This article discusses the nature of persuasive authorities in the common law, and argues that many of them are best understood in terms of their (being regarded) as having theoretical rather than practical authorities for the courts that cite them. The contrast between theoretical and practical authority is examined at length in order to support the view that the treatment of many persuasive authorities by courts is more consistent with this view. Finally, it is argued that if persuasive authorities are (...) best understood as theoretical authorities, this raises difficulties for both positivistic and interpretivist theories of law. (shrink)

A familiar jurisprudential view is that a judicial decision functions as a legal precedent by laying down a rule and that the content of this rule is set by officials. Precedents can be followed only by acting in accordance with this rule. This view is mistaken on all counts. A judicial decision functions as a precedent by being an example. At its best, it is an example both for officials and for a target population. Even precedents outside of law function (...) as examples when they have conduct-guiding significance. Examples may be rule-like in their scope, but need not be. Their import is independent of their justification; this point has implications for coherence theories of precedent meaning. The content and scope of a legal decision’s extension is not set exclusively by officials. It is socially set and depends upon social salience. (shrink)

This article argues that legal precedents do not create rules, but rather create a special type of reason in favour of a decision in later cases. Precedents are often argued to be analogous to statutes in their law-creating function, but the common law practice of distinguishing is difficult to reconcile with orthodox accounts of the function of rules. Instead, a precedent amounts to a decision on the balance of reasons in the case before the precedent court, and later courts are (...) required to decide cases on the basis that the earlier decision was correctly decided. (shrink)

The paper provides a qualified defence of Bruce Waller’s deductivist schema for a priori analogical arguments in ethics and law. One crucial qualification is that the schema represents analogical arguments as complexes composed of one deductive inference but also of one non-deductive subargument. Another important qualification is that the schema is informed by normative assumptions regarding the conditions that an analogical argument must satisfy in order for it to count as an optimal instance of its kind. Waller’s schema is defended (...) from criticisms formulated by Trudy Govier, Marcello Guarini and Lilian Bermejo-Luque. (shrink)

This revised edition includes a new Preface outlining developments in Relevance Theory since 1986, discussing the more serious criticisms of the theory, and ...

Practical Reason and Norms focuses on three problems: In what way are rules normative, and how do they differ from ordinary reasons? What makes normative systems systematic? What distinguishes legal systems, and in what consists their normativity? All three questions are answered by taking reasons as the basic normative concept, and showing the distinctive role reasons have in every case, thus paving the way to a unified account of normativity. Rules are a structure of reasons to perform the required act (...) and an exclusionary reason not to follow some competing reasons. Exclusionary reasons are explained, and used to unlock the secrets of orders, promises, and decisions as well as rules. Games are used to exemplify normative systems. Inevitably, the analysis extends to some aspects of normative discourse, which is truth-apt, but with a diminished assertoric force. (shrink)

This book provides a systematic analysis of many common argumentation schemes and a compendium of 96 schemes. The study of these schemes, or forms of argument that capture stereotypical patterns of human reasoning, is at the core of argumentation research. Surveying all aspects of argumentation schemes from the ground up, the book takes the reader from the elementary exposition in the first chapter to the latest state of the art in the research efforts to formalize and classify the schemes, outlined (...) in the last chapter. It provides a systematic and comprehensive account, with notation suitable for computational applications that increasingly make use of argumentation schemes. (shrink)

The book also comes with an exhaustive array of study aids that enable the reader to monitor and enhance the learning process.

This paper investigates the process of reasoning through which a judge determines whether a precedent-case gives her a binding reason to follow in her present-case. I review the objections that have been raised against the two main accounts of reasoning by precedent: the rule-account and the analogy-account. I argue that both accounts can be made viable by amending them to meet the objections. Nonetheless, I believe that there is an argument for preferring accounts that integrate analogical reasoning: any account of (...) reasoning by precedent that is descriptively minimally adequate will leave some room for judicial discretion. Discretion should be used under consideration of the best legally relevant arguments for and against a decision. Integrating analogical reasoning helps the judge to bring to her own attention the strongest case for following. Analogical reasoning also eases the recognition of possible reasons for distinguishing. Thereby, it facilitates a more balanced decision-making process. (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)

Demystifying Legal Reasoning defends the proposition that there are no special forms of reasoning peculiar to law. Legal decision makers engage in the same modes of reasoning that all actors use in deciding what to do: open-ended moral reasoning, empirical reasoning, and deduction from authoritative rules. This book addresses common law reasoning when prior judicial decisions determine the law, and interpretation of texts. In both areas, the popular view that legal decision makers practise special forms of reasoning is false.

Proponents of strict rule-based theories of judicial reasoning in common-law systems have offered a number of criticisms of analogical alternatives. I explain these criticisms and show that at best they apply equally well to rule-based theories. Further, I show how the analogical theories explain a feature of judicial common-law reasoningthat rule-based theories ignore. Finally, I show that reason-based, analogical theories of common-law judicial reasoning, such as those offered by John Horty and Grant Lamond, offer especially strong rejoinders to the rule-theorist (...) objections and persuasive accounts of distinguishing. (shrink)

In this paper a hybrid model of argument from analogy is presented that combines argumentation schemes and story schemes. One premise of the argumentation scheme for argument from analogy in the model claims that one case is similar to another. Story schemes are abstract representations of stories (narratives, explanations) based on common knowledge about how sequences of actions and events we are familiar with can normally be expected to unfold. Story schemes are used (a) to model similarity between two cases, (...) and (2) as the basis of evidence to support the similarity premise of an argument from analogy. Four examples of argument from analogy are used to test the theory. (shrink)

Coalescent argumentation is a normative ideal that involves the joining together of two disparate claims through recognition and exploration of opposing positions. By uncovering the crucial connection between a claim and the attitudes, beliefs, feelings, values and needs to which it is connected dispute partners are able to identify points of agreement and disagreement. These points can then be utilized to effect coalescence, a joining or merging of divergent positions, by forming the basis for a mutual investigation of non-conflictual options (...) that might otherwise have remained unconsidered. The essay proceeds by defining and discussing ‘argument’, ‘position’ and ‘understanding’. These notions are then brought together to outline the concept of coalescent reasoning. (shrink)

ABSTRACT: In this essay I characterize arguments by analogy, which have an impor- tant role both in philosophical and everyday reasoning. Arguments by analogy are dif- ferent from ordinary inductive or deductive arguments and have their own distinct features. I try to characterize the structure and function of these arguments. It is further discussed that some arguments, which are not explicit arguments by analogy, nevertheless should be interpreted as such and not as inductive or deductive arguments. The result is that (...) a presumed outcome of a philosophical dispute will have to be reconsidered. (shrink)

This book discusses theories of legal reasoning and provides an overall view of the rhetoric of legal justification. It shows how and why lawyers arguments can be rationally persuasive even though rarely, if ever, logically conclusive or compelling. It examines the role of "legal syllogism" and universality of legal reasoning, looking at arguments of consequentialism and principle, and concludes by questioning the infallibility of judges as lawmakers.

Rules are a central component of such diverse enterprises as law, morality, language, games, religion, etiquette, and family governance, but there is often confusion about what a rule is, and what rules do. Offering a comprehensive philosophical analysis of these questions, this book challenges much of the existing legal, jurisprudential, and philosophical literature, by seeing a significant role for rules, an equally significant role for their stricter operation, and making the case for rules as devices for the allocation of power (...) among decision-makers. (shrink)

Analogies come in several forms that serve distinct functions. Inductive analogy is a common type of analogical argument, but critical thinking texts sometimes treat all analogies as inductive. Such an analysis ignores figurative analogies, which may elucidate but do not argue; and also neglects a priori arguments by analogy, a type of analogical argument prominent in law and ethics. A priori arguments by analogy are distinctive, but--contrary to the claims of Govier and Sunstein-they are best understood as deductive, rather than (...) a special form of non deductive reasoning. (shrink)

Analogies must be symmetric. If a is like b, then b is like a. So if a has property R, and if R is within the scope of the analogy, then b (probably) has R. However, analogical arguments generally single out, or depend upon, only one of a or b to serve as the basis for the inference. In this respect, analogical arguments are directed by an asymmetry. I defend the importance of this neglected – even when explicitly mentioned – (...) feature in understanding analogical arguments. (shrink)

A theory of analogy must describe how the meaning of an analogy is derived from the meanings of its parts. In the structure‐mapping theory, the interpretation rules are characterized as implicit rules for mapping knowledge about a base domain into a target domain. Two important features of the theory are (a) the rules depend only on syntactic properties of the knowledge representation, and not on the specific content of the domains; and (b) the theoretical framework allows analogies to be distinguished (...) cleanly from literal similarity statements, applications of abstractions, and other kinds of comparisons.Two mapping principles are described: (a) Relations between objects, rather than attributes of objects, are mapped from base to target; and (b) The particular relations mapped are determined by systematicity, as defined by the existence of higher‐order relations. (shrink)

Following a Toulmian account of argument analysis and evaluation, I offer a general unitary schema for, so called, deductive and inductive types of analogical arguments. This schema is able to explain why certain analogical arguments can be said to be deductive, and yet, also defeasible.

Relevance is a triadic relation between an item, an outcome or goal, and a situation. Causal relevance consists in an item's ability to help produce an outcome in a situation. Epistemic relevance, a distinct concept, consists in the ability of a piece of information (or a speech act communicating or requesting a piece of information) to help achieve an epistemic goal in a situation. It has this ability when it can be ineliminably combined with other at least potentially accurate information (...) to achieve the goal. The relevance of a conversational contribution, premiss relevance and conclusion relevance are species of epistemic relevance thus defined. The conception of premiss relevance which results provides a basis for determining when the various ‘arguments ad’ called fallacies of relevance are indeed irrelevant. In particular, an ad verecundiam appeal is irrelevant if the authority cited lacks expertise in a cognitive domain to which the conclusion belongs, the authority does not exercise its expertise in coming to endorse the conclusion, or the conclusion does not belong to a cognitive domain; otherwise the ad verecundiam is relevant. (shrink)

Offering an innovative approach to critical thinking, Good Reasoning Matters! identifies the essential structure of good arguments in a variety of contexts and also provides guidelines to help students construct their own effective arguments. In addition to examining the most common features of faulty reasoning--slanting, bias, propaganda, vagueness, ambiguity, and a common failure to consider opposing points of view--the book introduces a variety of argument schemes and rhetorical techniques. This edition adds material on visual arguments and more exercises.

In this paper we show that an essential aspect of solving the problem of uncritical acceptance of expert opinions that is at the root of the ad verecundiam fallacy is the need to disentangle argument from expert opinion from another kind of appeal to authority. Formal and computational argumentation systems enable us to analyze the fault in which an error has occurred by virtue of a failure to meet one or more of the requirements of the argumentation scheme from argument (...) from expert opinion. We present a method for enhancing this capability by showing how arguments from expert opinion are related to, but different from, arguments from deontic authority. (shrink)

Law in the Age of Pluralism contains a collection of essays on the intersection of legal and political philosophy. Written within the analytical tradition in jurisprudence, the collection covers a wide range of topics, such as the nature of law and legal theory, the rule of law, the values of democracy and constitutionalism, moral aspects of legal interpretation, the nature of rights, economic equality, and more. The essays in this volume explore issues where law, morality and politics meet, and discuss (...) some of the key challenges facing liberal democracies. Marmor posits that a liberal state must first and foremost respect people's personal autonomy and their differing, though reasonable, conceptions of the good and the just. This basic respect for pluralism is shown to entail a rather skeptical attitude towards grand theories of law and state, such as contemporary constitutionalism or Dworkin's conception of 'law as integrity'. The values of pluralism and respect for autonomy, however, are also employed to justify some of the main aspects of a liberal state, such as the value of democracy, the rule of law, and certain conceptions of equality. The essays are organized in three groups: the first considers the rule of law, democracy and constitutionalism. The second group consists of several essays on the nature of law, legal theory, and their relations to morality. Finally, the collection concludes with essays on the nature of rights, the limits of rights discourse, and the value of economic equality. (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)

In this paper, it is shown (1) that there are two schemes for argument from analogy that seem to be competitors but are not, (2) how one of them is based on a distinctive type of similarity premise, (3) how to analyze the notion of similarity using story schemes illustrated by some cases, (4) how arguments from precedent are based on arguments from analogy, and in many instances arguments from classification, and (5) that when similarity is defined by means of (...) episode schemes, we can get a clearer idea of how it integrates with the use of argument from classification and argument from precedent in case-based reasoning by using a dialogue structure. (shrink)

a recent paper, Fábio Perin Shecaira proposes a defence of Waller’s deductivist schema for moral analogical argumentation. This defence has several flaws, the most important of them being that many good analogical arguments would be deemed bad or deficient. Additionally, Shecaira misrepresents my alternative account as something in between deductivism and non-deductivism. This paper is both an attempt at solving this misunderstanding and an analysis and criticism of Waller and Shecaira’s forms of deductivism.