Abstract:
Proponents of strict rule-based theories of judicial reasoning in common-law systems have offered a number of criticisms of analogical alternatives. I explain these criticisms and show that at best they apply equally well to rule-based theories. Further, I show how the analogical theories explain a feature of judicial common-law reasoning — the practice of distinguishing cases — that rule-based theories ignore. Finally, I show that reason-based, analogical theories of common-law judicial reasoning, such as those offered by John Horty and Grant Lamond, offer especially strong rejoinders to the rule-theorist objections and persuasive accounts of distinguishing.
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Adam Rigoni, ‘Common-law judicial reasoning and analogy’. Legal Theory, Volume 20, Issue 2, June 2014, pp 133-156. Published online: 27 June 2014.
First posted 2014-08-08 06:08:31
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