Analogy and Balancing: The Partial Reducibility Thesis and Its Problems

Revus – Journal for Constitutional Theory and Philosophy of Law (2015) 25. 141-154

14 Pages Posted: 9 Aug 2015

See all articles by David Duarte

David Duarte

University of Lisbon - School of Law

Date Written: June 1, 2015

Abstract

With an analysis of the structure and the sequence of analogy, the paper is mainly a critique to the partial reducibility thesis: a thesis sustaining that analogy, besides a strictly analogical step, is in the remaining part reducible to balancing. Thus, the paper points out some problems raised by the partial reducibility thesis, such as the contingency of reducibility or the fact that a proper analogy is done under the cover of a balancing. The main point is, however, the claim that analogy and balancing have opposite normative conditions, being this premise the reason to a structural explanation for the unacceptability of the reducibility enterprise.

Keywords: analogy, antecedent, balancing, factors of comparison, gaps, partial reducibility thesis, principles, rules, similarity, subsumption

Suggested Citation

Duarte, David, Analogy and Balancing: The Partial Reducibility Thesis and Its Problems (June 1, 2015). Revus – Journal for Constitutional Theory and Philosophy of Law (2015) 25. 141-154, Available at SSRN: https://ssrn.com/abstract=2641254

David Duarte (Contact Author)

University of Lisbon - School of Law ( email )

Lisboa
Portugal

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