Abstract
The paper suggests a novel methodology for determining the state of legal doctrine on a particular issue by legal scholars. This methodology is inspired by the philosophical field of phenomenology. In particular, the tool of eidetic reduction developed by Edmund Husserl is applied to reach inter-subjectively valid assessments of doctrine. The methodology developed here argues that scholars who wish to discover legal doctrine on a particular issue need to first define general paradigms that explain the relevant legal field. Then, they should develop a hypothesis about the law on the particular issue that concurs with the essential qualities of all these paradigms. Finally, to determine if a hypothesis about the content of the law should be accepted or rejected, it must be checked against legal sources that often include judgments. Reasoning by analogy should be used to learn from judgments with the same policy implications as the doctrine suggested by the hypothesis. The paper offers several heuristics—demonstrated with examples from international law—that can be used to find judgments that have the same policy implications without determining conclusively what these implications are.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Data Availability
No data was generated or analyzed.
Notes
Some commitment by judges to follow previous judgments, so-called stare decisis, is an almost universal principle, but English judges have a particularly strong obligation to follow precedents.
The practice is to follow previous decisions in the International Court of Justice (ICJ) even though the formal principle enshrined in article 59 to the ICJ statute does not recognize binding precedent in this court. See also ECtHR Christine Goodwin v. the United Kingdom, Appl. no. 28957/95 Judgment of 11 July 2002 (stating that the European Court of Human Rights (ECHR) will regularly follow its previous judgments even though it is not legally bound to do so, unless there is a good reason to do otherwise).
Some scholars refer to reasoning by analogy as only a way for judges to find guidance towards a more persuasive decision as opposed to precedent that is binding judges to a make a certain decision against their wishes (Schauer 2008, 455–456). In contrast, the focus of this paper is on building hypotheses on what judges believe they are committed to do. The paper does not build a normative theory, neither on the binding nature of precedent nor on the binding nature of reasoning by analogy.
Friedman stressed that assumptions in economic research are usually untrue because they simplify reality for the purpose of testing a hypothesis that predicts something about facts.
Explaining why legal scholarship should proceed by making assumptions and testing hypotheses about the content of doctrine instead of focusing on transcendental legal concepts.
Vöneky mentions this use of analogy, but focuses on a different use of analogy in this case.
Case concerning military and paramilitary activities in and against Nicaragua (Merits), Judgment, 27 June 1986, ICJ Reports (1986) 14 at 110 (Nicaragua v. US).
Sunstein explains that if someone uses analogy by focusing only on similarities between cases that are also different in some respects without adding an extra argument that justifies the analogy, then this is a case of “bad formalism.”.
Rudolf von Jhering mocked the use of pure legal concepts that claim to lead to normative conclusions without any empirical observations.
Corfu Channel Case (Merits), Judgement, 9 April 1949, ICJ Reports (1949) 4 35.
Sunstein suggests that this is a mental shortcut that may prove more taxing than deciding the case from first principles based on pure policy-oriented reasoning.
Sanremo Handbook on Rules of Engagement, available at http://www.iihl.org/wp-content/uploads/2017/11/ROE-HANDBOOK-ENGLISH.pdf at page 32, Annex B, Rule 12; see Elvina Pothelet, U.S. Military’s “Collective Self-Defense” of Non-State Partner Forces: What Does International Law Say?’ Just Security, October 26, 2018, available at https://www.justsecurity.org/61232/collective-self-defense-partner-forces-international-law-say/.
Weinreb demonstrates how courts reason by comparing facts between current and past cases with little or no policy arguments or statement of general meta-rules.
See also Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) (Merits), 6 November 2003, ICJ Reports (2003), 161 331–333, separate opinion of Judge Simma.
Cf. Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America)(Merits), 6 November 2003, ICJ Reports (2003) 161 at p. 333, Separate Opinion of Judge Simma.
Explaining that the rule that allows retaliating to aggression that is not an armed attack with force that does not reach a self-defense level reflects a tit-for-tat strategy. It is a strategy of immediate and proportionate responses that has been proven by experimental game theory to lead to cooperation in a variety of settings. In contrast, the rule that allows states to accumulate several attacks and respond to them later on with a disproportionately strong attack is a rule that is suitable for situations of uncertainty about the actions of the opponent, for example situations in which a state is not sure if it was attacked deliberately by its neighbor or by a splinter group acting within its neighbor against that neighbor’s will. Based on experimental game theory, it is possible to conclude that such a strategy of delayed and disproportionate responses can prevent unnecessary spirals of counter-reactions because of mistakes and can therefore increase the chances of peace in situations of uncertainty that are prevalent in asymmetric warfare.
Weinreb explains and demonstrates how analogical reasoning can proceed without creating any meta-rules and without any general theory.
Cf. Frederick Schauer is suggesting that some insights from social science conflict with the claim that is often used to defend the common law that specific circumstances can aid a judge in making a good decision.
Sunstein describes the basics of reflective equilibrium reasoning and explains that it is a more sophisticated version of reasoning by analogy.
Hermann is summarizing the insights of phenomenology and suggesting some basic application of phenomenology to law.
It is important to note that the inspiration from phenomenology does not entail accepting its critical perspective on the ability of people to observe facts. Judgments and other legal sources are facts that are susceptible to empirical observation according to this paper. But when trying to establish the normative commitments of judges, it is useful to rely on tentative assumptions or paradigms before making a testable hypothesis. These paradigms can be likened to perceptions in the phenomenological perspective because they cannot be viewed objectively, given that no one can be sure to assess all legal sources on an entire legal field and define an objectively valid paradigm. The allegory between paradigms and perceptions is used solely for taking inspiration from the innovative ways phenomenology recommended to treat such perceptions to reach inter-subjectively valid observations.
See Section 2.
For a clear explanation, see https://www.phenomenologyonline.com/inquiry/methodology/reductio/eidetic-reduction/.
Alfred Jules Ayer, Language Truth and Knowledge (Dover 1952), 35, 41 (making the more general, and contested, claim that only statements based on logical tautologies or empirical observation are significant claims and all other claims are simply nonsense); logical empiricism in Stanford Encyclopedia of Philosophy (https://plato.stanford.edu/entries/logical-empiricism/, accessed 27 May 2022, Part 4.1) (facing theoretical resistance to the general claim about the need to verify all meaningful claims by either logic or empirics, Rudolf Carnap retreated to the claim that it is at least all scientific claims that possess this quality of verification; otherwise, there is no good way to resolve disputes within the scientific community); 1 Scott Soames, Philosophical Analysis in the Twentieth Century: The Dawn of Analysis (Princeton University Press 2003) at 274–99 (describing a full philosophical analysis of the flaws of logical positivism, of which Ayer’s theory is part); ibid at 296–97, 383–84 (explaining that the insights of logical positivism regarding scientific theories can be saved by following the insight of Carl Hempel who argued that theoretical claims are only valuable when they combine empirical observations and hypotheses that lead to predictions, but the commitment to empirical evidence is in the system as a whole and not in any individual argument. A similar claim was made by Willard Van Orman Quine who explained that theories are committed to verification based on observation, but this applies to theories and can never be reduced to a single sentence, given that individual sentences never have stand-alone meaning because their reference to the evidence is always mediated by other sentences that form the theory).
There is a philosophical explanation of this scientific technique that prefers making hypotheses and testing them, so-called “inference to the best explanation” to inductive reasoning. The explanation is that many inferences cannot reasonably be explained as made based on induction because it is impossible to survey all relevant observations. In contrast, it is possible to account for the findings of inductive reasoning as part of a theory that accepts the most successful hypothesis as true (Harman 1965, 88–91).
Explaining how participation of NGOs in international courts could be used to help the effectiveness of these courts. The specific ECHR judgment commented on, ECtHR, CLR v. Romania, appl. no. 47848/08, Judgment of 17 July 2014, allowed an NGO to act as an applicant in the case of a child who died of maltreatment even though the NGO activists could not formally serve as his attorneys and the application was filed only after the child’s death.
Benvenisti argues that the fourth Geneva Convention established the rights of the protected population as the key interest to be guarded by the law of occupation.
Explaining how legal scholars can check hypotheses systematically and shift between assumptions when some consistently fail to assist in the construction of useful hypotheses.
See judgment, Delalić, Mucić, Delić, and Landžo (IT 96–21-A) ICTY Appeal Chamber, 20 February 2001.
Kerr and Mobekk explain the commitment of international criminal law to justice, peace, and reconciliation and the possible tradeoffs between these purposes.
North Sea Continental Shelf, 20 February 1969, ICJ Reports (1969).
North Sea Continental Shelf, 20 February 1969, ICJ Reports (1969) at par. 89–91, 101.
Henriksen is suggesting that international law usually gives priority to order over equity.
North Sea Continental Shelf, 20 February 1969, ICJ Reports (1969) at par. 89.
Evans explains that digressions from the equidistance method do not take into account broad notions of distributive justice, such as economic and social factors; therefore, the sense of equity they promote is limited.
ECtHR Hirst v. The United Kingdom (No. 2), Appl. no. 74025/01, Judgment of 6 October 2005 (Hirst case).
Ibid at par. 47.
There are other ways for the ECHR to respect the essential properties of both soveregnity and human rights. For example, scholars have recently observed that the ECHR has started to examine the specific legislative and judicial processes within states and decides whether to grant a wider or a narrower margin of appreciation to states based on the quality of these processes. See Robert Spano, ‘Universality or Diversity of Human Rights: Strasburg in the Age of Subsidiarity’ (2014) 14 Human Rights Law Review 487.
The justification of judicial review by the need to fix problems in the democratic process and protect discrete and insular minorities who are devoid of political power was investigated at John Hart Ely, Democracy and Distrust – A Theory of Judicial Review (Harvard University Press 1980). See also Bruce A. Ackerman, ‘Beyond Carolene Products’ (1985) 98 Harvard Law Review 713 at 724 (refining this argument by explaining that sometimes it is wide and diffuse social groups that have less political power because of their inability to coordinate their actions).
Hirst case, par. 82.
Holtermann and Madsen explain that legal scholars are supposed to simply describe the normative commitments of judges.
References
Ackerman BA (1985) Beyond Carolene products. Harv Law Rev 98:713
Ayer AJ (1952) Language truth and knowledge. Dover
Benvenisti E (2003) The Security Council and the law on occupation: Resolution 1483 on Iraq in historical perspective. IDF Law Rev 1:19
Benvenisti E (1999) Margin of appreciation, consensus and universal standards. N Y Univ J Int Law Polit 31:843
Brewer S (1996) Exemplary reasoning: semantics, pragmatics, and the rational force of legal argument by analogy. Harv Law Rev 109:923
Cardozo BN (1921) The nature of the judicial process. Yale University Press
Case concerning military and paramilitary activities in and against Nicaragua (Merits). Judgment, 27 June 1986, ICJ Reports 14, p. 110 (Nicaragua v. US)
Case concerning oil platforms (Islamic Republic of Iran v. United States of America) (Merits), 6 November 2003, ICJ Reports 161
CLR v. Romania, appl. no. 47848/08, Judgment of 17 July 2014
Cohen FS (1935) Transcendental nonsense and the functional approach. Columbia Law Rev 35:809
Corfu Channel Case (Merits) (1949) Judgement. 9 April 1949, ICJ Reports:35
Côté L (2005) Reflections on the exercise of prosecutorial discretion in international criminal law. 3 Journal of International Criminal Justice 162
Cross R, Harris JW (1991) Precedent in English law (4th edn). OUP
De Brabandere E (2016) The use of precedent and external case law in the International Court of Justice and the international tribunal for the law of the sea. 15 Law & Practice of International Courts and Tribunals 24
Delalić, Mucić, Delić, and Landžo (IT 96–21-A) ICTY Appeal Chamber, 20 February 2001
Dinstein Y (2017) War, aggression and self-defence (6th edn). CUP
Dothan S (2015) Luring NGOs to international courts: a comment on CLR v. Romania. Heidelberg J Int Law 75:635
Dothan S (2018a) When immediate responses fail. 51 Vanderbilt J Transnational Law 1075:1089–1090
Dothan S (2018b) Introduction to the symposium issue: margin of appreciation and democracy: human rights and deference to political bodies. 9 J Int Dispute Settlement 145:146–147
Dothan S (2019) The three traditional approaches to treaty interpretation: a current application to the European Court of Human Rights. Fordham Int Law J 42:765
Dothan S (2020) International judicial review: when should international courts intervene? Cambridge University Press
Dothan S (2021) As if: why legal scholarship needs assumptions. Seton Hall Law Rev 51:645
Drummond JJ (2007) Historical dictionary of Husserl’s philosophy. Scarecrow Press:64
Ely JH (1980) Democracy and distrust – a theory of judicial review. Harvard University Press
Evans MD (2014) International law (4th edn). OUP
Friedman M (2007) The methodology of positive economics. In Daniel M Hausman (ed) The philosophy of economics: an anthology. (CUP, 3rd edn. 2007):145
Friedmann W (1966) The changing structure of international law. Columbia University Press
Goodwin C (2002) v. the United Kingdom, Appl. no. 28957/95 Judgment of 11 July 2002
Harman GH (1965) The inference to the best explanation. Philos Rev 74:88
Henriksen A (2019) International law (2nd edn). OUP
Hermann DHJ (1982) Phenomenology, structuralism, hermeneutics, and legal study: applications of contemporary continental thought to legal phenomena. Univ Miami Law Rev 36:379
Hilliam R (2006) Galileo Galilei: father of modern science. Rosen Pub Group
Hirst v. The United Kingdom (No. 2), Appl. no. 74025/01, Judgment of 6 October 2005
Holmes, Jr OW (1997) The path of the law. Harv Law Rev 110:991
Holtermann JVH, Madsen MR (2015) European new legal realism and international law: how to make international law intelligible. Leiden J Int Law 28:211
Holtermann J (2017) A straw man revisited: resettling the score between H.L.A. Hart and Scandinavian legal realism. Santa Clara Law Rev 57:1
https://www.phenomenologyonline.com/inquiry/methodology/reductio/eidetic-reduction/. Accessed 19 Mar 2023
Husserl E (1960) Cartesian meditations: an introduction to phenomenology (trans. Dorion Cairns, Martinus Nijhoff Publishing 1960)
Kerr R, Mobekk E (2007) Peace and justice: seeking accountability after war. Polity Press
Koskenniemi M (2005) From apology to Utopia: the structure of international legal argument. CUP
Legg A (2012) The margin of appreciation in international human rights law: deference and proportionality. OUP
Karl N Llewellyn (1962) Jurisprudence: realism in theory and practice. Routledge
Logical empiricism. In: Stanford encyclopedia of philosophy. https://plato.stanford.edu/entries/logical-empiricism/. Accessed 19 Mar 2023
North Sea Continental Shelf, 20 February 1969, ICJ Reports
Arnardóttir OM (2014) The differences that make a difference: recent developments on the discrimination grounds and the margin of appreciation under Article 14 of the European Convention on Human Rights. Hum Rights Law Rev 14:647
Popper K (2002) Conjectures and refutations. Routledge Classics
Posner RA (2006) Reasoning by analogy. Cornell Law Rev 91:761
Pothelet E (2018) U.S. Military’s “Collective Self-Defense” of non-state partner forces: what does international law say? Just Security, October 26, 2018, available at: https://www.justsecurity.org/61232/collective-self-defense-partner-forces-international-law-say
Ross A (2019) On law and justice. OUP
Sanremo handbook on rules of engagement. available at: http://www.iihl.org/wp-content/uploads/2017/11/ROE-HANDBOOK-ENGLISH.pdf at p. 32, Annex B, Rule 12. Accessed 19 Mar 2023
Schabas WA (2008) Prosecutorial discretion v. judicial activism at the International Criminal Court. J Int Crim Justice 6:731
Schauer F, Spellman BA (2017) Analogy, expertise, and experience. Univ Chicago Law Rev 84:249
Schauer F (1987) Precedent. Stanford Law Rev 39:571
Schauer F (2006) Do cases make bad law? Univ Chicago Law Rev 73:883
Schauer F (2008) Why precedent in law (and elsewhere) is not totally (or even substantially) about analogy. Perspect Psychol Sci 3:454
Segal JA, Spaeth HJ (2002) The Supreme Court and the attitudinal model revisited. CUP
Shany Y (2006) Toward a general margin of appreciation doctrine in international law? Eur J Intl Law 16:907
Soames S (2003) Philosophical analysis in the twentieth century: the dawn of analysis. Princeton University Press
Spano R (2014) Universality or diversity of human rights: Strasburg in the age of subsidiarity. Hum Rights Law Rev 14:487
Sunstein CR (1993) On analogical reasoning. Harv Law Rev 106:741
Tams CJ (2009) The use of force against terrorists. Eur J Int Law 20:359
H. Vaihinger. The philosophy of ‘As If’: the system of the theoretical, practical and religious fictions of mankind (trans. C.K. Ogden, Martion Fine Books 2009)
von Jhering R (1985) In the heaven of legal concepts: a fantasy. Temple Law Q 58:799
von Staden A (2012) The democratic legitimacy of judicial review beyond the state: normative subsidiarity and judicial standards of review. Int J Constitutional Law 10:1023
Vöneky S (n.d.) Analogy in international law. In: Max Planck encyclopedias of international law. https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1375?prd=MPIL
Weinreb LL (2005) Legal reason: the use of analogy in legal argument. CUP
Yoshifumi T (2001) Reflections on the concept of proportionality in the law of maritime delimitation. Int J Mar Coast Law 16:433
Zahavi D (2003) Husserl’s phenomenology. Stanford University Press
Zahavi D (2019) Phenomenology: the basics. Routledge
Acknowledgements
I thank Patrick Barry, Claudio Corradetti, Laurence R. Helfer, Jakob v. H. Holtermann, Jan Komárek, and Mikael Rask Madsen for many instructive conversations.
Funding
This research is funded by the Danish National Research Foundation (Grant no. DNRF105) and conducted under the auspices of iCourts, the Danish National Research Foundation’s Centre of Excellence for International Courts.
Author information
Authors and Affiliations
Corresponding author
Ethics declarations
Ethics Approval and Consent to Participate
Not applicable
Competing Interests
The author declares no competing interests.
Additional information
Publisher's note
Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.
Rights and permissions
Springer Nature or its licensor (e.g. a society or other partner) holds exclusive rights to this article under a publishing agreement with the author(s) or other rightsholder(s); author self-archiving of the accepted manuscript version of this article is solely governed by the terms of such publishing agreement and applicable law.
About this article
Cite this article
Dothan, S. A New Model of Reasoning by Analogy. Jus Cogens 5, 33–58 (2023). https://doi.org/10.1007/s42439-023-00074-z
Accepted:
Published:
Issue Date:
DOI: https://doi.org/10.1007/s42439-023-00074-z