This thesis develops a novel account of judicial common-law reasoning by precedent. If a new case is relevantly similar to a precedent case, judges are generally bound to follow the decision made in the precedent case. Important differences between cases can justify deciding the new case differently. The literature offers two main approaches to reasoning by precedent. According to rule-based-approaches, every case is decided by either following an existing rule or establishing a new one. I show that rule-based approaches are untenable. Analogy-based approaches claim that similarities and differences between two cases are determined through reasoning by analogy. These approaches are problematic because some similarity or difference can always be found between two cases. Accounts suggested so far cannot explain how precedents can provide significant guidance to judges. My dissertation salvages analogy-based approaches by supplementing them with insights from argumentation theory. Analogies contain a figurative part that is used to make someone see the analogy‘s literal part in a new way. An arguer can manipulate her interlocutor‘s perception of the literal part through the way she describes the figurative part by rhetorically drawing attention to those similarities that she considers relevant. Arguments by analogy use this to convince interlocutors of conclusions about the literal part. I propose to see judges in the role of interlocutors, evaluating arguments by precedent. The opinion that documents the precedent case from the point of view of the former judge is the figurative part of an analogy. The literal part is the new case. They form an analogical argument for repeating the precedent decision. The judge evaluates the argument by considering a number of critical questions. If all the critical questions can be answered, the precedent is applicable and must be followed. Otherwise, the precedent is either not applicable or has to be distinguished. / Dissertation / Doctor of Philosophy (PhD) / This thesis describes reasoning by precedent in the common law. I discuss two important approaches to how reasoning by precedent works, rule-based theories and analogy-based theories. I reject rule-based theories as untenable. I describe the main problem analogy-based theories face: To show that precedents can constrain judicial reasoning so that judges cannot decide cases according to their own normative commitments. I use insights from psychological research into analogical reasoning and from argumentation theory to develop a new analogy-based account. I suggest that judges should be seen as interlocutors evaluating an argument by precedent. This argument contains an analogy between precedent case and present case, and a rule stating that the precedent decision needs to be followed if precedent case and present case are legally the same. The judge needs to first understand the analogy under the application of the principle of charity, and then evaluate it using critical questions.
| Identifer | oai:union.ndltd.org:mcmaster.ca/oai:macsphere.mcmaster.ca:11375/20021 |
| Date | January 2016 |
| Creators | Stevens, Katharina |
| Contributors | Waluchow, Wil, Philosophy |
| Source Sets | McMaster University |
| Language | English |
| Detected Language | English |
| Type | Thesis |
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