Abstract
Successful accounts of analogy in law have two burdens to discharge. First, they must reflect the fact that the conclusion of an argument by analogy is a normative claim about how to decide a certain case (the target case). Second, they must not fail to accord relevance to the fact that the source case was authoritatively decided in a certain way. We argue in the first half of this paper (Sections 2, 3, 4) that the common view of the structure of analogical arguments in law cannot overcome these hurdles. In the second half (Sections 5, 6, 7) we develop an original account that aims to succeed where others failed.
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Notes
See also Brewer (1996: 955, 967), with references to other authors who subscribe to this “widely endorsed form” (“analogical argument works this way: on the basis of one or more shared characteristics in a target and a source, a reasoner infers that the target possesses an inferred characteristic that the source is known to possess”). For more examples, see Landau (1981: 77-80), or White (2010: 572).
See also Golding (1988). Our way of graphically representing the argument differs slightly from Golding’s, but the contents are quoted verbatim.
The court also discussed whether a previous case—Carpenter v. New York etc. R.R. Co, 124 N.Y. 53—in which it had been held that “a railroad running sleeping coaches on its road was not liable for the loss of money taken from a passenger while in his berth, during the night, without some proof of negligence on its part”, could be taken to apply—also on the grounds of an analogy—to the case at hand (which of course would have led to the opposite conclusion that the steamboat company ought not to be held liable for the stolen money). The Adams court argued, however, that Carpenter “does not… control the case under consideration… [I]t is quite obvious that the [train] passenger has no right to expect, and in fact does not expect, the same degree of security from thieves while in an open berth in a car on a railroad as in a stateroom of a steamboat, securely locked and otherwise guarded from intrusion”.
This claim is perhaps too broad—Golding does not specify what he takes “good reason” to mean—but there is no need to dwell on the issue.
The truth of a premise like (6) will depend on several factors, including the absence of stronger competing analogies: see Golding (2001: 110).
When “y” is taken to refer to a general case, a further argument would then be subjoined classifying any particular case at hand as an instance of y, in order to justify the particular normative outcome in that particular case: see Bańkowski (1991: 204–205).
It might be objected that we can only make this point because we have already smuggled the adverb “probably” into our formulation of premise (4), and that that is something that Golding’s scheme does not contemplate. But this objection would be misguided. If we phrase premise (4) without the adverb, then what now follows—again deductively—is that Brown will be a successful salesman.
We have retained here the original numbering of premises and conclusions; and to avoid confusion we used “a” and “b”—rather than “x” and “y”—to stand for the source and the target cases.
Golding himself, however, would not welcome this revision: see note 15 below.
See the text accompanying note 10 above.
See e.g. Patterson (1942: 903–4), Halper (1968: 42), Murray (1982: 847–8), Klug (1982: 115–6), Hunter (2001: 1208, 1252), and Schauer (2009: 98–100); and also Quine and Ullian (1978: 90–95) and Govier (1989: 147–8). The doctrine of binding precedent is sometimes also said to involve reasoning “from case to case”; but here there is normally no implication—on the contrary—that the decision in the second case can dispense with the invocation of a rule. Edward Levi’s well-known description makes this quite clear: “The basic pattern of legal reasoning is reasoning by example. It is reasoning from case to case. It is a three-step process described by the doctrine of precedent in which a proposition descriptive of the first case is made into a rule of law and then applied to a next similar situation”: Levi (1949: 1–2, footnote omitted, emphasis added).
That is why Golding, who himself briefly considers the possibility of interpreting arguments by analogy as “involving two steps”, the first step consisting in “generalizing a broad rule from the prior case(s)”, and the second “in the deduction of the decision” for the instant case from that generalised rule, goes on to say (2001: 103) that “under this interpretation there is, strictly speaking, no argument by analogy at all”.
See note 4 above.
As Reidhav (2007: 102–105) points out, the risk of over-inclusiveness is a cost of generalisation.
Lawyers sometimes also use the term “distinguishing” in a different sense: they use it to refer to what a court does when, faced with a candidate (and prima facie plausible) formulation of the ratio of a previous decision—a formulation under which the instant case would count as being the “same” as the previous one—it offers and defends an alternative interpretation (or reinterpretation) of that ratio such that it no longer covers the instant case. Note, by contrast, that the sense of “distinguishing” we are concerned with in the text, which the sense in which courts are said to be duty-bound to either “follow” or “distinguish” precedent, actually presupposes that the instant case—the case to be distinguished—is and remains covered by the ratio of the precedent decision: on this point see Raz (2009: 185) and Lamond (2016, Sect. 2.2).
There may be further conditions constraining the scope of permissible distinguishing. For example, there seems to be no room for a court to argue that the ratio of a previous decision was over-inclusive, on the basis that that ratio fails to take into account certain features of the previous case, if the previous court did explicitly take those features into account—if it did assess and discuss their relevance—and declared them to be irrelevant. The scope of permissible distinguishing seems to be restricted to features of the previous case whose relevance the previous court overlooked or failed to consider.
On the qualification of over-inclusive rationes decidendi, see also Hodgson (1967: 122–123, 130–132).
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Acknowledgments
For helpful comments and discussion, we are grateful to Matthew H. Kramer, Euan MacDonald, Pedro Múrias, Fábio Perin Shecaira, and Katharina Stevens; to the Edinburgh Legal Theory Research Group; to audiences in Edinburgh, Oxford, Heidelberg, Lisbon, San Francisco, Washington (DC), London, Freiburg, Lund, and Kingston (Ontario); and to the anonymous reviewers for Argumentation.
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Duarte d’Almeida, L., Michelon, C. The Structure of Arguments by Analogy in Law. Argumentation 31, 359–393 (2017). https://doi.org/10.1007/s10503-016-9409-3
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DOI: https://doi.org/10.1007/s10503-016-9409-3