Arguers sometimes cite a decision made in an earlier situation as a reason for making the equivalent decision in a later situation. I argue that there are two kinds of “case-to-case arguments”. First, there are arguments by precedent, which cite the mere existence of the past decision as a reason to decide in the same way again now, independent of the past decision’s merits. Second, there are case-to-case arguments from parralel reasoning which presuppose that the past decision was justified and are used to show that an equivalent present decision would also be justified. Both arguments are a type of argument by analogy. They differ in their structures and conditions of cogency, even though they often look the same in presentation. Their similar appearance poses a risk of miss-evaluation and fallacious use. Therefore a clearly theorized distinction is important.
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This type of argument is named after binding precedents in common-law systems because I believe that arguments using binding precedent in the common law are one example of the type of argument I am describing here. For an explanation of the function and role of binding precedent and the difference between binding and non-binding (persuasive) precedent in the common law, please see footnote 6.
An example of reasoning along the lines of this kind of argument in everyday situations might be helpful here. Here is one that is especially embarrassing for the author: In one of my classes, I had established cold-calling as a way to entice students to actually do the assigned reading. Every student would, once in the term, be asked something about the reading and they would receive 5% of their grade if they could show that they had read. The students did not know when they would be called, so they had a reason to do all the readings, at least until they had done their cold-call. My mistake was made on the second cold-call: the question about the reading appeared on the slide, a student raised their hand, and without thinking I asked him to speak. This was undoubtedly the wrong decision: cold-calling works only if it is not the students, but me who decides who has to answer the question. And the other students immediately realized, and pointed out what this meant: even though the decision had been wrong, every one of them would be in a relevantly similar situation if they raised their hands at later cold-calls. I would have been in a horrible pickle had the student not immediately offered to forgo the so-earned 5% and to be cold-called again at a later time.
I am here using a simple concept of relevance according to which the truth of a premise is relevant for a conclusion if accepting the premise as true changes the certainty with which the conclusion or the belief can be accepted as true. Authors like Hitchcock (1992) and Sperber and Wilson (1986) have offered more sophisticated definitions of relevance in argument and reasoning. But the definition I have chosen to employ here has been adopted widely by argumentation theorists [see, e.g. the by-now classic textbook Johnson and Blair (1977), Logical Self-Defense, p. 12ff.]. It may also lie at the core of the more sophisticated definitions provided by these authors.
See, e.g. Waldron (2012). He wants to defend the doctrine of precedent on Rule of Law grounds. He lists the principle to treat like cases alike among a number of reasons supporting the adoption of stare decisis and binding precedent that are regularly discussed in addition to rule-of-law-reasons.
This is true for so-called binding precedent. Binding precedent is a precedent in a common-law system which was decided in the same jurisdiction and within the same doctrine as the present case by a court higher or as high as the present court, and which is similar with respect to every legally relevant aspect (the two cases are the same from the legal point of view). In common-law jurisdictions, a binding precedent has to be followed, whether or not the present court agrees with the decision in the precedent case and even whether or not the decision in the precedent case was actually correct on the merits. A judge may only decide not to follow binding precedent if she can either distinguish (by claiming that there is a relevant difference between the cases); or if her court has the power to overrule and she finds the conditions for overruling have been met. However, these conditions are most often very strict: the precedent case’s decision has to be wrong in such a way that following the precedent would result in extremely unjust outcomes. Otherwise, even a court with the power to overrule has to follow binding precedent. (See, e.g. Schauer 2009, p. 37f.; Lamond 2016) There is also persuasive precedent. This kind of precedent deals with a case relevantly similar to the case at hand, but because it does not fulfill one of the conditions I have listed, it does provide a legally authoritative reason for the court—it does not need to be followed. In persuasive precedent, the merit of the decision does play a role: If the court is convinced by the reasoning in the persuasive precedent, it may decide to make the equivalent decision to it in its present case. Because its decision creates a precedent itself, it thereby extends the reach of the precedent beyond the reach it had before. (On analogy and extending the law see e.g. Canale and Tuzet 2014). For a court with the power to overrule their own precedent (like for example the US supreme court), it is not easy to say whether their own precedents are truly binding—this seems to depend on the standard for overruling that the court applies (for a discussion of this problem with respect to the US supreme court, see e.g. Kozel 2013). Unless otherwise stated, I will be talking about binding precedent where-ever I talk about legal precedent throughout the paper.
That the two readings of the principles are different is not always clearly recognized by authors who discuss the principle to treat like cases alike. For example: I think that Trudy Govier’s reading of the principle when she introduces it in her textbook A Practical Study of Argument is the weak one, because she refers to the correctness of the source-decision (Govier 2014, p. 320). But then, later, she talks about treating like cases alike in the law, and seems to switch to a stronger reading of the principle. She cites the reason that the law should treat everyone equally as a demand of formal justice without recognizing that there is a difference between the two principles (Govier 2014, p. 321).
The weak version of the principle is what Levvis calls the “principle of relevant similarity” (Levvis 1991).
I avoid the possibly exhausting discussion of whether this—and the premises (assumptions) stating a second-order reason that I introduce in the next section—play the role of missing premises or background assumptions.
Perelman seems to be aware that his and Olbrecht-Tyteca’s principle of justice does not always hold. See Perelman (1980, pp. 89–90). Reidhav discusses the principle of justice, and its impact, in detail and points out that it alone, without further premises, does not have any practical implications (2007, chapter 3).
A reader might raise the objection that the demand for relevant similarities takes care of this problem, claiming that only those similarities will be relevant that relate to the justification of the source decision. Then the two argument types would reduce to each other. An answer to this objection can be found in Sect. 3.2.
Here, one of my reviewers made two interesting suggestions. First, they pointed out that it is possible that case-based arguments from parallel reasoning might also sometimes rely, partially, on the following second order reason: If a certain pattern of reasoning served us well in the past, then we can assume that it will serve us well in the future. A case-based argument from parallel reasoning would then use the existence of the justified source decision, the similarity of the cases and this second order reason to support the conclusion that the equivalent decision should be made now. No reconstruction of the argument used in the source case for the target case would be necessary, and the argument would have a structure very similar to an argument by precedent with the added property of being based on a justified source decision. This is one plausible description of how arguers might use and interlocutors might understand this kind of argument. I think that another way is that the case-based argument from parallel reasoning is used to show the cogency of a reasoning pattern which is then—with the help of analogical mapping (see footnote 15) reconstructed in the target-case. In this case no second-order reason is needed. The second interesting point my reviewer made is that many people have a preference to make consistent decisions over time. The reviewer suggested that this might be a constantly present prima facie second order reason to treat earlier decision as a reason to make the equivalent decision in similar situations now. I think this thought is very interesting. Certainly, it is descriptively accurate to say that many or most people prefer to remain consistent. If this preference is well grounded, then there would indeed always be such a prima facie second order reason. However, this preference might be harmful as often as it is useful, especially when it comes to (even slightly) wrong decisions. I do not want to commit myself here, but I do think that the idea is worth considering. In any case, both suggestions point to the possibility that few case-based arguments from parallel reasoning are purely case-based arguments from parallel reasoning. Most such arguments might well be mixed forms. I deal with mixed forms in Sect. 4.2.
I think that the question of which similarities are relevant is the basis for the debate regarding whether arguments by analogy include a missing a premise in the form of a conditional that lists the properties possessed by both analogues. For contributions to this discussion see: (Govier 1989; Waller 2001; Guarini 2004; Shecaira 2013; Bermejo-Luque 2014).
For my purposes, this is an important virtue because the point I will be making in the next sections about relevant similarities is rather modest, but can become very complicated if I do not have a simple account of similarity-relevance to use. So far, I have tried to show that there are two different ways in which the (relevant) similarity between two cases can itself be relevant for the decision that has to be made in the target case. I was, therefore, not interested in the relevance of the similarities between the analogues, but just in the relevance of the fact that the two are similar. Therefore, I did not need to engage with the vast literature on relevance within an analogy. Now, all I want to argue is that the difference between the two types of arguments with respect to why relevant similarity between the analogues is relevant for the decision translates into a difference with respect to which similarities between the source analogues will be relevant. I do not think that this point would change if I used a more sophisticated account of the relevance of similarities between analogues, like for example the one recently proposed by Macagno et al. (2017). However, presenting it in an accessible manner might then become much more of a challenge.
Holoyak and Thagard propose a multi-constraint model of analogical reasoning (see, e.g. Holoyak and Thagard (1989, 1995). See also Genter (1983), who proposes a very similar model). According to this theory, analogical reasoning works through so-called analogical mapping. Mapping is the establishment of correspondences between elements of the two analogues, the source analogue and the target analogue. When a correspondence for an element of the source analogue is chosen, reasoners typically attempt to fulfill so-called surface and structural constraints. First, to fulfill the surface constraint, they try to find elements in the target-analogue that can be categorized under the same pre-established categories (the less abstract the better) as the corresponding elements in the source analogue or that have similar perceptual qualities (like shape, colour etc) (Holoyak and Thagard 1995, p. 26ff). However, the surface constraint is much less important than the structural constraint (Holoyak and Thagard 1995, p. 29ff). According to this constraint, every mapped element of the source analogue should have one and only one element in the target analogue as a correspondent. In addition, if two elements stand in a certain relation in the source analogue, the same relations should also exist in the target analogue between the two corresponding elements. The better a mapping can correspond to these two constraints (but mainly to the structural constraint), the more similar are the two analogues with respect to their mapped elements. All this fits well with what Juthe says, but most important is that his theory of the relevance of similarities fits with the purpose-constraint as Holoyak and Thagard propose it (e.g. Holoyak and Thagard 1995, p. 35ff). This constraint determines which elements of the analogues become subject to attempted mappings. Analogies are often drawn for a purpose, for example in order to solve a problem in a target analogue that had existed and been solved before in the source-analogue, or in order to make an explanation or an argument. It is then the purpose which is used to pick out the elements in the source-analogue that will be the object of an attempted mapping. If the analogy is used to help solving a problem, for example, the reasoner will attempt to map those elements of the source-analogue that played a role in solving the equivalent problem for the source analogue.
Importantly, I do not think that it is always the case that every element that contributed to the justification of letting your son stay out late has to have an equivalent for your daughter. If the argument for your decision about your son was very strong, but your daughter’s situation is missing an equivalent, it is still possible that there are enough equivalents to establish a somewhat weaker argument for letting her stay out late. (I thank my reviewer for a comment to this effect) In addition, I think that if the situation around allowing your son had some element εa on the basis of which you added an independent premise to the argument for letting him stay out late then it is possible that the argument can function even if there is no equivalent element εa* in your daughter’s case. It can function if there is another, dissimilar element εb in your daughter’s case on the basis of which another independent premise for letting her stay out late can be found that lends at least as much additional weight to the argument as the element εa did in your son’s case. In other words, the analogy might show that only one part of the justification for allowing your son to stay out late also applies to your daughter, but that might be enough if there are additional justifying elements in your daughter’s case.
In their paper “By Parity of Reason”, Woods and Hudak claim that arguments by analogy in general are arguments from parallel reasoning. Maurice A. Finnocchario rejects this claim emphatically (Finocchario 2013, p. 82) and van Laar (2014) limits it by pointing out that only some normative arguments by analogy are arguments by parallel reasoning. I do think that arguments by parallel reasoning are arguments by analogy, but stand with van Laar and his analysis, according to which there are also plenty of other kinds of arguments by analogy. Interestingly, Woods and Hudak, as well as Finnocchario point out that arguments from parallel reasoning are really meta-arguments: arguments that show that two arguments (lines of reasoning) of the same structure can be formed for two different cases—and that therefore if one argument is cogent, then the other one will be too. This would mean that case-to-case arguments from parallel reasoning have a meta-argumentative aspect.
Importantly, I am referring to binding, not persuasive precedent. See footnote 6.
Of course, there are further background reasons needed to justify the existence of this rule. But insofar as judges are bound by the doctrine of precedent, they need not refer to these background reasons when they evaluate arguments by precedent. They merely need to refer to the existence of the rule, and the fact that the rule is valid. Indeed, that it becomes unnecessary to refer to all relevant background consideration when making a decision is one of the great advantages of having rules in the first place (see, e.g. Schauer 1991, p. 145ff). This is vital, among other reasons because there is no consensus between authors as to why exactly the doctrine of stare decisis in the law is justified. Rule of Law reasons, reasons of efficiency, and reasons of predictability are regularly cited, but the lists of reasons are not always the same, and there is disagreement about the relative importance of the reasons (see, e.g. Schauer 1987; Duxbury 2008, Chapter 5; Sherwin 1999; Waldron 2012).
There is a rather drawn out discussion in the common-law literature over whether reasoning with binding precedent is analogical reasoning at all or whether it simply consists of the identification of the ratio or holding, which is then used as the major premise in a deductive inference. The discussion resembles that about the question whether all arguments by analogy can be reduced to deductive inferences (I have alluded to this discussion in footnote 13). One of the most important arguments against rule-account is that often, opinions do not deliver a ratio or holding that is clear enough to be used as a rule. I have participated in this discussion, arguing that either kind of reasoning is possible, but analogical reasoning with (binding) precedent has definite advantages (Stevens, forthcoming). For an impression of this discussion, the reader may look to the following key-contributions: (On the rule-side: Alexander (1989), Alexander and Sherwin (2008), Schauer (2008, 2009); on the analogy-side: Levi (1949), Postema (2007), Rigoni (2014), Hunter (2001), Levenbook (2000); against rules, but not for analogies: Lamond (2005)).
Imagine here a judge, sitting over case (let’s say an immigration case), who wants to make a decision based on her deep-seated belief in some principle that, however, has not been integrated into the law of her country yet (e.g. she believes that people should be able to acquire a visa if they have a deep and sustained emotional commitment to a citizen who is their boyfriend or girlfriend). Instead of citing her actual reason for making her decision in her opinion, she draws together various legal doctrines none of which she is especially fond of (maybe a doctrine that states that immigrants with certain professions—doctors or teachers—will be given preferred treatment), but which lead to the decision she prefers. Now it is not the factor that made her preferred principle applicable that needs to have an equivalent in later cases, but instead those factors that made the legal doctrines she cited applicable.
My analysis of relevant similarity for reasoning by precedent in the law seems considerably different from that of Douglas Walton. He argues that we should think of the relevant similarities in arguments by precedents (and by analogy in general) as the similarity between story-schemes that can be applied to both the source- and the target-case (we find a similar idea in Neil MacCormick 2005, p. 214ff). I do not deny that story-schemes play a role in some arguments by analogy. However, I do not think that this is a fitting general analysis of arguments by analogy or by binding precedent in the law. Story-schemes represent the sequence of events for a certain situation or case. The sequence of events is, however, not always relevant with respect to a decision or conclusion. I agree with Andre Juthe in that there is no reason to think that story-schemes and sequences of events are always the relevant elements in source-analogues (Juthe discusses this in an unpublished manuscript). It should be noted that in his 2012 paper, Walton seems to extend his idea of what belongs into a story scheme: Story schemes also include the mentioning of important properties of the objects and actors and the possible consequences of events, as well as evaluative judgements, classifications, etc. etc. However, with story-schemes so extended, I am not sure how Walton’s idea is any different from Juthe’s idea. Further, with story-schemes extended in such a manner, I am not sure whether referring to them still has the potential of solving the relevance-problem. For, a story so extended could theoretically include any element of the source analogue and what should be included in the story-scheme comes down to the relevance of the source-elements for the Juthean assigned predicate (Walton 2012). What Walton’s story-scheme approach might add is that stories are usually evaluated with respect to their coherence and plausibility for our everyday understanding of how the world usually works. This might contribute to the evaluation of arguments by analogy because it might be worthwhile to ask whether understanding the target-analogue as similar to the source-analogue generated a plausible understanding of the target analogue. But this, again, can be done without reference to stories.
This is the method proposed in Walton et al. (2008). To illustrate, here is an argument scheme for argument by expert opinion:
Major Premise: Source E is an expert in subject domain S containing proposition A.
Minor Premise: E asserts that proposition A is true (false).
Conclusion: A is true (false).
1: Expertise Question: How credible is E as an expert source?
2: Field Question: Is E an expert in the field that A is in?
3: Opinion question: What did E assert that implies A?
4: Trustworthiness Question: Is E personally reliable as a source?
5: Consistency Question: Is A consistent with what other experts assent?
6. Backup Evidence Question: Is E‘s assertion based on evidence? (Walton et al. 2008, p. 310).
In Walton, Reed and Macagno we find argument schemes for practical reasoning by analogy as well as for reasoning by precedent. But both schemes are of limited usefulness. The scheme from practical reasoning by analogy could at most be used for case-to-case arguments from parallel reasoning as they have been described in this paper. This is so because it contains a reference to the correctness of an action in the source analogue in one of the premises and is therefore clearly under-inclusive:
Base Premise: The right thing to do in S1 was to carry out action x.
Similarity Premise: S2 is similar to S1.
Conclusion: Therefore, the right thing to do in S2 is carry out x. (Walton et al. 2008, p. 316)
The scheme for argument by precedent seems to be restricted for arguments by precedent that refer to an established rule. These arguments are a subset of what I describe as arguments by precedent here because the existence of a rule can serve as a second order reason. But Walton, Reed and Macagno do not show the role that the rule plays as a second order reason for treating the similarity between the cases as relevant. (Walton et al. 2008, p. 72/344, see also the scheme for argument by precedent in Walton 2010).
I do not mean to claim that these are all the possibly helpful critical question for the evaluation of arguments by analogy. I do think, however, that these are the most important questions when it comes to the distinction between the two argument types. Andre Juthe offers a list of further critical question in the unpublished manuscript of his dissertation on the topic of argument by analogy.
This might be the case because these arguments have a meta-argumentative aspect: the argument is used not to show that the decision to φ in the past case justifies the decision to φ now. Rather it is supposed to show that there is a justification for deciding to φ now—because all the elements ε1*–εn* necessary for a justification just like the one in the past case are available.
See footnote 16 for a possible exception to this rule-of-thumb.
I am here assuming that an affirmative answer to the question of whether there are sufficient relevant similarities between the two cases does not make the question whether there are relevant differences uninteresting. This is supposed to reflect the way in which everyday arguers seem to often treat arguments by analogy: they reject certain analogies off hand because they do not see a relevant similarity between the analogues—and treat others as worthy of consideration but ultimately unconvincing because they can come up with some relevant difference. We also find this in the law: some precedents are simply not applicable because the present case lacks a similarity to one of the elements cited in the holding of the precedent case. Others are applicable, but can be distinguished because the present case has some element that is the basis for a relevant difference—even though the present case has similarities to all the elements cited in the holding of the precedent case.
I think that this is what likely happens when past cases are used in the law not as binding but instead as persuasive precedent. Persuasive precedents are cases that are legally similar to the case at hand, but are not binding. This can be the case because the present case lacks one of the elements that belong to the holding or because the precedent case comes from another jurisdiction (e.g. was decided in a different circuit). They can be rejected by the judge because she believes that the decision to φ in the precedent was wrong. However, the fact that they exist has some force because second-order reasons referring to the coherence of the legal system apply (see Lamond 2010, 2014). Therefore, the present judge has to find weightier reasons against deciding the case by φ-ing than she would have if the precedent case did not exist.
My father fell into this trap when he made the mistake of agreeing to pick my sister up late at night at a friend’s house. He suddenly found himself frequently waiting for his daughters to be ready to come home until deep into the night.
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Stevens, K. Case-to-Case Arguments. Argumentation 32, 431–455 (2018). https://doi.org/10.1007/s10503-018-9448-z
- Argument by analogy
- Argument by precedent
- Argument schemes
- Argument types