Analogical reasoning in law

목차 (Table of Contents)

• CONTENTS
• Part Ⅰ Theoretically Possible Approaches to Legal Analogy
• Chapter One : Introductory Remarks = 2
• 1 The enormous appeal to and “unbeatable” merits of legal analogy = 2
• 2 Symptoms of self-doubt = 10
• 3 Mutual accusations amongst the protagonists of legal analogy = 11
• 4 Skepticism and the condemnation of analogical reasoning in law = 15
• Chapter Two : Some Mistaken Attempts Made in order to Capture the Very Gist of Legal Analogy = 23
• 1 The aim of the chapter = 23
• 2.1 A number of “logical” or “semantic” similarities and dissimilarities between the cases being compared = 24
• 2.2 Critical response = 26
• 3.1 The outcome desired in the case at hand = 30
• 3.2 Critical response = 32
• 4.1 Natural similarity = 33
• 4.2 Critical response = 33
• 5.1 Rule-based approach = 34
• 5.1.1 Analogical rule = 36
• 5.1.2 Dworkinian theory = 40
• 5.1.3 Brewer’s conception = 41
• 5.1.4 Extension of one of the operative rules = 42
• 5.2 Critical response = 43
• 6.1 Similarity of the facts in light of rationale that argues for a given legal outcome: the mature rational approach = 49
• 6.1.1 Rationale = 55
• 6.1.2 Relevant facts = 56
• 6.1.3 Analogical conclusion = 57
• 6.2 Critical response = 57
• Chapter Three : The Intuitive Model of Legal Analogy = 63
• 1 The very idea = 63
• 2 Intuition: does it really exist? = 66
• 3 The internal human ability to generalize = 66
• 4 Intuitive versus rational thinking = 68
• 4.1 Characteristics of intuitive thinking = 70
• 4.2 The characteristics of rational thinking = 79
• 4.3 Comparison of rational thinking with intuitive thinking = 81
• 4.4 The interrelation between rational and intuitive thinking =85
• 5 Presence of intuitive thinking in legal analogy = 87
• 6 How to enhance the quality of intuitive analogy = 100
• 6.1 Training = 100
• 6.2 The testing of analogical conclusions = 104
• 6.3 The receiving of non-local information = 106
• 6.4 Facilitating access to intuitive thinking = 107
• 7 Circumstances in which an outcome of intuitive legal analogy can be dubious = 107
• Chapter Four : The Perks of Basing Analogy on Intuitive Thinking = 108
• 1 Revealing why the conclusions of legal analogy, despite being “non-logical,” may be accurate and trustworthy = 108
• 2 Resolving the frequently occurring problem of the competition of analogies = 110
• 3 Being fast, frugal and effortless = 112
• 4 Doing well when information is incomplete and amount of cognitive resources is scarce = 114
• 5 Accounting for people being more prone to draw certain analogies than others = 114
• 6 Explaining why the analogical conclusions of a well-renowned lawyer are better than those which are reached by the novice or the laymen = 115
• 7 Answering the question of why some good legal decisions made through analogy were difficult to justify by the judges who are their authors and why extracts from judicial opinions should not be equated with the ratio decidendi or holding of a precedential case = 115
• 8 Clarifying the issue of how people seek potential analogies = 116
• 9 Allowing legal analogy to remain the reasoning from the particular (single) to the particular (single) = 118
• 10 Shedding light on three unique illogical features of analogical reasoning: non-transivity, the lack of symmetry and not being time-resistant = 125
• 11Causing no problem with the argument from disanalogy = 126
• 12 Corresponding to the goal- and purpose-driven nature of analogy = 128
• 13 Explaining why legal analogy can be conservative and at the same time a productive kind of reasoning = 129
• 14 Accounting for the rule that everything matters = 129
• 15 Enabling the ascription of a different legal consequence to the case at hand than the legal consequence possessed by the case compared with it = 129
• 16 Elucidating why the outcome of legal analogy can be at odds with what is morally right = 130
• 17 Demonstrating why analogical reasoning is conclusive and nonarbitrary or haphazard = 131
• Chapter Five : A Coda = 134
• 1 Is intuitive analogy reasoning at all? = 134
• 2 Some remarks on normative and descriptive attitudes = 135
• Conclusions = 139
• Part Ⅱ Some Other Peculiar Features of Legal Analogy
• Introduction : What it Concerns = 142
• Chapter One : The Premises of Legal Analogy = 143
• 1 The first premise: a fixed point = 143
• 1.1 The fixed point in non-legal matters = 146
• 1.2 The fixed point in legal matters = 147
• 1.2.1 Legal decisions made in cases decided in the past = 148
• 1.2.2 The instances which are undoubtedly covered by precedential and statutory rules = 150
• 1.2.3 Other cases whose legal consequences are known = 154
• 1.3. The second premise: the case at hand = 155
• 1.4 An exact shape and number of a fixed point and the case at hand = 158
• Chapter Two : The Structure (Scheme) of Legal Analogy = 161
• 1 General definition = 161
• 2 The original scheme (structure) = 163
• 3 The structure of intuitive analogy = 165
• 4 The structure of analogy that is premised upon the counting of similarities and dissimilarities = 167
• 5 The structure of the outcome-desired approach to analogy = 167
• 6 The structure of rule-based analogy = 168
• 7 The structure of rational analogy = 169
• Chapter Three : Ways and Scope of Application of Analogical Reasoning in the Legal Domain = 170
• 1 Analogy as a method of applying precedents = 170
• 2 Analogy as a method of applying legal rules = 171
• 3 Analogy as a measure to defeat legal rules: distinguishing precedents and filling up the gaps that are contra legem = 173
• 4 Ejusdem generis canon of statutory construction, pertinent application of law and notions that are only typological = 174
• 5 Dealing with cases of first impression and gaps extra legem = 176
• 6 The role of analogy in comparative arguments in law, an argumentum a fortiori, resolving conflicts between legal rules, determining obsolescence of precedents or statutory provisions and finding legislative intention = 177
• 7 Reflective equilibrium = 179
• 8 Comparison of two rules (legal institutions) = 180
• 9 Permission, obligation and prohibition on making use of analogy = 181
• 10 Differentiating analogy from extensive (expansive) interpretation and its relation to the certainty and predictability of law = 183
• 11 Terminology = 187
• Chapter Four : How to Make Legal Analogy Look Stronger or Weaker = 192
• 1 Authority of fixed point = 192
• 2 Number of fixed points = 193
• 3 Language of comparison = 193
• 4 The “causal” character of the relation between common facts and the legal consequence that is attached to the case at hand = 193
• 5 The materials that are taken into account = 194
• 6 Trying to make a new association in the minds of the members of an audience = 194
• 7 Being first with adducing the analogy = 195
• 8 Factors that may weaken the analogical conclusion = 195
• 8.1 Disagreement with the fixed point = 195
• 8.2 Adducing counterexamples (counter-analogies) = 196
• Conclusions = 197
• Bibliography = 200
• Subject Index = 212
• Index of Names = 217