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)

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)

H. L. A. Hart is heir and torch-bearer of a great tradition in the philosophy of law which is realist and unromantic in outlook. It regards the existence and content of the law as a matter of social fact whose connection with moral or any other values is contingent and precarious. His analysis of the concept of law is part of the enterprise of demythologising the law, of instilling rational critical attitudes to it. Right from his inaugural lecture in Oxford (...) he was anxious to dispel the philosophical mist which he found in both legal culture and legal theory. In recent years he has shown time and again how much the rejection of the moralizing myths which accumulated around the law is central to his whole outlook. His essays on “Bentham and the Demystification of the Law” and on “The Nightmare and the Noble Dream” showed him to be consciously sharing the Benthamite sense of the excessive veneration in which the law is held in Common Law countries, and its deleterious moral consequences. His fear that in recent years legal theory has lurched back in that direction, and his view that a major part of its role is to lay the conceptual foundation for a cool and potentially critical assessment of the law are evident. (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)

We present empirical evidence from social psychological research which suggests that standard methods employed when teaching the heuristics and biases program in the context of critical thinking instruction are likelier to facilitate the discernment and correction of biases in others’ reasoning than to have a similar effect in the self-monitoring case. Exemplified by the social phenomenon of false polarization, we suggest that CT instruction may be improved by fostering student’s abilities at counterfactual meta-cognition, and present a corresponding teaching and learning (...) activity. (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)

In this article I argue for rule-based, non-monotonic theories of common law judicial reasoning and improve upon one such theory offered by Horty and Bench-Capon. The improvements reveal some of the interconnections between formal theories of judicial reasoning and traditional issues within jurisprudence regarding the notions of the ratio decidendi and obiter dicta. Though I do not purport to resolve the long-standing jurisprudential issues here, it is beneficial for theorists both of legal philosophy and formalizing legal reasoning to see where (...) the two projects interact. (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 chapter contains section titled: Introduction Legal Indeterminacy The Core Claim of American Legal Realism Two Branches of Realism Naturalized Jurisprudence? How Should Judges Decide Cases? Legacy of Legal Realism I: Legal Education and Scholarship in the United States Legacy of Legal Realism II: Legal Theory References Further Reading.

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 paper describes one way in which a precise reason model of precedent could be developed, based on the general idea that courts are constrained to reach a decision that is consistent with the assessment of the balance of reasons made in relevant earlier decisions. The account provided here has the additional advantage of showing how this reason model can be reconciled with the traditional idea that precedential constraint involves rules, as long as these rules are taken to be defeasible. (...) The account presented is firmly based on a body of work that has emerged in AI and Law. This work is discussed, and there is a particular discussion of approaches based on theory construction, and how that work relates to the model described in this paper. (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.