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

• Jurisdiction: Derecho Internacional
• Date: 01 January 2017

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.