Download 9.2 Legal Reasoning

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The English ancestry of the American and
Canadian legal systems means that many
legal arguments are analogical in nature
because the English system depends upon
precedent.
Requirement of precedent: similar cases must
be decided similarly
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Judges used to render laws directly
(producing common law)
Today, many of our laws are statutes,
produced not by judges but by legislative
bodies, codified in statute books, and
periodically revised
However, the requirement of precedent still
applies
Legal arguments largely depend on a similarity
between the case at hand and an earlier case
that sets a precedent for a legal decision
Analogical reasoning:
Earlier case X is similar to case Y
In case X, it was ruled that R
Therefore, it should be ruled that R in case Y as
well
Differences between legal and other forms of
analogical reasoning:
◦ In law, the clarity of simple analogies is rarely
found. Modes of similarity between cases are often
the result of highly creative thinking by lawyers and
judges and the relevance of these similarities to the
proposed conclusion is often debatable.
◦ Primary analogues in law (earlier cases) do not all
have equal weight. Federal courts are separate from
state courts and both state and federal systems
have several levels.
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Sometimes lawyers and judges are confronted
with cases lacking a clear precedent, known
as cases of first impression.
◦ Attempting to resolve them by appealing to
analogous instances involves even more creativity
than when dealing with normal cases.
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Moral reasoning also often draws on
arguments from analogy.
In attempting to support a moral position, the
arguer may appeal to an argument from
analogy by looking at our judgments about
similar cases.
◦ Example: JJ Thomson’s violinist thought experiment
The same rules for evaluating general
arguments from analogy apply to evaluating
moral arguments – though it is often quite
difficult to determine whether something is a
relevant similarity or disanalogy between cases.
Whether something counts for the sake of the
argument typically depends on underlying
ethical principles that apply or fail to apply
across cases.
The book has an example of moral reasoning
and analogies in the form of a dialogue:
“The Case of Fetal Abuse”