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)

Precedent is a central feature of legal practice, requiring courts to follow decisions reached in earlier cases, thereby transforming the decisions in individual cases into a source of law. This article examines two major questions associated with precedent: (a) how to characterise the way that precedent operates as a source of law; and (b) how to justify the requirement that courts follow earlier decisions regardless of the merits of those decisions. Precedents are often thought to create general legal rules, but (...) it is controversial whether this is the best way to understand their role in legal reasoning. Equally, it is unclear that the most common justifications for precedent unequivocally vindicate the practice. (shrink)

Bruce Waller has defended a deductive reconstruction of the kinds of analogical arguments found in ethics, law, and metaphysics. This paper demonstrates the limits of such a reconstruction and argues for an alternative. non-deductive reconstruction. It will be shown that some analogical arguments do not fit Waller's deductive schema, and that such a schema does not allow for an adequate account of the strengths and weaknesses of an analogical argument. The similarities and differences between the account defended herein and the (...) Trudy Govier's account are discussed as well. (shrink)

This paper offers a new framework for thinking about the relationship between the common law of property and the rule of law. The standard way of framing this relationship is within the terms of the form/substance debate within the literature on the rule of law: Does the rule of law include only formal and procedural aspects or does it also encompass and support substantive rights such as private property rights and civil liberties? By focusing on the nature of common-law reasoning, (...) I wish to question the form/substance dichotomy that frames this debate and to show that the formal aspects of the rule of law are in fact principles widely adopted within the practice of common-law reasoning and as such play a large role in shaping the substantive content of common-law property rights. Understanding this has implications beyond the relationship between property law and the rule of law. (shrink)

This paper presents the results of training an artificial neural network (ANN) to classify moral situations. The ANN produces a similarity space in the process of solving its classification problem. The state space is subjected to analysis that suggests that holistic approaches to interpreting its functioning are problematic. The idea of a contributory or pro tanto standard, as discussed in debates between moral particularists and generalists, is used to understand the structure of the similarity space generated by the ANN. A (...) spectrum of possibilities for reasons, from atomistic to holistic, is discussed. Reasons are understood as increasing in nonlocality as they move away from atomism. It is argued that contributory standards could be used to understand forms of nonlocality that need not go all the way to holism. It is also argued that contributory standards may help us to understand the kind of similarity at work in analogical reasoning and argument in ethics. Some objections to using state space approaches to similarity are dealt with, as are objections to using empirical and computational work in philosophy. (shrink)

Bruce Waller has defended a deductive reconstruction of the kinds of analogical arguments found in ethics, law, and metaphysics. This paper demonstrates the limits of such a reconstruction and argues for an alternative. non-deductive reconstruction. It will be shown that some analogical arguments do not fit Waller's deductive schema, and that such a schema does not allow for an adequate account of the strengths and weaknesses of an analogical argument. The similarities and differences between the account defended herein and the (...) Trudy Govier's account are discussed as well. (shrink)

Bentham is a severe critic of common law, denouncing it as ‘sham law’. Bentham’s denunciation of common law as ‘sham law’ is, however, an evaluative censure, not a descriptive account. A realistic account of the nature of common law can be constructed from his writings. According to this account, first, common law is a collection of authoritative mandates. Second, judicial decisions do not evidence common law; on the contrary, judges, through their decisions, create common law by means of legalizing both (...) customs and single actions. Common law is not, therefore, immemorial, nor did it originate in the people’s consent. Third, stare decisis is necessary for common law to fulfil the function of law, but it has no independent value: it is the principle of utility alone that explains, justifies, and decides the use of stare decisis. (shrink)

Selon une thèse largement partagée, le droit et une pratique sociale et les contributions des participants sont complémentaires les unes des autres. Dans ces conditions, le raisonnement juridique consiste d’abord en une interprétation de ces pratiques et présuppose un point de vue interne de la part de celui qui souhaite en rendre compte. Le raisonnement juridique est ainsi conçu comme une argumentation pratique, subordonnée aux exigences de la rationalité car ceux qui participent à la pratique juridique sont contraints de donner (...) des raisons à leur action et ces raisons tissent un réseau de contraintes. Très séduisante, cette thèse qui doit beaucoup à la critique des réalistes par Hart, n’en demeure pas moins justiciable de quelque critique. (shrink)