The Structure of Arguments by Analogy in Law

Argumentation (2016), DOI 10.1007/s10503-016-9409-3

Edinburgh School of Law Research Paper No. 06/2017

40 Pages Posted: 8 Apr 2017 Last revised: 10 Apr 2017

See all articles by Luís Duarte d'Almeida

Luís Duarte d'Almeida

University of Edinburgh - School of Law

Claudio Michelon

University of Edinburgh - School of Law

Date Written: 2016

Abstract

Successful accounts of analogy in law have two burdens to discharge. First, they must reflect the fact that the conclusion of an argument by analogy is a normative claim about how to decide a certain case (the target case). Second, they must not fail to accord relevance to the fact that the source case was authoritatively decided in a certain way. We argue in the first half of this paper (Sections 2 to 4) that the common view of the structure of analogical arguments in law cannot overcome these hurdles. In the second half (Sections 5 to 7) we develop an original account that aims to succeed where others failed.

Keywords: Analogy, Judicial precedent, Legal argumentation, Legal reasoning, Justification of judicial decisions

Suggested Citation

Duarte d'Almeida, Luís and Michelon, Claudio, The Structure of Arguments by Analogy in Law (2016). Argumentation (2016), DOI 10.1007/s10503-016-9409-3, Edinburgh School of Law Research Paper No. 06/2017, Available at SSRN: https://ssrn.com/abstract=2948558 or http://dx.doi.org/10.2139/ssrn.2948558

Luís Duarte d'Almeida

University of Edinburgh - School of Law ( email )

Old College
South Bridge
Edinburgh, EH8 9YL
United Kingdom

Claudio Michelon (Contact Author)

University of Edinburgh - School of Law ( email )

Old College
South Bridge
Edinburgh, EH8 9YL
United Kingdom

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