Archiwum
Filozofii Prawa
i Filozofii Społecznej

Journal of the Polish Section of IVR (ISSN:2082-3304)

IVR
  • General info
  • Aim & scope
  • News
  • Issues
    • Current Issue
    • Past Issues
  • Editorial board
    • Board Members
    • Reviewers
  • For authors / Ethics
  • Contact
  • Polski

Chaïm Perelman and Lucie Olbrechts-Tyteca’s Account of Analogy Applied to Law: the Proportional Model of Analogical Legal Reasoning

Dr Maciej Koszowski

Jan Długosz University in Częstochowa


English abstract:
In this paper, the author has undertaken an attempt to adjust Chaïm Perelman and Lucie Olbrechts-Tyteca’s conception of analogy to the province of law. He thus sketches out a pertinent scheme of legal analogy based upon the similarity of proportions and indulges in a consideration of the merits and demerits of such a proposition. To this aim, as the proportions that are compared in such an account of analogy, the relations between the facts of the cases and their legal outcomes were chosen: one such outcome already known and one tentatively posited. Finally, however, the author’s analyses lead to the conclusion that despite its considerable theoretical attractiveness and some mystical charm, legal analogy consisting of the comparison of two proportions is either quite similar to orthodox approaches to analogical reasoning in law or too obscure for one to employ it credibly in the legal setting. In consequence, until its proponents have elucidated the workings of proportional analogy in more detail, the potential use of such a form of analogy in the province of law does not seem promising and cannot be recommended.

Language: English

Keywords: proportion, proportional, proportionality, analogy, legal, Chaïm Perelman, Lucie Olbrechts-Tyteca, account, law, reasoning, approach, logic, apply, analogically

Published: Number 2(13)/2016, pp. 5-13.

DOI: https://doi.org/10.36280/AFPiFS.2016.2.5

Download file: Download
Number of downloads:
470

 

Filed Under: Articles Tagged With: analogy, Chaïm Perelman, legal reasoning, Lucie Olbrechts-Tyteca, Maciej Koszowski, proportionality

Categories

  • Articles
  • Editorial
  • In Memoriam
  • News
  • Reports
  • Reviews and discussions

Keywords

Andrei Marmor rule of law indigenous people law-maiking linguistic corpora legal responsibility normative and methodological debate Polish Supreme Court Aleksandra Samonek judicial impartiality religious freedom guilt normative systems generative linguistics deontological ethics strategic speech common good application of law language of norms the input view Russian theory of law prototype theory authoritarianism legal dogmatics Herbert L. A. Hart Marcin Matczak corpus linguistics legal petrification of the past Sławomir Drelich Stanisław Czepita constitutional dictatorship politics of time individual guilt Martin Krygier personalistic introspection national interest letter of law myth TRIPS rule of recognition derivative concept of legal interpretation sincerity principle judicial argumentation US case law Poland’s constitutional crisis difference original position Filip Rakoczy Michał Pełka Adrian Zając

Copyright © 2021 Polska Sekcja Międzynarodowego Stowarzyszenia Filozofii Prawa i Filozofii Społecznej IVR | Administrator strony: Dawid Milczarek

Ta strona używa plików cookies. Zakładamy, że wyrażają Państwo na to zgodę, ale mogą Państwo także wyłączyć pliki cookies w Ustawieniach. //
This website uses cookies to improve your experience. We'll assume you're ok with this, but you can opt-out if you wish. (Zob. więcej // Read more) Ustawienia // SettingsZGODA // ACCEPT

Privacy Overview

This website uses cookies to improve your experience while you navigate through the website. Out of these cookies, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. We also use third-party cookies that help us analyze and understand how you use this website. These cookies will be stored in your browser only with your consent. You also have the option to opt-out of these cookies. But opting out of some of these cookies may have an effect on your browsing experience.
Privacy Overview

This website uses cookies to improve your experience while you navigate through the website. Out of these cookies, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. We also use third-party cookies that help us analyze and understand how you use this website. These cookies will be stored in your browser only with your consent. You also have the option to opt-out of these cookies. But opting out of some of these cookies may have an effect on your browsing experience.

Necessary Always Enabled

Necessary cookies are absolutely essential for the website to function properly. This category only includes cookies that ensures basic functionalities and security features of the website. These cookies do not store any personal information.

Non-necessary

Any cookies that may not be particularly necessary for the website to function and is used specifically to collect user personal data via analytics, ads, other embedded contents are termed as non-necessary cookies. It is mandatory to procure user consent prior to running these cookies on your website.