TY - JOUR

T1 - A New Model of Reasoning by Analogy

AU - Dothan, Shai

PY - 2023

Y1 - 2023

N2 - The paper suggests a novel methodology for determining the state of legal doctrine on a particular issue by legal scholars. This methodology is inspired by the philosophical field of phenomenology. In particular, the tool of eidetic reduction developed by Edmund Husserl is applied to reach inter-subjectively valid assessments of doctrine. The methodology developed here argues that scholars who wish to discover legal doctrine on a particular issue need to first define general paradigms that explain the relevant legal field. Then, they should develop a hypothesis about the law on the particular issue that concurs with the essential qualities of all these paradigms. Finally, to determine if a hypothesis about the content of the law should be accepted or rejected, it must be checked against legal sources that often include judgments. Reasoning by analogy should be used to learn from judgments with the same policy implications as the doctrine suggested by the hypothesis. The paper offers several heuristics—demonstrated with examples from international law—that can be used to find judgments that have the same policy implications without determining conclusively what these implications are.

AB - The paper suggests a novel methodology for determining the state of legal doctrine on a particular issue by legal scholars. This methodology is inspired by the philosophical field of phenomenology. In particular, the tool of eidetic reduction developed by Edmund Husserl is applied to reach inter-subjectively valid assessments of doctrine. The methodology developed here argues that scholars who wish to discover legal doctrine on a particular issue need to first define general paradigms that explain the relevant legal field. Then, they should develop a hypothesis about the law on the particular issue that concurs with the essential qualities of all these paradigms. Finally, to determine if a hypothesis about the content of the law should be accepted or rejected, it must be checked against legal sources that often include judgments. Reasoning by analogy should be used to learn from judgments with the same policy implications as the doctrine suggested by the hypothesis. The paper offers several heuristics—demonstrated with examples from international law—that can be used to find judgments that have the same policy implications without determining conclusively what these implications are.

U2 - 10.1007/s42439-023-00074-z

DO - 10.1007/s42439-023-00074-z

M3 - Journal article

VL - 5

SP - 33

EP - 58

JO - Jus Cogens

JF - Jus Cogens

SN - 2524-3977

IS - 1

ER -