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The Model of Precedent Based upon Analogical Reasoning

Dr Maciej Koszowski

Silesian University of Technology

English abstract: Apart from the concise presentation of the rule-based model of binding judicial precedent, this article describes two basic accounts of analogical reasoning in precedential law. The first account has been named: the factual model and the second: the rational model. This terminology was adopted due to the fact that the judgment of similarity within the factual model is deemed to be a direct result of the very facts of the cases being compared, or of the unfathomed mystical workings of human intuition (emotions), or the outcome desired for the case at hand. The rational model, in turn, is based upon the notion of precedential reasons and casual facts, i.e. the facts that are relevant in the light of such reasons. Dependence upon these two notions makes the rational model more predictable and explicable. In certain circumstances, however, analogy to proceeds needs therein some additional factors which do not stem from the gist of that model. The factual model, unpredictable though it may seem to be, is faster and apt to generate just, or socially desirable, conclusions, especially when utilized by a person of a great legal knowledge and experience.

Keywords: judicial precedent, analogical reasoning, factual model, rational model

Language: Polish

Published: Number 2(9)/2014, pp. 43-65

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Number of downloads: 198

Filed Under: Articles Tagged With: analogical reasoning, factual model, judicial precedent, rational model

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Keywords

linguistic corpora TRIPS interest of the state Grundnorm legal certainty Carlos Cossio images Mateusz Zeifert Leszek Kołakowski scientific study of law myth dualism of law legal gaps juristic presumption idealism derivative personal meaning cognitive science modernity communication inference to the best explanation normative standard philosophy of law memory law David DeGrazia professional roles of lawyer Michał Sopiński temporal nature of social systems courts new technology law popular constitutionalism societal constitutionalism Maciej Zieliński public morality constitutional values direct application of the constitution claims to law sense of conventional acts in law philosophy of action realistic utopia situationalist concept of general clauses rules of interpretation justification of punishment Leon Petrażycki constitutional consciousness qualitative content analysis deontological ethics dogmatic anthropology legal gap distrust

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