This chapter situates legal analogy at the crossroads of human cognition, interpretive theory, and normative justification. Drawing on research in cognitive science, the paper departs from the triadic mechanism—retrieval, alignment, and evaluation—that structures analogy-making in general cognition, in order to highlight the particular traits of legal analogy, that is, how legal systems cope with unforeseen cases through the controlled transfer of justificatory reasons. It then purports to evidence that theories of interpretation shape both the availability and the character of analogical reasoning. Divergent views about meaning, legislative intent, and the nature of legal norms produce different understandings not only of when analogy is at stake (or is permissible) but also of what counts as a legally relevant similarity. These interpretive frameworks also influence how gaps are identified and how sharply analogy can be distinguished from extensive interpretation. Upon exposing the three foundational problems of analogical reasoning – demarcation, non-redundancy, and justification – the paper adopts the inferential model of analogy as paradigm. The main conclusion is that legal analogy is neither the Scylla of a mysterious leap nor the Charybdis of a mechanical procedure, but rather a disciplined yet creative mode of reasoning that combines heuristics with balance of reasons while bridging the semantic, pragmatic, and inferential dimensions of legal reasoning.

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Legal Analogy: Competing Theories, Argumentative Structure and Justification

  • Pedro Moniz Lopes

摘要

This chapter situates legal analogy at the crossroads of human cognition, interpretive theory, and normative justification. Drawing on research in cognitive science, the paper departs from the triadic mechanism—retrieval, alignment, and evaluation—that structures analogy-making in general cognition, in order to highlight the particular traits of legal analogy, that is, how legal systems cope with unforeseen cases through the controlled transfer of justificatory reasons. It then purports to evidence that theories of interpretation shape both the availability and the character of analogical reasoning. Divergent views about meaning, legislative intent, and the nature of legal norms produce different understandings not only of when analogy is at stake (or is permissible) but also of what counts as a legally relevant similarity. These interpretive frameworks also influence how gaps are identified and how sharply analogy can be distinguished from extensive interpretation. Upon exposing the three foundational problems of analogical reasoning – demarcation, non-redundancy, and justification – the paper adopts the inferential model of analogy as paradigm. The main conclusion is that legal analogy is neither the Scylla of a mysterious leap nor the Charybdis of a mechanical procedure, but rather a disciplined yet creative mode of reasoning that combines heuristics with balance of reasons while bridging the semantic, pragmatic, and inferential dimensions of legal reasoning.