The Logic of Analogy in the Law |
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Authors: | Email author" target="_blank">Jaap?HageEmail author |
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Institution: | (1) Department of Metajuruduca, University of Maastricht, P. O. Box 616, 6200, MD, Maastricht, The Netherlands |
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Abstract: | This paper deals with two issues in the field of reasoning by analogy in the law. The one issue is whether there exists such
a thing as analogous rule application, or whether there is only the ‘normal’ application of a broadened rule. It is argued
that if rules, as the entities made by a legislator, are distinguished from generalised solutions for cases, the idea of analogous
application of rules makes sense. It is also shown how the so-called ‘reason-based model of rule application’, in contrast
to the traditional modus ponens or subsumption model, makes it easy to give a logical account of analogous rule application.
The other issue is how to argue logically about whether two cases are sufficiently similar to adopt the outcome of the one
case for the other case. Section 3 provides a general logical model to establish this. The model is based on the comparison
of the reasons for and against a particular solution in the two cases. |
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Keywords: | analogical rule application case comparison nature of rules |
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