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1 results

  • 2 - Rule-Based Legal Reasoning

  • Melvin A. Eisenberg, University of California, Berkeley
  • Book:
    Legal Reasoning
    Published online:
    22 September 2022
    Print publication:
    29 September 2022, pp 5-12

  • Summary

    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.