J Postema

This Chapter discusses Professor Postema's account of analogy in law. It takes issue with Professor Postema's contention that ‘strictly speaking, there is no such thing as argument from analogy, but only reasoning with analogy, or rather analogical reasoning'. Professor Postema holds the view that analogies appear in ordinary judicial discourse in a simplified form that does not reveal the underlying complexities of analogical reasoning. He contends that analogical reasoning must be uncovered and understood if we are to assess ordinary analogies properly. Professor Postema’s views are evaluated in section III after some preliminary remarks in sections I and II .

Harvard Law Review, 1996

Reasoning by analogy is one of the most frequently used techniques of legal argument. In this Article, Professor Brewer presents a detailed model of that reasoning process. With its focus on the special features of analogies that are offered as justificatory arguments, Professor Brewer's model provides clear criteria that lawyers, judges, students, and scholars can use critically to assess any given argument by analogy. Moreover, challenging a widely held view, Professor Brewer uses this model to argue that legal reasoning by analogy, like analogical argument in logic, mathematics, and the natural sciences, can have a great deal of rational force when properly executed. He explains that reasoning by analogy is a three-step rule-guided process that legal reasoners typically deploy when they are in doubt about the scope of a legal concept or rule and want to use an analysis of examples to help resolve that doubt. The three-step process consists of an inference (of the type known as "abduction") from chosen examples to a rule that could resolve the doubt; confirmation or disconfirmation, by a process of reflective adjustment, of the rule thus inferred; and application of the confirmed rule to the case that occasioned the doubt. Professor Brewer also highlights the interpretive criteria that readers of analogical arguments should use in trying to understand their exact structure and content. He maintains, for example, that analogical arguments offered by judges who endorse certain widely shared rule of law values should presumptively be interpreted as relying in a special way on deductively applicable rules within the broader three-step analogical reasoning process. His discussion locates issues regarding the proper interpretation of legal analogies within broader jurisprudential debates over the extent to which legal arguments can, do, and should satisfy rule of law values.

Lecture Notes in Computer Science, 2014

In common law countries, legal researchers have often used analogical reasoning to justify the outcomes of new cases. Such analogical reasoning has often been performed by arguing directly with cases. We observe that there is a second equally valid approach to conducting analogical reasoning: namely abducing rules and the deductively using the rules to justify the outcomes of new cases. We apply this research in the domain of Artificial Intelligence and Law.

Artificial Intelligence and Law, 2000

In this paper I investigate the similarities betweenthe dialectical procedure in the pragma-dialecticaltheory and dialectical procedures in AI and Law. I dothis by focusing on one specific type of reasoning inlaw: analogy argumentation. I will argue that analogyargumentation is not only a heuristic forfinding new premises, but also a part of thejustification of legal decisions. The relevantcriteria for the evaluation of analogy argumentationare not to be found at the logical level of inference,but at the procedural level of the discussion. I willproceed as follows. I start with an outline ofPrakken's theory of argumentation frameworks andprocedural models. Then, I will discuss Peczenik'sanalysis of analogy argumentation and try to combineit with the descriptive-normative research ofMacCormick and Summers. Finally, I propose asystematization of the criteria for the evaluation ofanalogy argumentation within the framework of apragma-dialectical notion of an argumentation scheme.