Analogical Reasoning and the Common Law

By

Anthony J. Fejfar, B.A., J.D., Esq., Coif

© Copyright 2009 by Anthony J. Fejfar

The Common Law method of developing Law involves a certain structure of case

analysis, combined with Analogical Reasoning. Legal Analysis follows the format

developed by Plato and Aristotle, which has become the basis for Scientific Method.

Case Analysis is based upon the three levels of Reality and Consciousness, which are,

Body, Mind, and Intellect/Spirit. The Lonerganian Cognitional Structure parallels this

as Experience, Understanding, Judgment and Reflection. This parallels the Case Method

of Analysis, which is Facts, Issue, and Holding or Judgment. The following Chart is

helpful:

Plato/Aristotle Lonergan Case Method

3. Wisdom/Intellect Judgment/Reflection Holding/Judgment

2. Analysis/Categorization Understanding Issue

1. Body Mind/Senses Experience Facts

Now, once we have figured out the Facts, Issue, and Holding of a Case, we can then

use that case as Legal Precedent. Since the Facts in any two cases are never exactly

identical, we must take the Case Precedent, and then Reason by Analogy. Consider the

following:

Case A

Facts: Bill, age 6 rides his bike through a cross walk on a green light, and is hit by a car

driven by Stan, who is making a right turn on red after stopping.

Issue: Is Stan negligent for hitting Bill?

Holding: Yes, Stan is negligent for not yielding to a pedestrian in the cross walk.

Now, five years later, Case B, occurs where Jane rides a bike through the cross

walk on a yellow light, and is hit by a car driven by Sally, who is making a right turn on

red after stopping. Attorney Smith, for Jane argues that his Client Jane is entitled to a

Summary Judgment at law, following Case A. What Attorney Smith is really saying is

that the Facts in Case A are analogous to the Facts in Case B, therefore the holding in

Case B should also be analogous to Case A, and therefore Sally, in Case B, should be

found negligent, as a Matter of Law, on Summary Judgment. If the Court agrees with

Attorney Smith’s argument by Analogy, then the Case Holding or Judgment in Case B,

will be as follows:

Facts: Jane rides a bike through the cross walk on a yellow light, and is hit by a car driven

by Sally, who is making a right turn on red after stopping.

Issue: Issue: Is Sally negligent for hitting Jane?

Holding: Yes, Sally is negligent for not yielding to a pedestrian in a cross walk, follwing

Case A , as a Matter of Law.

Thus, it is apparent that the Common Law involves both Case Analysis, and

Reasoning by Analogy, and it is also clear that such Legal Reasoning is unique to the

Legal Profession and the Rule of Law.