Analogy and value: A contribution to a non-skeptical theory of analogical argument in law (John Austin, H. L. A. Hart, Cass Sunstein, Scott Brewer, Ronald Dworkin).

摘要

I begin the dissertation by discussing some of the schools of skepticism about law ire general, and analogical reasoning in particular. The discussion of the skeptics shows what types of claims a non-skeptical theory of analogical argument would have to answer.; Skepticism about analogical reasoning arises from the difficulty of determining the criteria to be used to decide which of the similarities and differences between two things or states of affairs are relevant in a cogent analogical argument. The worry is that if such criteria cannot be found, then the relevance of the similarities and differences will in effect be determined by the values, interests, or psychologies of judges.; I discuss the traditional explanation given by legal philosophers, such as John Austin and H. L. A. Hart, as to why there are linguistic and social factors that make it impossible to create rules that uncontroversially apply to all cases that arise in a legal system. This discussion shows why it is that not all legal cases can be decided by the courts by way of deductive reasoning, and why the use of analogical argument is inevitable in law.; Next I examine two attempts to provide a non-skeptical account of analogical argument in law. These are the recent works by Cass Sunstein and Scott Brewer. However, I conclude that these two theorists fail to overcome the problems raised by skepticism about analogical reasoning.; Finally I set out my non-skeptical view of analogical argument. My approach is four-fold. First, I argue that the term "analogical reasoning" is ambiguous, and that we need to separate out the various types and uses of analogical reasoning. Second, I argue that Ronald Dworkin's theory of Law as Integrity can be used to determine the relevance of the similarities and differences used in cogent analogical argument. Third, I call for the elimination of rhetorical analogical argument. Fourth, I argue for higher standards of legal argument by suggesting that judges set out in their analogical arguments explicit premises stating what they take to be legally justified criteria for determining relevance.