Parallel Reasoning by Ratio Legis in Contemporary Jurisprudence. Elements for a Dialogical Approach

Abstract

Nowadays, there is a quite considerable amount of literature on the use of analogy or more generally of inferences by parallel reasoning in contemporary legal reasoning, and particularly so within Common Law. These studies are often motivated by researches in artificial intelligence seeking to develop suitable software-support for legal reasoning. Recently; Rahman/Iqbal/Soufi (2020) developed a dialogical approach in the framework of Constructive Type Theory to what in Islamic Jurisprudence was called qiyās or correlational inferences. In their last chapter the authors suggested that such an approach contributes to the study of patterns of reasoning by precedent cases within contemporary common Law. In the present paper we will further motivate the deployment within Civil and Common Law of the dialogical framework developed in Rahman/Iqbal/Soufi (2020). After a presentation of Scott Brewer's take on analogy within Common Law, that has striking structural similarities to reasoning by precedent case rooted in ratio legis (known in Islamic Jurisprudence as qiyās al-'illa or correlational inference by the occasioning factor), we will illustrate the implementation of the framework with a brief discussion of some cases of legal reasoning based in Spanish Civil Law but where the accent is put in the emerging ruling rather than in the existing of a case as in Common Law. Moreover; quite surprisingly, the case under study suggests that even cases of Law-interpretation fit the argumentation pattern of qiyās al-'illa. A caveat: in the present paper we will focus mainly in discussing the dynamics of the meaning constitution involved rather than in setting the rules of the underlying dialogical framework, the latter is the subject of a follow-up paper.

Links

PhilArchive



    Upload a copy of this work     Papers currently archived: 99,445

External links

Setup an account with your affiliations in order to access resources via your University's proxy server

Through your library

  • Only published works are available at libraries.

Similar books and articles

Conditionals and Legal Reasoning.Shahid Rahman & Adjoua Bernadette Dango - 2017 - Nunya. Philosophie, Patrimoine Scientifique Et Technique 5.
Arguments and Stories in Legal Reasoning: The Case of Evidence Law.Gianluca Andresani - 2020 - Archiv Fuer Rechts Und Sozialphilosphie 106 (1):75-90.
Precedent and Legal Analogy.Kevin D. Ashley - 2011 - In Colin Aitken, Amalia Amaya, Kevin D. Ashley, Carla Bagnoli, Giorgio Bongiovanni, Bartosz Brożek, Cristiano Castelfranchi, Samuele Chilovi, Marcello Di Bello, Jaap Hage, Kenneth Einar Himma, Lewis A. Kornhauser, Emiliano Lorini, Fabrizio Macagno, Andrei Marmor, J. J. Moreso, Veronica Rodriguez-Blanco, Antonino Rotolo, Giovanni Sartor, Burkhard Schafer, Chiara Valentini, Bart Verheij, Douglas Walton & Wojciech Załuski (eds.), Handbook of Legal Reasoning and Argumentation. Dordrecht, Netherland: Springer Verlag. pp. 673-710.
Defeasible reasoning in japanese criminal jurisprudence.Katsumi Nitta & Masato Shibasaki - 1997 - Artificial Intelligence and Law 5 (1-2):139-159.

Analytics

Added to PP
2023-03-25

Downloads
16 (#1,091,145)

6 months
7 (#541,996)

Historical graph of downloads
How can I increase my downloads?

Author's Profile

Shahid Rahman
Université Charles-de-Gaulle - Lille 3

Citations of this work

No citations found.

Add more citations

References found in this work

No references found.

Add more references