Legal Analogy as an Alternative to the Deductive Mode of Legal Reasoning

Author:Maciej Koszowski
Position:Jan Dlugosz University in Czestochowa, the Faculty of Philology and History
Pages:73-87
SUMMARY

This article demonstrates the inadequacy of legal deduction as a method that guarantees the certainty and predictability of law and its outcomes in concrete instances. Inter alia, it brings our attention to the far smaller role that the deductive pattern of inference plays in legal thought than one may suppose, since this pattern rather only a schematic illustration of the decisions that were... (see full summary)

 
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e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2017 e Institute for Migrant Rights Press
is article is connected to the research project the author carried out in the United
Kingdom as a guest researcher at Aberystwyth University as part of the Polish govern-
mental programme: “Mobilność Plus” [Mobility Plus].
LEGAL ANALOGY AS AN ALTERNATIVE
TO THE DEDUCTIVE MODE OF LEGAL
REASONING
Maciej Koszowski
Jan Długosz University in Częstochowa, the Faculty of Philology and History
E-mail: negotium@op.pl
is article demonstrates the inadequacy of legal deduction as a method that
guarantees the certainty and predictability of law and its outcomes in concrete
instances. Inter alia, it brings our attention to the far smaller role that the deduc-
tive pattern of inference plays in legal thought than one may suppose, since this
pattern rather only a schematic illustration of the decisions that were previously
made by recourse to the mental operations of a non-logical nature. In return,
as an alternative, legal analogy by which it is understood a mode of thinking
which enables the reasoners to take into account a mass of dierent factors that
are traditionally deemed to be relevant for legal thought and decision-making
is proered.
Keywords: Jurisprudence, Formalism, Positivism, Analogical Reasoning, Legal Argu-
mentation, Legal Inference.

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