Journal Article

Analogical Reasoning in the Common Law

Grant Lamond

in Oxford Journal of Legal Studies

Volume 34, issue 3, pages 567-588
Published in print September 2014 | ISSN: 0143-6503
Published online June 2014 | e-ISSN: 1464-3820 | DOI: http://dx.doi.org/10.1093/ojls/gqu014
Analogical Reasoning in the Common Law

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Analogical reasoning is a pervasive feature of the common law, yet its structure and rational force is much disputed by legal theorists, some of whom are sceptical that it has any rational force at all. This article argues that part of the explanation for these disagreements lies in there being not one form of analogical reasoning in the common law, but three: classificatory analogies, close analogies and distant analogies. These three differ in their functions and rationale. Classificatory analogies involve the use of decided cases to help characterize novel fact situations, and are justified by the rule of law ideal of minimizing the dependence of judicial decisions on the individual views of decision-makers. Close analogies are used to help resolve unsettled issues by reliance on decisions from other branches of the same legal doctrine. They complement the doctrine of precedent, and rest on similar considerations. Distant analogies are also used to help resolve unsettled issues, but by reference to decisions from other legal doctrines. They are the most susceptible to sceptical critique: although they can serve to maintain coherence in the law, they deserve a more modest role in legal reasoning than they are often given.

Keywords: analogical reasoning; common law; legal reasoning; precedent; legal philosophy

Journal Article.  11228 words. 

Subjects: Law ; Jurisprudence and Philosophy of Law ; Law and Society

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