ANALOGY, WEIGHING, AND DEDUCTION IN THE STRUCTURE OF THE FOLLOWING PRECEDENT

Abstract

Methodological features of justification of judicial decisions in the context of precedential law are often characterized through the use of the notion of “reasoning by analogy” (or “analogical argumentation”) usually represented as a particular method of the application of a law which is distinctive for precedents. In its turn, deductive logic is considered as a basic tool of application of statutes, and the procedure of weighing is taken to represent the specificity of application of constitution as a source of permanently conflicting legal norms of the utmost level of abstraction. The rigor of this “theory of a special method” makes many scholars seek a clarification of the structure of the following precedent, which would be without the use of notions of deduction and weighing. However, this approach has proven unavailing: it is generally accepted that the notion of “reasoning by analogy” still remains too vague and mysterious. This paper tries to give a primary analysis of the structure of the following precedent from the other side, under the premise of the methodological universality of the process of application of the law. The “open texture” theory advanced by H. L. A. Hart is the cornerstone for this analysis. The author comes to the conclusion that the analytical scheme of following precedent resulting from the reconstruction of this intellective procedure consists of a sequence of three different mental operations, one of which is appropriate to designate as “analogy”, though bearing polysemy of the term in mind. These basic operations — analogy, weighing, and deduction — are effected in the course of application of any legal norm, regardless of its source. On the basis of the inquiry’s findings, the author outlines the possible further development of the proposed approach.