Summary
Analogical reasoning in law
Analogical reasoning does not correctly characterize the reasoning used in law; moreover, law does not require its own distinctive kind of reasoning. Analogical reasoning is best understood as a way of discerning immanent legal principles, but it cannot deal with the problem of moral errors in past legal decisions. Legal reasoning is adequately characterized in terms of other forms of reasoning, such as reflective equilibrium to establish moral justification and rule interpretation in the context of a specific case. Ronald Dworkin has provided the best account of analogical reasoning in law; the views of Cass Sunstein and Scott Brewer are also discussed.See the full content of this document
Extract
Bad beginnings.
Like those movie monsters who, when dealt what surely should be mortal wounds, manage to revive themselves and jump out at the prematurely at ease, so too analogical reasoning in law -- ARIL as I shall call it -- is back again in apparent triumph after having been most recently attacked by Peter Westen(1) and Fred Schauer.(2) ARIL's virtues were proclaimed recently by both Cass Sunstein(3) and Scott Brewer(4) in the pages of the Harvard Law Review.
My aim in this Article is to convince you that, like those movie monsters, ARIL is a fantasy. We can reason in law and about law in a variety of ways, but none of those ways is ARIL. Moreover, like those movie monsters, ARIL, were it to exist, would be deformed. It would be deformed by the same process that creates human monsters: bad beginnings. In discrediting ARIL I mean also to discredit the notion that law is an autonomous discipline with a distinctive form of reasoning. Some who argue for law's autonomy are mystics:(5) they assert that the legally trained can directly grasp relevant similarities and differences among cases without any further reasoning, that is, that legal training produces a special (and presumably superior) way of seeing things. Others are less mystical; they attempt to describe ARIL in terms of familiar forms of reasoning such as deduction, induction, and abduction.(6) Nonetheless, these rationalists, like the mystics, believe ARIL is a distinctive and legitimate form of reasoning. My critique of ARIL extends to both its rationalist and mystical proponents and to the autonomous methodology of law that they seek to advance. Finally, I attempt to show how the most promising account of ARIL is really Ronald Dworkin's account of law.(7) Dworkin's jurisprudence is an explanation and justification of both ARIL and law's autonomy. Dworkin's account of ARIL is, however, untenable. In case I be misunderstood, I should make clear at the outset that in attacking ARIL, I am not attacking either normatively or descriptively courts' reliance on precedent. Courts do cite precedents and claim to be bound by them, and my argument discredits neither the sincerity nor the tenability of that claim. I have previously analyzed precedential constraint and concluded that precedent cases can justifiably constrain later ones to the extent the former lay down rules to govern the latter.(8) My argument here is not that courts cannot follow precedents, but that ARIL is not a satisfactory methodology for doing so, either descriptively or normatively. I. What Is ARIL? The Views from the Literature We first must get a clear grasp of ARIL's nature. ARIL is frequently invoked, but infrequently described with any rigor or care. We know that ARIL has something to do with comparing possible resolutions of some present legal issue with past resolutions of "similar" legal issues, and that ARIL is operating when we resolve the present legal issue in a particular manner because of the way similar issues were resolved in the past. But how do we determine whether issues and their resolutions are "similar" or "dissimilar"? And does ARIL operate only in common law decisionmaking, or does it operate as well in decisions invoking canonical texts, such as statutes and constitutions? We must answer these and other questions before we can recognize our target. A. Sunstein's Account of ARIL Cass Sunstein recently described and praised ARIL in an article in the Harvard Law Review(9) and in a book.(10) According to Sunstein, when ARIL is employed in common law decisionmaking, a court looks at precedent cases, grasps the norm implicit in them, and then applies the norm to the case at hand.(11) The norm need not be the rationale(s) given in the precedent cases.(12) Rather, the court employing ARIL is free to interpret the precedent cases differently from the way in which the precedent courts themselves understood those cases. That in turn means ...See the full content of this document
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