Rozumowanie per analogiam w prawie precedensowym: dwa ujęcia analogii

Abstract

Apart for the concise presentation of the rule-based model of binding judicial precedent, the article describes two basic accounts of analogical reasoning in precedential law. The first account has been named “factual model” and the second “rational model”. This terminology was adopted due to the fact that the judgment of similarity within the factual model is deemed to be a direct result of the very facts of the cases being compared, or of the unfathomed mystical workings of human intuition (emotions) or the outcome desired for the case at hand. The rational model in turn is based upon the notion of precedential reasons and casual facts, which are the facts that are relevant in the light of such reasons. Dependence upon these two notions makes the rational model more predictable and explicable. In certain circumstances, however, analogy to proceeds needs here some additional factors which do not stem from the gist of this model. The factual model, unpredictable though it may seem to be, is faster and apt to provide us with just, or socially desirable, conclusions, especially when utilized by person of a great legal knowledge and experience. Two other possible accounts of analogical reasoning in precedential law, i.e. principle-based model and proportional model, have been rebutted. The reason is: a lack of analogical pattern of thinking involved and serious difficulties in its legal application respectively.