The Structure of Arguments by Analogy in Law
Argumentation (2016), DOI 10.1007/s10503-016-9409-3
40 Pages Posted: 8 Apr 2017 Last revised: 10 Apr 2017
Date Written: 2016
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
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