In this article we discuss the so-called cantilever argument, used by Joseph Carens to establish a human right to global freedom of movement. First of all, we criticise Carens’s classification of the argument as both an “analogy” and a “logical extension”. Comparing the cantilever argument with Carens’s popular feudalism analogy suggests understanding it solely as an extension, but certainly not as a “logical” one. Finally, we sketch out whether, by means of the cantilever, he succeeds in shifting the burden of (...) proof to the opponents of such a human right. (shrink)
The purpose of this paper is to analyze the structure and the defeasibility conditions of argument from analogy, addressing the issues of determining the nature of the comparison underlying the analogy and the types of inferences justifying the conclusion. In the dialectical tradition, different forms of similarity were distinguished and related to the possible inferences that can be drawn from them. The kinds of similarity can be divided into four categories, depending on whether they represent fundamental semantic features of the (...) terms of the comparison or non-semantic ones, indicating possible characteristics of the referents. Such distinct types of similarity characterize different kinds of analogical arguments, all based on a similar general structure, in which a common genus is abstracted. Depending on the nature of the abstracted common feature, different rules of inference will apply, guaranteeing the attribution of the analogical predicate to the genus and to the primary subject. This analysis of similarity and the relationship thereof with the rules of inference allows a deeper investigation of the defeasibility conditions. (shrink)
This paper applies recent work on scripts and stories developed as tools of evidential reasoning in artificial intelligence to model the use of argument from analogy as a rhetorical device of persuasion. The example studied is Gerry Spence’s closing argument in the case of Silkwood v. Kerr-McGee Corporation, said to be the most persuasive closing argument ever used in an American trial. It is shown using this example how argument from analogy is based on a similarity premise where similarity between (...) two cases is modeled using the device of a story scheme from the hybrid theory of legal evidential reasoning (Bex in Arguments, stories and criminal evidence: a formal hybrid theory. Springer, Dordrecht 2011). It is shown how the rhetorical strategy of Spence’s argumentation in the closing argument interweaves argument from analogy with explanation through three levels. (shrink)
This paper identifies a type of multi-source (case-based) reasoning and differentiates it from other types of analogical reasoning. Work in cognitive science on mental space mapping or conceptual blending is used to better understand this type of reasoning. The type of argument featured herein will be shown to be a kind of source-blended argument. While it possesses some similarities to traditionally conceived analogical arguments, there are important differences as well. The triple contract (a key development in the usury debates of (...) the fifteenth and sixteenth centuries) will be shown to make use of source-blended arguments. (shrink)
Argument from analogy is a common and formidable form of reasoning in law and in everyday conversation. Although there is substantial literature on the subject, according to a recent survey ( Juthe 2005) there is little fundamental agreement on what form the argument should take, or on how it should be evaluated. Th e lack of conformity, no doubt, stems from the complexity and multiplicity of forms taken by arguments that fall under the umbrella of analogical reasoning in argumentation, dialectical (...) studies, and law. Modeling arguments with argumentation schemes has proven useful in attempts to refine the analyst’s understanding of not only the logical structures that shape the backbone of the argument itself, but also the logical underpinning of strategies for evaluating it, strategies based on the semantic categories of genus and relevance. By clarifying the distinction between argument from example and argument from analogy, it is possible to advance a useful proposal for the treatment of argument from analogy in law. (shrink)
Lloyd Weinreb’s Legal Reason: The Use of Analogy in Legal Argument is the latest contribution to a familiar debate. Since the Second World War, a recurrent theme of Anglo–American jurisprudence has been the desire to explain and justify the process of courtroom adjudication, especially at appellate level. Such explanation and justification has proved extraordinarily elusive. According to the doctrine of separation of powers, the functions of the judiciary must differ from those of the legislature and executive. We therefore need to (...) know the scope of power of each branch of government. Yet, at the same time, judges must be able to declare any inappropriate acts or decisions of either the executive or legislature to be unlawful, illegal and/or unconstitutional. Such explanation and justification is thus tasked with showing how, in a representative democracy, an unelected judiciary stands as a bulwark against tyranny — even if, as in the early years of German fascism, it is a tyranny of the majority — without at the same time causing it to usurp the legitimate functions of the elected representatives of the people. In other words, a theory of judicial adjudication is required which both denies the judiciary any power to trespass on the legitimate territory of the other branches of government, while still permitting — nay, requiring — judges to hold the legislature and executive to account where the political process is unable to do so. This is, in short, the conundrum of the “rule of law.”. (shrink)
Legal Reason describes and explains the process of analogical reasoning, which is the distinctive feature of legal argument. It challenges the prevailing view, urged by Edward Levi, Cass Sunstein, Richard Posner and others, which regards analogical reasoning as logically flawed or as a defective form of deductive reasoning. It shows that analogical reasoning in the law is the same as the reasoning used by all of us routinely in everyday life and that it is a valid form of reasoning derived (...) from the innate human capacity to recognize the general in the particular, on which thought itself depends. The use of analogical reasoning is dictated by the nature of law, which requires the application of rules to particular facts. Written for scholars as well as students and persons generally who are interested in law, Legal Reason is written in clear, accessible prose, with many examples drawn from the law and from everyday experience. (shrink)
This thesis addresses two enduring issues in legal theory-- rationality and its association with rule of law values--by offering detailed models of two patterns of legal reasoning. One is reasoning by analogy. The other is the inference process that legal reasoners use when they defer epistemically to scientific experts in the course of reaching legal decisions. Discussions in both chapters reveal that the inference pattern known as "abduction" is a deeply important element of many legal inferences, including analogy and epistemic (...) deference to experts--something that has been largely unrecognized in legal theory. After presenting a detailed model of analogy, Chapter 1 argues that legal reasoning by analogy, like analogical argument in logic, mathematics, and the natural sciences, possesses a great deal of rational force when properly executed. Chapter 2 investigates the reasoning process by which non-expert legal reasoners defer epistemically to the judgments of scientists. It presents five main conclusions or explanations. Every practical syllogism actually consists of two distinct chains of inference, and what is usually considered in writings on practical reasoning to be the minor premise of a practical syllogism is actually the conclusion of a separate chain of argument. When a practical reasoner defers epistemically to a theoretical expert, this separate chain of argument has a special structure, which is modeled in Chapter 2. The non-expert legal reasoner must always make a prescriptive practical judgment about the standard of epistemic appraisal and level of epistemic confidence that the reasoner requires of scientific evidence before it may be relied upon in reaching a legal decision. Legal systems should be committed to an emergent rule of law ideal identified and referred to as "intellectual due process" which condemns epistemically arbitrary reasoning processes insofar as they play a role in legal decisionmaking. Since non-arbitrariness is a necessary condition of both epistemic and legal legitimacy, we have compelling reason to doubt that the non-arbitrariness condition can be met when non-experts defer epistemically to scientific experts. (shrink)
A meticulous examination of the logical and axiological principles of analogical inference in legal reasoning. The first part presents an elementary but useful survey of traditional and modern logical analyses of analogy and analogical inference. In the second part, these concepts are examined in their juridical applications. Much is made of the conclusion that analogical inference cannot be rendered "binding" by logical considerations alone; to make up for this in legal reasoning, axiological principles must be employed.--L. K. B.
Legal reasoning is not the same as the reasoning in mathematics or the physical sciences. It is like them. Specifying the likeness in more detail, and deciding whether there is more likeness than unlikeness, are the kinds of tasks that legal reasoning is better adapted to do than mathematical or scientific reasoning.
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. (shrink)