Similarity, precedent and argument from analogy

In this paper, it is shown (1) that there are two schemes for argument from analogy that seem to be competitors but are not, (2) how one of them is based on a distinctive type of similarity premise, (3) how to analyze the notion of similarity using story schemes illustrated by some cases, (4) how arguments from precedent are based on arguments from analogy, and in many instances arguments from classification, and (5) that when similarity is defined by means of episode schemes, we can get a clearer idea of how it integrates with the use of argument from classification and argument from precedent in case-based reasoning by using a dialogue structure

Arguments Whose Strength Depends on Continuous Variation

Both the traditional Aristotelian and modern symbolic approaches to logic have seen logic in terms of discrete symbol processing. Yet there are several kinds of argument whose validity depends on some topological notion of continuous variation, which is not well captured by discrete symbols. Examples include extrapolation and slippery slope arguments, sorites, fuzzy logic, and those involving closeness of possible worlds. It is argued that the natural first attempts to analyze these notions and explain their relation to reasoning fail, so that ignorance of their nature is profound

Metaphysics and Law

The dichotomy between questions of fact and questions of law serves as a starting point for the following discussion of the nature of legal reasoning. In the course of the dialogue the author notes similarities and dissimilarities between legal reasoning and philosophical and mathematical reasoning. In the end we are left with a clearer insight into the distinctive features of the adjudicative process

Metaphysics and Law

The dichotomy between questions of fact and questions of law serves as a starting point for the following discussion of the nature of legal reasoning. In the course of the dialogue the author notes similarities and dissimilarities between legal reasoning and philosophical and mathematical reasoning. In the end we are left with a clearer insight into the distinctive features of the adjudicative process

Analogical Reasoning

This chapter from our book Legal Writing in Context aims to demystify analogical reasoning for law students

A plea for a modal realist epistemology

David Lewis’s genuine modal realism postulates the existence of concrete possible worlds that are spatio-temporally discontinuous with the concrete world we inhabit. How, then, can we have modal knowledge? How can we know that there are possible worlds and how can we know the characters of those worlds

Asymmetric Empirical Similarity

The paper offers a formal model of analogical legal reasoning and takes the model to data. Under the model, the outcome of a new case is a weighted average of the outcomes of prior cases. The weights capture precedential influence and depend on fact similarity (distance in fact space) and precedential authority (position in the judicial hierarchy). The empirical analysis suggests that the model is a plausible model for the time series of U.S. maritime salvage cases. Moreover, the results evince that prior cases decided by inferior courts have less influence than prior cases decided by superior courts

The Camel's Nose Is in the Tent: Rules, Theories, and Slippery Slopes

Slippery slopes have been the topic of a spate of recent literature. In this Article, the authors provide a general theory for understanding and evaluating slippery slope arguments (SSAs) and their associated slippery slope events (SSEs). The central feature of the theory is a structure of discussion within which all arguments take place. The structure is multi-layered, consisting of decisions, rules, theories, and research programs. Each layer influences and shapes the layer beneath: rules influence decisions, theories influence the choice of rules, and research programs influence the choice of theories. In this structure, SSAs take the form of meta-arguments, as they purport to predict the future development of arguments in the structure. Evaluating such arguments requires having knowledge of the specific content of the structure of discussion itself. The Article then presents four viable types of slippery slope argument, draws attention to four different factors that (other things equal) tend to increase the likelihood of slippery slopes, and explores a variety of strategies for coping with slippery slopes.SLIPPERY SLOPE ARGUMENTS; STRUCTURE OF DISCUSSION (ARGUMENT); RULES; UNINTENDED CONSEQUENCES

The Logic of Legal Reasoning in Religious and Non-Religious Cultures: The Case of Islamic Law and the Common Law

It is only reasonable to assume that dissimilar legal systems possess dissimilar patterns of legal reasoning. Inasmuch as two legal systems differ in their structure and function, they also differ in the types of arguments they employ in their service. It may well be argued that law is, in the final analysis, the product of the premises and methods from and through which it is derived. Two such legal systems which display a vast difference in their overall structure and function are Islamic law and the common law. This paper proposes to shed some light on the logic of legal reasoning in both orders as well as to analyze the reasons and background which give rise to differences and similarities in their methods of reasoning. This will be done with the intent of bringing out some of the major factors which operate on the level of the judicial process and which contribute to the creation of differences in legal orders. The focal comparison in such a study must be the relationship between the logic of the law and the amount of emphasis given to social change in secular and religious cultures