Reasoning by Analogy

Kent Greenawalt

in Statutory and Common Law Interpretation

Published in print November 2012 | ISBN: 9780199756148
Published online January 2013 | e-ISBN: 9780199979523 | DOI:
Reasoning by Analogy

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Traditionally regarded as a central technique of common law argumentation and decision making, reasoning by analogy has been claimed by some to be reducible or definitely subsidiary to other forms of reasoning. Insofar as such reasoning does make a difference, a troubling question is whether it enjoys any reliability or genuine merit. This chapter examines judicial use of reasoning by example and considers when reliance on that is justified. It tackles theoretical issues about analogical reasoning that are pertinent to the practical concerns. Although the absence of a single authoritative text in common law adjudication gives analogy particular importance, it also plays a part in statutory and constitutional interpretation. The chapter concludes that reasoning by analogy does have independent importance, that it rarely stands alone in full legal opinions; that its power in determining results and legal rules varies greatly; and that gauging its distinctive force in particular instances is often impossible, both because judicial opinions are unreliable indicators in this respect, and because decision makers themselves will often be unsure of the exact influence of examples. These uncertainties do not undercut justified reliance on a comparison of examples.

Keywords: common law argumentation; decision making; analogical reasoning; judicial use

Chapter.  14136 words. 

Subjects: Jurisprudence and Philosophy of Law

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