Published online by Cambridge University Press: 22 September 2022
Legal reasoning in the common law is based on rules adopted in binding legal precedents or authoritative although not binding rules. Some commentators claim that legal reasoning is analogy-based rather than rule-based, but a simple reading of common law cases makes it evident that common law courts seldom reason by analogy. Furthermore, in an experiment in which eighty-four common law cases were selected at random, only three reasoned by analogy. The answer as to why common law courts seldom reason by analogy is simple: a court would never reason by analogy if a case is governed by a rule, and the common law is thick with rules. Some other commentators claim that legal reasoning is based on a similarity. This claim is also incorrect, partly for the same reason and partly because if a prior case is identical to the case to be decided it will almost certainly have laid down a rule that governs that case, and if a prior case is only loosely similar to a case to be decided a court would normally adopt a new rule, because in that case it would need to make its reasoning clear.
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