Common-Law Judicial Reasoning and Analogy

Abstract

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.

La ratio decidendi a través de ojos mexicanos

“…La Corte ha tenido una concepción muy ambigua de "inaplicable", lo que ocurre cuando "tiene que ver con un derecho humano distinto que el que está referido en la jurisprudencia". Pero en todos los demás escenarios, los tribunales inferiores "carecen de atribuciones para reinterpretar su contenido" (SCJN, Pleno, CT 299/2013, 2014.…”

Innovations and Analogies in the Legal Regulation of Withdrawal from a Limited Liability Company under Current Russian Law

“…The literature argues that the analogy method is the oldest (Vida 2013), most effective (Weinreb 2005), and creative (Mikryukov 2020) tool for overcoming normative gaps in practice, and a general tool for facilitating the understanding and argumentation of positions in everyday discussions (Juthe 2005). It is noted that the reasoning and argumentation by analogy act as a "friend" and "problem solver" not only in common-law jurisdictions but also in civil-law systems (Rigoni 2014), including the Russian jurisdiction. Moreover, a suggestion was made that similar reasoning can be incremental by its nature (i.e., not only a means of slow legal change) and a way to quickly correct large parts of the law (Schauer 2009).…”

Janus‐Faced Coherentism and the Forgotten Role of Formal Principles

“…If the principle of data priority entails an ordering between reasons of authority, what is the internal hierarchy of such legal reasons? In arguing for the revision of a rule, one must appeal not only to convictions and data priority but must also overcome the burden of argumentation that the formal principles of competence, equality, and 3 There is a rich debate on whether precedents produce constraining rules that work by subsumption (e.g., Alexander 1989;Schauer 2013) or whether they produce cases that are brought into comparison by analogical reasoning (e.g., Rigoni 2014;Stevens 2018). While coherentist accounts of precedent seem closer to the analogy side than to that of rules given their shared commitment to normative consistency between judgments, coherence is broader than analogy.…”