Law’s Enterprise: Argumentation Schemes & Legal Analogy

Reasoning by legal analogy has been described as mystical, reframed by skeptics using the deductive syllogism, and called “no kind of reasoning at all” by Judge Posner. Arguments by legal analogy happen every day in courtrooms, law offices, and law school classrooms, and they are the essence of what we mean when we talk of thinking like a lawyer. But we have no productive and normative theory for creating and evaluating them. Entries in the debate over the last twenty-five years by Professors Sunstein, Schauer, Brewer, Weinreb, and others leave us at an impasse: the “skeptics” are too focused on the rational force offered by the deductive syllogism when they should attend to the kinds of arguments that can provide premises for deduction—exactly the work that legal analogy accomplishes. Meanwhile, the “mystics” expect us to accept legal analogy without an account of how to discipline it. Using the argumentation schemes and critical questions of informal logic, this article constructs a theory grounded in philosophy, but kitted out for action. The theory is not skeptic or mystic, but dynamic

Law\u27s Enterprise: Argumentation Schemes & Legal Analogy

Reasoning by legal analogy has been described as mystical, reframed by skeptics using the deductive syllogism, and called “no kind of reasoning at all” by Judge Posner. Arguments by legal analogy happen every day in courtrooms, law offices, and law-school classrooms, and they are the essence of what we mean when we talk of thinking like a lawyer. But we have no productive and normative theory for creating and evaluating them. Entries in the debate over the last 25 years by Professors Sunstein, Schauer, Brewer, Weinreb, and others leave us at an impasse: The ‘skeptics’ are too focused on the rational force offered by the deductive syllogism when they should attend to the kinds of arguments that can provide premises for deduction—exactly the work that legal analogy does. Meanwhile, the ‘mystics’ expect us to accept legal analogy without an account of how to discipline it. Using the argumentation schemes and critical questions of informal logic, this article constructs a theory grounded in philosophy but kitted out for action. Not skeptic or mystic, it is dynamic

Cogitator : a parallel, fuzzy, database-driven expert system

The quest to build anthropomorphic machines has led researchers to focus on knowledge and the manipulation thereof. Recently, the expert system was proposed as a solution, working well in small, well understood domains. However these initial attempts highlighted the tedious process associated with building systems to display intelligence, the most notable being the Knowledge Acquisition Bottleneck. Attempts to circumvent this problem have led researchers to propose the use of machine learning databases as a source of knowledge. Attempts to utilise databases as sources of knowledge has led to the development Database-Driven Expert Systems. Furthermore, it has been ascertained that a requisite for intelligent systems is powerful computation. In response to these problems and proposals, a new type of database-driven expert system, Cogitator is proposed. It is shown to circumvent the Knowledge Acquisition Bottleneck and posess many other advantages over both traditional expert systems and connectionist systems, whilst having non-serious disadvantages.KMBT_22

Legal Reasoning

For more than a century, lawyers have written about legal reasoning, and the flow of books and articles describing, analyzing, and reformulating the topic continues unabated. The volume and persistence of this unrelenting discussion (Simon, 1998, p. 4) suggests that there is no solid consensus about what legal reasoning is. Legal scholars have a tenacious intuition - or at least a strong hope - that legal reasoning is distinctive, that it is not the same as logic, or scientific reasoning, or ordinary decision making, and there have been dozens of attempts to describe what it is that sets it apart from these other forms of thinking. These attempts generate criticism, the critics devise new formulations that generate further criticism, and the process continues. In this chapter, I describe the primary forms of legal reasoning, the most important schools of thought about legal reasoning, and some of the major differences between legal reasoning and scientific reasoning