Analogy Argumentation in Law: A Dialectical Perspective

Harm Kloosterhuis 

Erasmus School of Law; Erasmus University Rotterdam (EUR)
November 21, 2013

Abstract:      

In this paper I investigate the similarities between the dialectical procedure in the pragma-dialectical theory and dialectical procedures in AI and Law. I do this by focusing on one specific type of reasoning in law: analogy argumentation. I will argue that analogy argumentation is not only a heuristic for finding new premises, but also a part of the justification of legal decisions. The relevant criteria for the evaluation of analogy argumentation are not to be found at the logical level of inference, but at the procedural level of the discussion. I will proceed as follows. I start with an outline of Prakken's theory of argumentation frameworks and procedural models. Then, I will discuss Peczenik's analysis of analogy argumentation and try to combine it with the descriptive-normative research of MacCormick and Summers. Finally, I propose a systematization of the criteria for the evaluation of analogy argumentation within the framework of a pragma-dialectical notion of an argumentation scheme.

Number of Pages in PDF File: 12

Keywords: analogy argumentation in law, analogical reasoning in law, dialectical perspective

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2357945