The alternative account of analogical reasoning detailed in this study reverses the orientation or direction of fit between what we are schooled to treat as the “source” and “target” in analogical reasoning.
Author
Shivprasad Swaminathan, Professor & Assistant Dean, Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana, India
Summary
Standard accounts of analogy in law picture it as reasoning from the past case (source) to a solution in the case at hand (target). This article argues that the normatively constraining invocations of similarity or likeness presupposed by standard accounts do not obtain.
It then sketches an alternative account based on Michael Polanyi’s idea of polycentricity (not Lon Fuller’s) on which the orientation of analogical reasoning is reversed.
Polycentricity is an idea due to the polymath Michael Polanyi which he gleaned, to a significant extent, from the workings of the common law. In abbreviated form, the idea comes to this. A polycentric system of decision-making (such as the common law) involves a number of decision makers who go about their task of making decisions by anticipating what is likely to pass muster with the community.
And having thus arrived at a decision, then seek to persuade the community of decision-makers by justifying the decision at hand by falling back on previously decided cases. Polycentric decision-making can thus be understood as a two-pronged process. The first prong is epistemological, involving as it does, discovery, while the second prong is rhetorical since it involves justification of the decision.
The alternative account of analogical reasoning detailed in this study reverses the orientation or direction of fit between what we are schooled to treat as the “source” and “target” in analogical reasoning.
A past case (here “target”) is picked and framed in certain ways to persuade the interlocutor about the decision independently reached in the present case (here “source”) through the guidance of tacit knowledge (involving anticipation of what is likely to pass muster with the legal community) which normatively constrains the process.
Published in: The Cambridge Law Journal
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