Legal Reason: The Use of Analogy in Legal Argument

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Plato was a man and Plato was mortal. Julius Caeser was a man and Julius Caeser was mortal. George Washington was a man and George Washington was mortal. John Marshall was a man and John Marshall was mortal. Ronald Reagan is a man and Ronald Reagan is mortal. Therefore, all men are mortal. To use inductive reasoning successfully, you need to ensure that your supporting facts represent an appropriate sample size and are representative.

With inductive reasoning, you can never be certain that your conclusion is true, but through your supporting facts, you should be able to establish that your conclusion is highly probable. Another form of inductive reasoning common in law is analogy , in which you make one-to-one comparisons and draw similarities between two different things. Rather than reasoning from the general to the specific deductive reasoning or from the specific to the general generalizations , analogy requires reasoning from the specific to the specific.

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Analogy is a common part of everyday life and legal practice. For instance, I am a lawyer and I find Lawyerist to be useful to my practice, so I assume other lawyers will find Lawyerist useful to their practice, as well. The Judge offers the following formula for an analogy:. A has characteristic Y.

B has characteristic Y. A also has characteristic Z. To use analogy in law, the Judge suggests that you 1 establish similarities between two cases; 2 announce the rule of law embedded in the first case; and 3 apply the rule of law to the second case. Successful analogy depends on the relevancy of the comparison. It is therefore important to detail the similarities between the cases and to acknowledge their differences.

You must establish that the relevant similarities outweigh the relevant differences and therefore the outcomes should be the same. Thanks for such a useful article.

Reasoning by analogy

While considering these issues, it dawned on me that the IRAC method of answering a legal issue is a syllogism. The rule is the major premise. The application of the rule to our facts is the minor premise. And, the conclusion is the,… wait for it …conclusion.

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Thanks again. You must be logged in to post a comment. Log in to Lawyerist. Register here. It's free! Join Lawyerist Insider Back to login. If it still represents an absence of regulation, its extension must consider that both principles and rules are in the same way providing legal consequences, even though principles, bearing expansive antecedents which cover larger amounts of reality, have considerably narrowed the space for unregulated cases.

Without some such purpose, the meta-factor deciding which factor prevails is indefinable and, for this reason, the choice among factors lacks justification and becomes a strictly arbitrary option. Since principles provide the ends adopted by a legal order both on a larger scale and more perceptibly, and since these ends are usually introduced in analogy in order to solve the meta-factor problem, the goal-oriented character of analogy has found its main source of operability in these kind of norms.

This duplicity has to be treated carefully: whenever principles govern a case, they immediately put analogy aside and thus remove the possibility of them constituting the criteria with regard to what is similar to what. Dordrecht: Kluwer. On the Nature of Legal Principles. Martin Borowski. Stuttgart: Franz Steiner Verlag. Oxford: Oxford University Press. New York: ACM. Harvard Law Review 5. Courts, Interpretation, The Rule of Law.

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The Hague: Eleven International Publishing. On the Philosophy of Precedent. Carlos Bernal Pulido.

John P. Burlington: Morgan Kaufmann Publishers. Legal Reasoning: the Methods of Balancing. Jan Sieckmann. Argumentation 19 4.

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Lagunas en el Derecho. Madrid: Marcial Pons. Barcelona: Ariel. Artificial Intelligence and Law 4 Giorgio PINO, Diritti e Intepretazione. Bologna: Il Mulino. Legal Knowledge and Information Systems.

Legal Reason Use Analogy by Lloyd Weinreb - AbeBooks

Joost Breuker. Amsterdam: IOS Press. British Journal of Philosophy of Science 53 4. Legal Knowledge Based Systems. The Relations with Legal Theory. Henry Prakken. Lelystad: Koninklijke Vermande. The Use of Analogy in Legal Argument. New York: Cambridge University Press. The second one will be explained later. Peczenik Two, P has the further feature, R-- they were authored by Shakespeare. Therefore, probably, Q also has the further feature R-- it was authored by Shakespeare, too. We reason like that in everyday life, too. Two, they both had the further feature of being reliable. Therefore, probably, a Morris Minor with similar mileage will be reliable, too.

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And that little domestic example should make clear that not every similarity will be relevant. It would be odd to think that colour of my last two cars was any reason to think a car of the same colour would be reliable.

Notice, too, that because we're in non-deductive territory, we're interested in the strength of the argument by analogy. In the next video, we'll see how this applies in the law. We use cookies to give you a better experience. Search Search. Unable to play video. Please enable JavaScript or consider upgrading your browser. View transcript.