Arguments from analogy have been a cornerstone of legal reasoning in Common Law Systems for a relatively long time. According to Farrar, the method of analogy in Common Law Systems involves, in its simplest form, comparison: do the similarities between two cases outweigh the dissimilarities. If they do, the earlier case is followed. If not, the earlier case is distinguished.518 After going through a plethora of theories on reasoning by analogy,Farrar argues that a number of writers recognise that reasoning by analogy is more a question of justification than of logical process. Conceptions of adequate justification have often been expressed in terms of material resemblance.Resemblance relates to the fact relationships between cases as well as to the consequences of treating them the same. The criteria of materiality are determined by principle and policy (interests, values and a combination of practical factors promoting efficiency). Farrar argues that
“what is a resemblance is determined by the subject matter but what resemblances are to be regarded as material is determined by principle and policy in the light of the actual issue...Resemblances are concerned with fact;
materiality with value and policy in a particular context.”519
Another way of looking at the studies on reasoning by analogy is to distinguish theories which emphasize the resemblance of cases from theories which focus on the materiality of that resemblance. According toSchauerand Spellman, the traditional view of reasoning by analogy (represented in the theories ofLeviandWeinreb, for instance) holds a core position according to which the first move in the analogical process is the recognition of a relevant
516 András. 2016. 64-66.
517 Tuori. 2010. 178-182. 195.
518 Farrar. 1997. 3.
519 Ibid. 172-175.
similarity between some previous set of facts and the set of facts that call for decision. After identifying orretrieving these past decisions or set of facts as the source, the legal decision-makers use the outcome produced for that source to justify the outcome of the present case in the process known as mapping.520
The challengers of the traditional view of reasoning by analogy (for instance Posner, Dworkin, Alexander and Sherwin) claim that determinations of resemblance require some metric enabling the analogizer to assess which similarities are important and which are not. This weighing of importance is a normative operation containing policy judgments which is seldom expressed in the judgments. These challengers also argue that there is no important difference between the application of a rule and the alleged discovery of an analogy.521
According to Schauer and Spellman, attempts have been made at reconciling the two approaches depicted above. The theory ofSunstein is of great interest here.Sunstein argues that in law, analogical reasoning has four different but overlapping features: principled consistency, a focus on particulars, incompletely theorized judgments, and principles operating at a low or intermediate level of abstraction. The first feature holds a normative requirement according to which judgments about specific cases must be made consistent with each other. The focus on particulars means that analogical reasoning is a version of “bottom-up” thinking in which the focus is on the particulars of an individual case and where “ideas are developed from the details”. The judgments that underlie convictions about the relevant case are incompletely theorized as they are unaccompanied by a full apparatus to explain the basis for those judgments. Rather than making a policy-oriented jump from the source to the outcome, the analogical argument “operates without a comprehensive theory” using small steps. Finally, analogical reasoning usually operates without express reliance on any general principles or rules about the right or the good.522 This approach, influenced bySunstein’s views on judicial minimalism seems to hold some similarities with the theory of modest notion of coherence byMoral Soriano where supportive structures to a legal proposition is built from small parts, chained and netted together.523 In this study, the role of analogy in legal reasoning has the minimalist function of the theory bySunstein which emphasizes modesty in coherence-building,a relatively high level of formalism (or low level of abstraction by Sunstein) and the (positive) effects of systematising the law (consistency by Sunstein). Here, once again, the steps of hierarchy run from the nearest to the
520 Schauer – Spellman. 2017. 251-254. Levi. 2013. Weinreb. 2005. 111-112.
521 Schauer – Spellman. 2017. 254-258. Posner. 2008. 180-191. Dworkin. 1997. 353, 371. Alexander – Shwerwin. 2008. 88
522 Schauer – Spellman. 259-260. Sunstein. 1993. 746-748.
523 Schauer – Spellman. 260. Sunstein. 1999.
furthest, playing to the tunes ofsedes materiae and the sequentialist approach to legal argumentation.
Sherwin has encapsulated the benefits from analogical reasoning as follows:
“In my view, the virtue of analogical reasoning lies in a variety of indirect benefits that are likely to result when judges adopt it as a practice and consider themselves obliged to explain new decisions in terms of their relation to past cases. First, a diligent process of studying and comparing prior decisions produces a wealth of data for decisionmaking. Second, the rules and principles that result from analogical reasoning represent the collaborative efforts of a number of judges over time. Third, analogical reasoning tends to correct biases that might otherwise lead judges to discount the likelihood or importance of reliance on prior decisions. Fourth, analogical reasoning exerts a conservative force on law: by holding the development of law to a gradual pace, it limits the scope of error and contributes to public acceptance of law as a standard of conduct.”524
Although we have previously rooted for the distinction and separation of systemic arguments from teleological arguments, there are some arguments from analogy which have a closer relationship to teleological arguments than other systemic arguments. Here we must once more refer to the theory of legal argumentation byAlexy, wheresystematic argumentswere presented as part of the “Canons of Interpretation” and thus part of external justification of judicial decisions. According to Alexy, such arguments refer to bothlogical andteleological relation of a norm to other norms, goals, and principles.525 In the latter case, one could make the case that systemic arguments are quite close to teleological arguments. It is, however, suggested that the line is not crossed all the way to the side of teleological arguments, as the assessment of theresemblance of the objectives of two types of fields of law, for instance, is only the pre-condition of proceeding in the sequences of the logic of sedes materiae: if a provision in another field of law or directiveshares the same (or most of the) objectives with the law in which the applicable provision is situated, then this can be used as a systemic argument for choosing that provision in the process of reasoning from analogy. However, the logic ofsedes materiae once again reminds us that we should first try to use arguments which refer to the logical relation of norms before proceeding into the teleological relation.
524 Sherwin. 1999. 1186.
525 Alexy. 1989. 240.