Abstract
This article describes the scope of application of an analogical argument in the province of precedential law. Inter alia, it revolves around such issues of the doctrine of precedent as: distinguishing, ascertaining and crystallizing the meaning of ratio decidendi or expanding its coverage onto the cases of first impression. Allowance has also been made for the presence of analogy in searching for the law-maker’s intention, the determining of the obsolescence of precedents and quoting precedents out-of-jurisdiction. The place analogical reasoning has in legal education has also been touched upon. On top of that, the article highlights the usage of analogy in precedential law which enables the replacement of the conception of rationes decidendi for the proposition of applying judicial precedents directly upon the relationship of similarity that obtains between cases decided previously and the instant case.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
Huhn (2008), p. 42.
Cross (1968), p. 196.
Cross 1968), p. 21.
Brewer (1995–1996), p. 934.
Broekman (1991) p. 220.
Sunstein (1996), p. 63.
Sunstein (1992–1993), p. 754.
Spellman (2004), p. 1190.
Bankowski et al. (1997a), p. 347.
Holyoak and Thagard (1996), p. 149.
Burton (2007), p. 26.
Murray and DeSanctis (2005), p. 10.
Dan Hunter, Teaching and Using Analogy in Law, Journal of the Association of Legal Writing Directors, vol. 2. http://ssrn.com/absract=1089669, p. 151.
Hunter, p. 153.
Lamond (2006), http://www.science.uva.nl/~seop/entries/legal-reas-prec/, p. 1.
Bergholtz and Peczenik (1997), p. 304.
Dworkin (1977), p. 113.
See Levi (1949), pp. 8–27.
As for the term of a case of first impression see: Alexander (1996), pp. 503–504 and Cross (1968), pp. 190–195; cf. also Summers (1997), pp. 366–368.
Cases of first impression can also be called unregulated cases or unregulated disputes. However, the meaning of the latter terms seem to be broader. For example, under an unregulated case/dispute, one may mean also the situations when the court decides a case sub judice upon a vague or undetermined statutory rule or the situations in which two statutory rules contradict each other and—due to the lack of any established precedence among them—the case at hand embraced by these rules has to be treated as unprovided for. Cf. Raz (1979), pp. 181–182 and 193–194.
Lamond (2006), p. 19.
As to the division into very close analogies (that strongly support an analogical conclusion) and more remote analogies (that weakly support an analogical conclusion) see for instance Lamond (2006), p. 19.
Weinreb (2005), p. 98.
Bankowski et al. (1997a), p. 325.
Bankowski et al. (1997a), p. 339.
Summers (1997), p. 387.
MacCormick (2005), p. 160.
Cross (1968), p. 21.
Lamond (2006), p. 19.
Raz (1979), p. 202.
Raz (1979), p. 202.
Cross (1968), p. 176.
Bankowski et al. (1997a), p. 341.
Brewer (1995–1996), p. 936, see also pp. 1006–1012.
Alexander and Sherwin (2008), p. 123.
Burton (2007), p. 29.
Murray and DeSanctis (2005), pp. 72–73, see also pp. 9–10.
Cross (1968), pp. 21–22.
On the conflicts between precedents in the United Kingdom and United States see respectively Bankowski et al. (1997a), p. 345, Cross (1968), pp. 125–127, 129–136 and Summers (1997), p. 400.
As to the question of whether the conflict of precedents can be labeled as unregulated case/dispute cf. also Raz (1979), p. 193.
See Summers (1997), p. 400.
Aarnio (1991), p. 140.
See Goodhart (1930), pp. 161–183; see also Cross (1968), pp. 67–76, Marshall (1997), pp. 511–512, MacCormick (2005), pp. 158–159, see also Lamond (2006), pp. 10–11, MacCormick (1978), p. 84.
Noteworthy, Dr. Goodhart provides us also with some guidance as to how we should differentiate facts that are to be regarded as material (relevant) from those that are to be considered as irrelevant. Thus, according to him, for instant, the facts of person, time, place, kind, and amount ought to be presumed as being immaterial (see Goodhart 1930, pp. 169–170, 174, 182).
Of the view that the argumentation which concerns issues of the applicability of precedent in the United Kingdom “is likely to involve close factual analysis, especially to discover how strong an analogy there is between precedent and instant case” are Bankowski et al. (1997a), pp. 338–339.
In turn, against the background of the United States, it is pointed out that “[t]he judicial, scholarly and juristic practice of arguing for against the applicability of precedents regularly takes the form of close analysis of material facts. Judges carefully examine the material facts to ascertain degrees of relevant similarity. Scholars use similarity or lack thereof as support for argument. Advocates stress factual similarity or dissimilarity as a major structural component of the position they take in their presentation to the court.” See Summers (1997) p. 387.
Cf. Bankowski et al. (1997a), pp. 338–339, 345–346.
See Raz (1979), pp. 206–207 and Cross (1968), p 73, see also pp. 182–186.
Also Dworkin (1977), while canvassing on “the gravitational force of a precedent”, seems to express the view that via the principle of treating similar cases alike the force of precedent escapes the language of its opinion. See Dworkin (1977), p. 113.
See Bankowski et al. (1997b), p. 497.
As is pointed out, in judicial opinion, a court may account for the decision it reached “without making explicit any governing proposition of law, but indicating clearly enough the precedent or precedents that govern or provide guidance by analogy.“See Marshall (1997), p. 513.
Thus Sunstein points out that: “Common law judges decide particular controversies by exploring how previous cases have been resolved. They rely on precedents. They look for relevant similarities and relevant difference” (see Sunstein 1996, p. 77). Perelman states that if the pending case is sufficiently similar [to precedential one], we apply to it ratio decidendi by argumentum a simili, but if this seems unjustified, one rebuts the rule which forms the basis of prior decision via the argument a contrario (see Perelman (1984), p. 39). Bańkowski, MacCormick and Marshall, in turn, define a precedent as “simply any prior decision of any court that bears a legally significant analogy to the case now before a court” (see Bankowski et al. 1997a, p. 323).
See Alexander (1996), p. 509.
See Burton, p. 29.
See Murray and DeSanctis (2005), p. 9, see also pp. 72–73 and 76.
See Schauer (2009), p. 45.
The most astonishing seems, however, the stance of Levi who claims that: “The determination of similarity and difference is function of each judge. Where case law is concerned, and there is no statute, he is not bound by the statement of the rule of law made by the prior judge in the controlling case. The statement is mere dictum, and this means that the judge in the present case may find irrelevant the existence or absence of facts which prior judges important.” See Levi (1949), p. 2.
In general, it is pointed out that an analogical model of precedents is more common for the United States than for the United Kingdom and Commonwealth countries. The suggested reasons for such a difference are first the occurrence of the Realist movement in the USA [a movement which underscores the importance of the factual background of judicial decisions] and, secondly, the stricter approach to formally binding precedent adopted in the latter two which results there in greater commitment to rule-stating model of precedent in legal practice and theory. See Bankowski et al. (1997b), pp. 498–499.
See Bergholtz and Peczenik (1997), pp. 304–309.
“The [Swedish] court practice seems rather to be based on the model of particular analogy, where each case is treated as an illuminating example of a reasonable decision, given all its own facts, and hence a useful guide for decision in similar cases” (see Bergholtz and Peczenik 1997, p. 305).
Bergholtz and Pecznik (1997), pp. 298–300, 304, Eng (1997), pp. 198–201.
Raz (1979), p. 202.
He adds also that: “Analogical argument is a form of justification of new rules laid down by the courts in the exercise of their law-making discretion. As such it succeeds when it helps to establish that the rule adopted by the court is the best it can adopt”.
Cross (1968), p. 176.
Cf. Murray and DeSanctis (2005), p. 70.
Such a possibility seems to be suggested by Murray and DeSanctis who state that: “Later cases can replace the authority you are looking at by restating the same rule or advancing it further through modification and adaptation, not necessarily by sating a new rule on the same legal topic which would overrule the earlier authority.” See Murray and DeSanctis (2005), p. 74.
On the question of obsolete precedents see Cross (1968), pp. 144–145.
On the perplexity respecting the invoking of precedents out-of-jurisdiction in the USA see: Murray and DeSanctis (2005), pp. 79–80, Schauer (2009), pp. 79–80, Posner (2008), pp. 348–353; in Australia see: Michael Kirby, Precedent—Report On Australia, speech made at the Conference of International Academy of Comparative Law Conference in Utrecht (the Netherlands) on 17 July 2006, http://www.hcourt.gov.au/assets/publications/speeches/former-justices/kirbyj/kirbyj_17jul06.pdf, pp. 12–13.
The possibility of citing precedents from other jurisdictions also occurs in the UK legal system, see Bankowski and MacCormick (1991), p. 378.
Weinreb (2005), p. 12.
Weinreb (2005), p. 142.
Hunter, p. 151.
Posner (1990), p. 100.
For such usage see Aarnio (1991), p. 140.
The phrase ‘statutory analogy’ as a name for an analogical argument that is employed in the domain of statutory law was used, for instance, for the sake of the comparative considerations made by see Summers and Taruffo (1991, p. 471).
See Perelman (1984), p. 39, 90.
Cf. Perelman (1984), p. 95 and Lechniak (2006), p. 100.
The phrase: “reasoning by example” is deliberately used interchangeably with the expression: “reasoning by analogy” by Levi (1949, p. 1, 5), (1965, p. 399). Similarly, ‘analogical reasoning’ (‘analogical argument’) and ‘exemplary reasoning’ (‘exemplary argument’) appear to be treated as synonyms by Brewer, who suggests additionally significant heuristic value stemming from using them more or less interchangeably (see Brewer 1995–1996, pp. 927–928, 934). Also Jerzy Stelmach points out that in legal discourse, arguments: a simili and ab exemplo are very often used interchangeably and understood as synonyms (see Stelmach 2003, p. 76).
References
Aarnio, Aulis. 1991. Statutory interpretation in Finland. In Interpreting statutes. A comparative study, ed. D. Neil MacCormick, and S.Robert Summers, 140. Aldershot: Dartmouth Publishing Company Limited.
Alexander, Larry. 1996. Precedent. In A companion to philosophy of law and legal theory, ed. Dennis Patterson, 503–504. Malden: Blackwell.
Alexander, Larry, and Emily Sherwin. 2008. Demystifying legal reasoning, 83–87. Cambridge: Cambridge University Press.
Bankowski, Zenon, and D. Neil MacCormick. 1991. Statutory Interpretation in the United Kingdom. In Interpreting statutes. A comparative study, ed. D. Neil MacCormick, and S.Robert Summers, 378. Aldershot: Dartmouth Publishing Company Limited.
Bankowski, Zenon, D. Neil MacCormick, and Geoffrey Marshall. 1997a. Precedent in the United Kingdom. In Interpreting precedents: A comparative study, ed. Neil MacCormick, and S.Robert Summers, 347. Aldershot: Ashgate/Dartmouth.
Bankowski, Zenon, Neil MacCormick, Lech Morawski, and Alfonso Ruiz Miguel. 1997b. Rationales for precedent. In Interpreting precedents: A comparative study, ed. Neil MacCormick, and S.Robert Summers, 497. Aldershot: Ashgate/Dartmouth.
Bergholtz, Gunnar, and Aleksander Peczenik. 1997. Precedent in Sweden. In Interpreting precedents: A comparative study, ed. Neil MacCormick, and Robert S. Summers, 304. Aldershot: Ashgate/Dartmouth.
Broekman, Jan M. 1991. Analogy in the law. In Legal knowledge and analogy. Fragments of legal epistemology, hermeneutics and linguistics, ed. Patrick Nerhot, 220. Dordrecht: Kluwer Academic Publishers.
Burton, Steven J. 2007. An introduction to law and legal reasoning, 3rd ed, 26. Wolters Kluwer: Austin.
Cohen, Morris L., and Kent C. Olson. 2000. Legal research in a nutshell, 7th ed, 4. St. Paul: West Group.
Cross, Rupert. 1968. Precedent in English law, 196. Oxford: The Clarendon Press.
Dworkin, Ronald. 1977. Taking rights seriously, 113. Cambridge: Harvard University Press.
Eng, Svein. 1997. Precedent in Norway. In Interpreting precedents: A comparative study, ed. Neil MacCormick, and S.Robert Summers, 207. Aldershot: Ashgate/Dartmouth.
Golding, Martin P. 2001. Legal reasoning, 109. Peterborough: Broadview press.
Goodhart, L. Arthur. 1930. Determining the ratio decidendi of a case. Yale Law Journal 40(2): 161–183.
Grant, Lamond. 2006. Precedent and Analogy in Legal Reasoning. The Stanford Encyclopedia of Philosophy, first published 2006. http://www.science.uva.nl/~seop/entries/legal-reas-prec/, p. 1.
Holyoak, Keith J., and Paul Thagard. 1996. Mental leaps: Analogy in creative thought, 149. Cambridge: The MIT Press.
Huhn, Wilson Ray. 2008. The five types of legal argument, 2nd ed, 42. Durham: Carolina Academic Press.
Lechniak, Marek. 2006. Elementy logiki dla prawników, 100. Wydawnictwo KUL: Lublin.
Levi, Edward H. 1949. An introduction to legal reasoning, 8–27. Chicago: The University of Chicago Press.
Levi, Edward H. 1965. The nature of judicial reasoning. The University of Chicago Law Review 32(3): 400.
MacCormick, Neil. 1978. Legal reasoning and legal theory, 84. Oxford: Clarendon Press.
MacCormick, D. Neil. 2005. Rhetoric and the rule of law: A theory of legal reasoning, 160. Oxford: Oxford University Press.
Marshal, Geoffrey. 1997. What is binding in a precedent. In Interpreting precedents: A comparative study, ed. Neil MacCormick, and Robert S. Summers, 504–506. Aldershot: Ashgate/Dartmouth.
Murray, Michael D., and Christy Hallam DeSanctis. 2005. Legal research and writing, 10. Eagan: Foundation Press.
Nowacki, Józef. 1966. Analogia legis, 62–67. Państwowe Wydawnictwo Naukowe: Warszawa.
Perelman, Chaim. 1984. Logika prawnicza: Nowa retoryka (trans: Pajor, Tomasz), 39–40. Warszawa: Państwowe Wydawnictwo Naukowe.
Posner, Richard A. 1990. The problems of jurisprudence, 100. Cambridge: Harvard University Press.
Posner, Richard A. 2008. How judges think, 348–353. Massachusetts: Harvard University Press.
Raz, Joseph. 1979. The authority of law: Essays on law and morality, 181–182. Oxford: Oxford University Press.
Schauer, Frederick. 2009. Thinking like a lawyer: A new introduction to legal reasoning, 45. Cambridge: Harvard University Press.
Scott, Brewer. 1995–1996. Exemplary reasoning: Semantics, pragmatics, and the rational force of legal argument by analogy. Harvard Law Review 109:934.
Spellman, Barbara A. 2004. Reflections of a recovering lawyer: How becoming a cognitive psychologist—and (in Particular) studying analogical and casual reasoning—Changed my views about the field of psychology and law. Chicago Kent Law Review 79: 1190.
Stelmach, Jerzy. 2003. Kodeks argumentacyjny dla prawników, 76. Kraków: Zakamycze.
Summers, Robert. 1997. Precedent in the United States (New York State). In Interpreting precedents: A comparative study, ed. Neil MacCormick, and Robert S. Summers, 366–368. Aldershot: Ashgate/Dartmouth.
Summers, S. Robert, and Michele Taruffo. 1991. Interpretation and Comparative Analysis. In Interpreting statutes. A comparative study, ed. D. Neil MacCormick, and S.Robert Summers, 471. Aldershot: Dartmouth Publishing Company Limited.
Sunstein, Cass R. 1992–1993. Commentary on analogical reasoning. Harvard law review 106:754.
Sunstein, Cass R. 1996. Legal reasoning and political conflict, 63. New York: Oxford University Press.
Weinreb, Lloyd L. 2005. Legal reason: The use of analogy in legal argument, 98. Cambridge: Cambridge University Press.
Wells, John Cleland. 1878. A treatise on the doctrines of res adjudicata and stare decisis, 530–532. Des Moines: Mills & Company Law Publishers.
Author information
Authors and Affiliations
Corresponding author
Additional information
This article is connected with the research project the Author carried out in the United Kingdom as a guest researcher at Aberystwyth University as a part of the Polish governmental programme: ‘Mobilność Plus’ [Mobility Plus].
