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E-book Analogy and Exemplary Reasoning in Legal Discourse

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Penilaian

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Why at all deviate from literal meaning in the law by appealing to analogy, to precedent instead of clear legal rules, to paradigm instead of principle, and to paradoxes of metaphor instead of literal meaning and truth?However we understand absurdity, the textual approach gives priority to the language used in the text in its ordinary sense over other evidence of the author’s intention. The textual approach is sometimes attacked by critics, who call it ‘literalism’, going by the letter. But what is the point of putting a statute, contract, treaty, or will into words unless those words are to be treated as binding?Thus Honoré (1995, p. 90). So go for clear rules in the f irst place one would think, avoiding absurdity in their applications. Though this is still good advice at times, no legal system exclusively consisting of literally applicable rules has yet been devised. Reasons why this won’t change any time soon have been widely publicized of course, at least in the philosophy of law.So analogy, precedent, paradigm, metaphor and related concepts un-questionably play a major role in legal and non-legal reasoning. It is even contended (for example by Weinreb, in 2005) that all legal reasoning is analogical, in the absence of literal identity of legally relevant facts – and thus of clear rules applicable to standard situations. But what are relevant and what are irrelevant similarities and differences? Everything resembles everything in an inf inite number of respects (see Hampshire, 1959, among others).This may be no major issue concerning pet train travellers. Many more analogies in civil law and in administrative law may be relatively harmless or even quite useful as well, however unanalysed in adjudication and in other applications. Some analogies, though, may have far-reaching symbolic and material consequences, like legally treating pregnancy as an illness, however well-meant from gender-neutral points of view. In criminal law the appeal to misconceived analogy can lead to really wrongful and serious harm in the name of the law, by unjustly widening the scope of codif ied crimes. Are such convicts analogous to soldiers who lose their life in defence of their country, like: they did not deserve it, but legal procedure is a thing to die for, just like the country itself is? The rhetoric of such analogical argument may be quite effective, without any clear guarantee concerning argumentative content.The same holds good for appeal to precedent, logically related to analogy as it is, at least in terms of relevant and irrelevant similarities. In fact, in adjudication, precedent is explicitly invoked much more often than analogy. Thus a court can order punitive damages to be paid to a victim of verbal offence without explicit motivation. Later victims of verbal offence may appeal to this decision. But then the cases brought by such plaintiffs could be different in relevant respects. Thus, there may have been nothing like public offence with any third-party effect against such plaintiffs, and/or such plaintiffs may have wrongly elicited verbal offence against them. So again: what may be relevant similarities and relevant differences?It may also be contended that the original decision appealed to by way of precedent is wrong and ought not to be repeated, according to the adage: ‘two wrongs don’t make one right’. But isn’t this at odds with deep-seated notions of equality and legal security? Imagine one twin objecting to sup-posedly receiving less pocket money ‘because the other twin previously got more’. Surely such a precedent must be decisive in treating both twins equally? Or ought the overpaid twin to be restored to a rightful position, by paying less next time or otherwise?Paradigmatic reasoning is another issue of relevant similarities and dif-ferences: what is it that a paradigm stands for? Capital punishment against the innocent may be a paradigm of off icial injustice, but then the paradigm does not by itself exhaustively explain what it is a paradigm of. The same holds good for paradigmatic court decisions or even of paradigmatic judges or role models for their colleagues to imitate – in what respects?

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Ketersediaan

Informasi Detail

Judul Seri

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No. Panggil

340 AMA a

Penerbit

Amsterdam : Amsterdam University Press., 2018

Deskripsi Fisik

197 hlm

Bahasa

English

ISBN/ISSN

9789462985902

Klasifikasi

340

Tipe Isi

text

Tipe Media

computer

Tipe Pembawa

online resource

Edisi

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Subjek

Law

Info Detail Spesifik

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Pernyataan Tanggungjawab

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Versi lain/terkait

Lampiran Berkas

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