Finding Analogies between Cases: On Robert Alexy’s Third Basic Operation in the Application of Law
ON THE PHILOSOPHY OF PRECEDENT, PROCEEDINGS OF THE 24TH IVR WORLD CONGRESS, T. Bustamante, C. Bernal, eds. ARSP-Beiheft 133, pp. 59-71, 2012.
13 Pages Posted: 7 Mar 2012 Last revised: 6 Jan 2013
Date Written: March 7, 2012
The point of this essay is to discuss in a critical way one of Robert Alexy’s recent developments to his theory of legal argumentation. While in his earlier writings Alexy distinguished only two basic operations in the application of law, subsumption and balancing, he has recently changed this theory to claim that legal analogy, or comparison of cases, also figures as a third basic operation which shares the same general features of the former two. My purpose, therefore, will be to answer whether Alexy is right when he holds that the comparison of cases can stand besides balancing and subsumption as a basic operation in the application of law.
Keywords: Alexy, basic operations, legal reasoning, balancing, subsumption, analogy
Suggested Citation: Suggested Citation