|Abstract||Many legal theorists have argued that analogical reasoning is merely rule-following in which the general rule is not stated. Lloyd Weinreb's tries to defend the practice of analogical reasoning on its own terms. He does so by giving examples of the way people use analogical reasoning, both in legal and non-legal contexts, as a means for deciding how to act in particular circumstances. By itself such evidence does not support Weinreb's case, because to justify analogy he must show that analogical reasoning can somehow lead us to correct answers. Moreover, his evidence does nothing to challenge the claim that analogical reasoning is simply following suppressed rules.I try to give Weinreb a helping hand. I use the data he mentions that people actually reason by analogy as a starting point for a novel justificatory account of analogical reasoning based on the notion of reliable results: a process of reasoning is reliable, and therefore reliance on it justified, if it tends to generate correct results. This requires explaining what counts as correct results in law, which is a question of political philosophy. I show that the most fundamental condition for the acceptability of analogical reasoning is that the standard of legal correctness is not determined by principles derived by Reason (as is the approach in the civil law tradition) but rather by a standard of acceptance (more prevalent in the common law tradition). Nonetheless, I argue that there two other conditions - shared social values and skepticism about the possibility of discovering the right normative foundations to legal questions - that together have to obtain in order to justify reliance on analogical reasoning. Since that in a modern society it is unlikely that these two conditions are not likely to obtain, I conclude that even this sympathetic reconstruction of Weinreb's argument ultimately fails.|
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
|Through your library||Only published papers are available at libraries|
Similar books and articles
Nancy J. Nersessian (1988). Reasoning From Imagery and Analogy in Scientific Concept Formation. PSA: Proceedings of the Biennial Meeting of the Philosophy of Science Association 1988:41 - 47.
Mark Johnson (1988). Some Constraints on Embodied Analogical Understanding. In Analogical Reasoning. Dordrecht: Kluwer.
Paul F. A. Bartha (2010). By Parallel Reasoning: The Construction and Evaluation of Analogical Arguments. Oxford University Press.
Thomas Young (1993). Analogical Reasoning and Easy Rescue Cases. Journal of Philosophical Research 18:327-339.
Daniel C. Krawczyk, Keith J. Holyoak & John E. Hummel (2004). Structural Constraints and Object Similarity in Analogical Mapping and Inference. Thinking and Reasoning 10 (1):85 – 104.
F. Atria (1999). Legal Reasoning and Legal Theory Revisited. Law and Philosophy 18 (5):537-577.
Cynthia Koenig & Richard Griggs (2004). Facilitation and Analogical Transfer in the THOG Task. Thinking and Reasoning 10 (4):355 – 370.
Paulo Abrantes (1999). Analogical Reasoning and Modeling in the Sciences. Foundations of Science 4 (3):237-270.
Added to index2009-01-28
Total downloads11 ( #107,400 of 722,916 )
Recent downloads (6 months)1 ( #60,917 of 722,916 )
How can I increase my downloads?