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Principles, Precedents and their Interplay in Legal Argumentation: How to Justify

Analogies between Cases
• •• •


Thomas Bustamante


Introduction

In this essay I hold that there is a necessary inter-connection between principles,
precedents and analogy. On the one hand, precedents are required if a balancing of
principles is conceived as more than an ad hoc judgment. On the other hand, principles
are required to support analogies between cases.
In section A, I expose what I consider to be the shortcomings of the current
positivistic accounts of legal precedent and argue in favour of a principle-oriented
theory of precedent. The positivistic theories of precedent must be abandoned because
they neglect the importance of the justification of the rules that can be derived from
legal precedents. If we pay attention to the relationship between principles and
precedents, we can offer a more promising account of the principle of stare decisis. If
precedents are, broadly speaking, rules, and if all rules can be described as an outcome
of a balancing of principles, then the link between a precedent and a novel case must lie
in the principles used in the justification of the previous decision. In section B, I stress
the importance of constitutional precedents for reducing the indeterminacy of legal
principles. Without a practice of following precedents, there can be no order among
constitutional rights and the adjudication of such rights cannot be rationally justified.
Finally, in section C, I focus on the comparison between cases and try to reinforce the
thesis that the move from a precedent to the ruling of a novel case must find support in
an analogical reasoning which relies on a balancing of principles.




I would like to thank Prof. Carlos Bernal Pulido for the very helpful criticisms he has made on a
previous version of this paper. These criticisms led me to improve some of the key points of my argument.
The mistakes that the reader will find in this essay are probably the result of my insistence in some of the
A. The Tension between Legality and Rationality in Legal Practice and the
Inadequacy of the Positivistic Theories of Precedent

One of the central assumptions of Jürgen Habermas’ philosophy of law is the structural
tension between facticity and validity, that is, facts and norms, legal security and the
claim to be deciding correctly.
1
Habermas claims that the rule of law as understood in
contemporary democracies presupposes that the democratic legislative procedure and
the practice of adjudication appear “as part of a more abstract process of rationalization
of life-worlds of modern societies”.
2
Law plays a central role as a medium of social
interaction, insomuch as some “procedures rationally motivating understanding” are
made possible by means of normative discourses conducted by participants in the
processes of norm-formation and legitimate decision-making. According to Habermas,
law provides the framework for these procedures, and therefore plays a crucial part in
the political process because it generates a “force of social integration”. In order to play
its part in these processes of social integration, law must mediate or minimize the
tension between facticity and validity, in such a way as to warrant a social regulation
that is rational while taking into account the positive law valid here and now. In order
to stabilize this tension, he tries to vindicate a concept of legal validity (of a norm)
which means “that both things are guaranteed at the same time: legality but also
legitimacy”.
3

Habermas provides a well-argued theory to minimize this tension in the
legislative procedures. Nonetheless, when we focus on the actual practice of
adjudication, Robert Alexy’s thesis of the claim to correctness can reconcile the
principles of legality and legitimacy in a more promising way. In every legal system,
the creators of legal norms raise not only a claim to authority for their decisions, but
also a claim to correctness.
4
In the practice of adjudication judges have to balance the

theses whose deficiencies were kindly pointed out to me by him. Furthermore, I also with to thank
Adelyn Wilson for the suggestions on matters of English style.
1
Jürgen Habermas, Between Facts and Norms – Contributions to a Discourse Theory of Law and
Democracy (Polity Press, Cambridge 1996).
2
Ibid, p. 5.
3
Ibid, p. 31.
4
Nonetheless, not every legal theorist accepts Alexy’s thesis of the claim to correctness. Eugenio Bulygin,
for instance, claims that it is highly disputable that all the legal officials claim that their acts are
necessarily correct or just. This was certainly not the case, he argues, when Nero and Caligula issued their
constitutiones. Moreover, he also states that Alexy would be wrong to claim that the necessary
two aspects of law – the real or positive aspect and the ideal or correct one – in order to
fulfill the claim to correctness that they raise when they pronounce legal decisions. As
Alexy puts it, this claim to correctness embedded in legal discourse is at the same time a
claim that the decision “is correctly substantiated if one presupposes the established law,
whatever it may be” and a claim that “the established law on which the decision is
based is just and reasonable”.
5
A rational legal decision has to combine both elements,
as far as possible. Thus, the best theory of adjudication will be the one that can supply
the best equation between these two elements, the one that can stabilize in the most
consistent way the tension between ratio and auctoritas.


When one thinks of legal precedents, the English classical theory of stare decisis
immediately comes to mind. The strongest version of this theory was forged by 19
th

Century Bentham-based positivism. On the conceptual level, law was regarded as the
mere command of a sovereign or of somebody acting in his name. On the
methodological level, the key assumption was that “the reason which the judge gives for

connection between law and morality, which follows from the claim to correctness, has a merely
qualifying character, not a defining one. As the connection between law and morality is not defining,
Alexy argues, a law can remain valid in a legal sense in spite of not complying with its claim to
correctness. This assertion is expressly contested by Bulygin: If a certain feature of legal systems and
legal norms is not defining, then it is not necessary, but contingent (Eugenio Bulygin, ‘Alexy’s Thesis of
the Necessary Connection between Law and Morality’ (2000) 14 Ratio Juris 133,137). On a slightly
different track, Philip Soper argues that in fact there is a claim to correctness, but this claim is not
inconsistent with positivism’s insistence on the separation between law and morality: “That conscientious
persons believe they act correctly does not prove that they do, and this distinction between what is
claimed (or believed) and what is the case is all that the modern positivist need for his continued denial of
a necessary connection between law and morality” (Philip Soper, ‘Law’s Normative Claims’ in Robert P.
George (ed), The Autonomy of Law (OUP, Oxford 1994) at 220). Finally, Joseph Raz interprets Alexy’s
claim to correctness as a general thesis about intentional actions of the law-makers and their products, and
not anything special about law. This thesis not being about law, it would not help us understand or
identify the law. In his own words, “nothing can be learnt from the correctness thesis about the nature of
law” (Joseph Raz, ‘The Argument from Justice, or How Not to Reply to Legal Positivism’ in George
Pavlakos (ed), Law, Rights andDiscourse – The Legal Philosophy of Robert Alexy (Hart Publishing,
Oxford and Portland, Oregon 2007) at 28). Alexy answered these criticisms on multiple occasions (see
Robert Alexy, ‘On the Thesis of a Necessary Connection between Law and Morality: Bulygin's Critique’
(2000) 14 Ratio Juris 138, 147; Id. ‘An Answer to Joseph Raz’ in George Pavlakos (ed), Law, Rights
andDiscourse – The Legal Philosophy of Robert Alexy (Hart Publishing, Oxford and Portland, Oregon
2007)). Nevertheless, in this essay we can leave these discussions aside and assume, for the sake of
argument, that the correctness thesis can resist its critics. If this is the case, we can agree with Alexy when
he asserts that in the core of this claim there are: (1) the assertion that the legal act is substantially and
procedurally correct; (2) the claim (which generates a guarantee) of justifiability of this assertion; and (3)
the expectation of acceptance of correctness by all addressees of the legal norm. Therefore, the claim to
correctness leads to a legal obligation to hand down morally correct decisions (Robert Alexy, ‘Law and
Correctness’ (1998) 51 Current Legal Problems 216).
5
Robert Alexy, ‘The Special Case Thesis’ (1999) 12 Ratio Juris 374, 384 at 382.
his decision is never the binding part of the precedent”.
6
The internal dispute among
positivists was about which brute facts one should look for in order to find the ratio
decidendi of a case. Herman Oliphant, for example, proposes a “radical empiricism” in
the method of discovering the ratio decidendi. For him, “the predictable element [in a
precedent] is what the courts have done in response to the stimuli of the facts of the
concrete cases before them”, and therefore “not the judge’s opinion”.
7
A. L. Goodhart’s
method is not very different. He believes that the ratio lies in the material facts of the
case “as seen by the judge” in the quoted case. In his own words, “it is by his choice of
the material facts that the judge creates law”.
8
Rupert Cross’s famous theory moves in
the same direction. According to this theory the ratio decidendi could be found even in
decisions not backed by any kind of reasons: “It would be a mistake to assume that such
decisions lack a ratio decidendi which enables them to be cited as a precedent, for a
proposition of law on which they must have been based may be inferred with more or
less confidence from the facts coupled with the conclusion”.
9

It seems clear, therefore, that all these accounts of the rules extracted from
precedents highlight the auctoritas element in legal reasoning. They all assume that the
only reason for following precedents is authority. Case law is considered “valid and
binding law” for the sole reason of being introduced by the agencies institutionally
empowered to make law. This theory can be adequate for those who look at law from
the observer’s perspective but they are inappropriate for the participants in legal
discourse who struggle to hand down decisions that can be legally valid while
substantially correct. Participants in legal discourse must do the best they can to fulfill
both aspects of the claim to correctness raised in the justification of their interpretations
of valid law. For participants in legal discourse the task of a theory of judicial
precedents is far more ambitious than for an observer, since they expect it to provide
some criteria or normative directives for interpreting a precedent and for deploying it as
a sound argument in the justification of their legal decisions. Therefore a participant
who considers a given precedent must look not only at the result of a legal decision –

6
A L Goodhart, ‘Determining The Ratio Decidendi of a Case’ in A L Goodhart, Essays in Jurisprudence
and the Common Law (Cambridge University Press, 1931) 2.
7
Herman Oliphant, ‘A Return to Stare Decisis’ (1928) 14 American Bar Association Journal 159.
8
Goodhart (n 6) 10.
9
Rupert Cross, Precedent in English Law (3
rd
edn OUP, Oxford 1979) at 48.
assuming that the judge is no other than a law-maker – but most of all to the rational
grounds of the precedent as such.
10

But where should we look in order to find the rational grounds for a decision that
constitutes a precedent? Following MacCormick, we can say that “it is in the statement
of opinions upon cases by way of justifications of decisions that judges lay down
precedents and build up case law”.
11
In every legal system in which precedent is not a
matter of pure authority simpliciter, judicial decisions cannot be interpreted without due

10
The theories of precedent mentioned on the previous paragraph are typically positivist in the sense that
I am using here. What makes these theories of precedent positivists is that they assume that judges and
courts make law when they lay down a precedent. A precedent is valid because it was produced by an
authority empowered to create a general rule to be followed in future cases. The justification given by the
court is irrelevant to assert its validity or determine its ratio decidendi. One of the central theses of
positivism is that norms are valid because of their sources or their pedigree (I will leave aside the question
whether the master rules used by positivists to identify valid laws can incorporate principles of political
morality or not, for I am dealing only with the juridical reasoning from legal precedents). Since legal
decisions are sources of law, the rules extracted from precedents are legally valid. This assumption
underlies the vast majority of common law theories which explain the bindingness of legal precedents. I
believe that we can find that assumption even in contemporary positivists, in spite of the sophistication of
their legal theories. Waluchow, for instance, seems to hold the thesis that precedents are “valid law” for
the sole reason that they were laid down by the higher courts. We need not to consider the reasoning of
these courts to validate a precedent, and when this precedent is binding we are legally required to apply it
no matter the consequences for the parties or the lack of rationality of the court’s decision. In order to
avoid the moral consequences of this approach to the legal phenomenon, these positivists distinguish
between a “theory of law” and a “theory of adjudication”: theories of law are theories about the nature
and the identification of law, while theories of adjudication are theories about how courts should decide
judicial cases (see, for instance W. Waluchow, ‘Inclusive Legal Positivism (OUP, Oxford 1994) chapters
1 and 2; and Joseph Raz, ‘The Problem about the Nature of Law’ in Joseph Raz, Ethics in the Public
Domain (OUP, Oxford 1994)). They claim that the task of jurisprudence is just to describe the law, to
illuminate it so jurists will have a plausible answer to the question of what law is. The problem of the
force of the precedent and its importance in legal adjudication is left aside. It is not that positivists claim
that this problem is not relevant, but they just do not want to face it. Their obsession to understand the law
from the outside, as observers and not as participants, renders them unable or unwilling to construct a
theory that is fruitful for legal practice. The following excerpt from Manuel Atienza captures very clearly
this problem of positivism: “The desire to construct a descriptive and axiologically neutral theory is
closely connected to the fact that the positivist legal theory has, for the last century, remained in a state of
basic incommunication with regard to the practical general discourse and to that of legal dogmatics. A
theory of law conceived in this way could simply not participate in discourses of justification or criticism
of our constitutional models – those which are found in politics and philosophy – nor in those whose aim
is to mediate between raw normative material produced by the legislator, understood in the wide sense,
and the bodies which must resolve the disputes – the discourses to be found in legal dogmatics.” It could
be said that descriptivism implies clear limits on the interest which the theory of law can excite outside its
circle of direct promoters” (Manuel Atienza, ‘Is Positivism a Sustainable Legal Theory’ in Tomasz
Gizbert-Studnicki and Jerzy Stelmach (eds), Law and Legal Cultures in the 21
st
Century – Plenary
Lectures – 23
rd
IVR World Congress, August 1-6 2007, Cracow (Oficyna, Warsaw 2007) at 241). The
anxiety to produce a strictly neutral theory of law, typical of contemporary positivists, has made legal
theorists unable to say anything about how judges should justify their decisions of application of
precedents. If we abandon this descriptivism, we are likely to have a much more interesting philosophy of
law. As Ronald Dworkin persuasively recommended, it is time to depart from the assumption that
jurisprudence can be a purely neutral and descriptive enterprise: “When you do [take up legal philosophy],
take up philosophy’s rightful burdens, and abandon the cloak of neutrality” (Ronald Dworkin, ‘Hart’s
Postscript and the Character of Political Philosophy’ (2004) 24 Oxford Journal of Legal Studies 37).
consideration of the grounds on which they stand. Only when one pays attention to
those grounds or reasons can one understand the correct meaning of the rules that
judges lay down with their decisions. If one understands precedents as rules, and if one
pays due attention to the interplay between rules and principles in legal argumentation,
one can reach a principle-oriented theory of legal precedent that constitutes a proper
method for the rational justification of legal decisions which use and apply judicial
precedents. Let us discuss some points of such theory.

B. From Principles to Rules: The Role of Precedent in Reducing the Indeterminacy
of Basic Rights

Legal decisions need to be construed in a rule-like scheme. Legal justification demands
a commitment to universalizability which inevitably leads to a hypothetical structure
that is presupposed by the principle of formal justice.
12
In this direction, Leonor Moral
Soriano argues that the “rule of justice” has not only a moral aspect, but also a “formal”
content which can be expressed by the universality of the reasons that justify a
decision.
13
Like Neil MacCormick, she claims that any reason, in order to be considered
to have a justifying force, must be enunciated in universal terms, i.e., must be grounded
on a universal proposition. The formula of the ratio decidendi could be asserted
concisely thus: “When a judge makes reference to a previous decision, he refers to the
universal rule that is contained in it”. The rule that is contained in the major premise of
the syllogism which formally justifies the legal decision is what constitutes a precedent.
What makes it justifiable to refer to a precedent is the higher degree of certainty
and determinacy of the individual norms that can be extracted from case law. It is very
unlikely, thus, that the law-applying entity refers only to an abstract principle that was
announced in the previous decision, for in every judicial decision one can find at least
one universal rule that couples the facts of the case with a certain normative
consequence. What makes the technique of judicial precedent important is the fact that
it reduces the degree of uncertainty that characterizes legal provisions in general. We
refer to precedents because of their ability to reduce the indeterminacy of legal norms

11
Neil MacCormick, Rhetoric and the Rule of Law (OUP, Oxford 2005) 144.
12
Ibid.
13
Leonor Moral Soriano, El Precedente Judicial (Marcial Pons, Madrid 2002), p. 138.
by universalizing the solutions to our legal problems. In the case of constitutional rights,
which are normally protected by principles instead of rules, the most important function
of the precedent is to stabilize the collisions that are likely to appear between these
constitutional rights. In this sense, Robert Alexy argues that

“The wording of the Constitution does not help much in the majority of cases of
balancing, and the same can be said about the original intention of those who enacted the
Constitution, for in most cases they wanted both things at the same time: the right that is
being optimized by a given measure and that other right in which this measure interferes.
In other words, the traditional canons or rules of interpretation do not help much in the
external justification in the context of balancing. What is important in constitutional
adjudication is the use of precedents. When there is a new Constitution, the court can
base its first decision on almost nothing. But the older a Constitution is, the more
normative materials there will be in the concrete individual norms that are produced in
conformity with the ‘law of competing principles’. This can be used as a basis for
constitutional argumentation”.
14


I believe we should agree with Alexy that in constitutional argumentation jurists should
rely on legal precedents in order to find a baseline or common ground for their juridical
argumentations. It is in the precedents that one can find the individual norms that follow
from the collisions of principles. They constitute a key element for determining the
scope of protection of each basic right. Without the prima facie obligation to follow
precedents it would be possible neither to comply with the principle of
universalizability nor to apply the law in an impartial way.
Since the majority of the basic rights are principles, “deciding constitutional
matters requires in any case an intensive use of precedents”.
15
To quote Alexy again, we
can say that “nowadays one cannot understand what the fundamental rights are simply
from the mere text of the Constitution, but rather from the Sentences from the Federal
Constitutional Court (…). Fundamental rights are what they are mostly through

14
Alice W Geremberg, ‘Entrevista com o Prof. Robert Alexy’ (2003) 16 Revista Trimestral de direito
Civil 311, 320 at 316.
15
Michele Taruffo, ‘Institutional Factors Influencing Precedents’ in Neil MacCormick and Robert
Summers (eds), Interpreting Precedents – A Comparative Study (Ashgate, Aldershot 1997) 456.
interpretation”.
16
The inevitability of balancing, which derives from the structure of
constitutional rights, leads to the necessity of adhering to judicial precedent in order to
compensate for the indeterminacy of the constitutional principles.
17
From the moment
that jurists abandon the positivistic claims that moral reasons are something “external”
to law and that legal principles do not constitute “positive law”, a wider range of
interpretive and argumentative freedom becomes available for judges in their practical
activity,
18
for the statutory provisions authoritatively laid down in legislation cease to be
the only legitimate source of reasons for legal decisions. Reasoning with principles
inevitably increases the indeterminacy of the legal order. And this sphere of
indeterminacy can only be reduced by a gradual development of the law according to a
coherent practice of precedent.
As the supreme courts of the democratic constitutional states lay down rulings on
issues of collisions of principles, fundamental rights cease to be a mere set of topoi from
which one can more or less freely depart and become something like a rational system
of conditioned priorities between principles. Precedents, therefore, are a requirement of
practical reason, for they constitute a decisive starting point for the universalistic and
impartial application of legal principles.

C. From Case to Case: Precedents, Principles and Comparison

1. Analogy and Comparison

The judgment about the analogy between cases is a comparison between the essential
elements of the precedent decision and those of the case that is to be solved by the court.
There is probably a consensus about that. When the material or relevant elements of the
cases are alike, we should attribute the same normative consequences to them.
Nonetheless, this relevance of common elements cannot be determined by means
of a mere superficial analysis of the predicates of the facts stated in the conditions of

16
Robert Alexy, ‘Los derechos fundamentales en el Estado constitucional democrático’ in Miguel
Carbonell (ed), Neoconstitucionalismo(s) (Trotta, Madrid 2003) 35.
17
Diana Patricia Quintero, ‘Cinco Preguntas a Robert Alexy’ (2003) Precedente 89,93 at 92 <
http://dspace.icesi.edu.co/dspace/handle/item/432> accessed 10 November 2008.
18
Alfonso García Figueroa, ‘Princípios e Direitos Fundamentais’ in Daniel Sarmento e Cláudio Pereira de
Souza Neto (eds), A Constitucionalização do Direito (Lumen Juris, Rio de Janeiro 2007) 12.
application of the two rules, but rather needs, beyond this judgment of ‘resemblance of
cases’, a careful reflection on the existence of an ‘identity of reasons’ for decision.
Here it is necessary to make a comparison of the ratio
19
of the precedent with the
reasons that could be adduced for any other possible rules that could derive from
analogical argumentation. In this field, the maxim ubi eadem ratio ist, eadem iuris
dispositio esset debet comes into focus.
But even at this stage there is room for ambiguity. For instance, Maria José Falcón
y Tella argues that this “identity of reasons” presumed to support the analogical link
between cases can be understood in at least three senses. Firstly, the locution eadem
ratio may express an “identity of goals”, be it in the subjective sense of the “goal of the
legislator” or in the objective sense of the “goal of the law as it should be understood
now”. Secondly, the ratio may be understood as the values, principles or ideas which
support the law. In this second conception, however, jurists use a plurality of terms to
signify the same idea, such as: a) anima legis, b) medulla legis, c) “sufficient reason”
for the rule etc. Finally, one can speak also of a ratio as the “object of regulation”,
which is “neither the reason-why nor the reason-for the rule, but exactly what is
predicted in the norm”. In this third conception, when looking for the ratio of a rule or
the base-line for analogy, one should look for “the legal interests” protected by the
paradigmatic rule.
20

Of these three interpretations, that which seems most appropriate in my opinion is
neither the “identity of goals” nor the identity of essential [factual] elements of a case,
but rather the identity of support for the norm to be applied.
The comparison becomes clearer once we remember that what justifies a certain
legal regulation is a set of principles which stand behind the particular rules and give
them ethical-juridical support.
When we understand this relationship between the basic principles and the
particular rules, it becomes easier to elucidate the factors that determine why we should
move from one case to another. Legal analogy, I insist in the next section, should be
justified by means of a balancing of principles.


19
The word “ratio” is used here to express the reasons which support a given precedent, and not in the
strict sense of ratio decidendi, which refers to the rules that can be extracted from case law.
20
Maria José Falcón y Tella, El argumento analógico en el Derecho (Civitas, Madrid 1991) 69.
2. Principles as a Baseline for the Analogy between Cases

As we have seen, judge-made rules are inseparable from the principles that inspire them
and constitute the ideal dimension of law. When Robert Alexy claims that from any
situation where there is a collision of principles we can develop a rule that contains in
its hypothesis the description of the facts of the case and in its consequences the conduct
required by the prevailing principle,
21
he makes a clear point that precedents are
inevitable in order to establish some conditioned priority relations among principles and
turn law into a more coherent and rational order. Even those who do not accept Alexy’s
distinction between principles and rules can agree on the role played by precedents.
Klaus Günther, for instance, is happy to recognize that precedents play a decisive role
for neutralizing the “pragmatic indeterminacy of law” – that is, the indeterminacy that
results from the use (and the collisions) of norms in speech acts in general.
22

In the previous section, I have tried to demonstrate that precedents are crucial for
developing an increasingly rational system of principles. Nevertheless, this is not a one
way street. There can be no application of precedents without due consideration of the
principles that stand behind the rules embedded in legal decisions. As a consequence of
Alexy’s Law of Competing Principles,
23
we can argue that “each legal rule may be
presented as a result of weighing and balancing of principles”,
24
either when this
balancing is performed by the legislator or by the judge who decides the case which is
valid as a precedent.
Once this relationship between rules and principles is understood, the move from
a precedent to an unresolved case becomes clearer. Comparing cases is comparing the
individual rules that are established by the courts in their rulings.
A judicial precedent becomes relevant for future decisions because it is possible
to extract from it a rule which couples the facts of the case with a clear-cut consequence
formulated in general terms. This rule is to be analogically applied to cases that have
some similarities to the paradigmatic case, but which very rarely are identical to it.

21
Robert Alexy, A Theory of Constitucional Rights (OUP, Oxford 2002) chapter 3.
22
Klaus Günther, ‘The Pragmatic and Functional Indeterminacy of Law’ in Christian Joerges and David
Trubek (eds), Critical Legal Thought: An American-German Debate (Nomos Verlagsgesellschaft, Baden-
Baden 1989) 448.
23
Alexy (n 21), chapter 3.
Following Aleksander Peczenik, we can say that “the normative strength of precedents
as such is the strength of the analogy between cases”.
25
The structure of the application
of precedents is therefore the same as that of the analogia legis, which can be described
thus:

“Legal tradition concerning analogia legis can be explicated as follows. There is a ‘gap’
in law. Some cases ought to be regulated by law but are not. (…) ‘Gaps’ can be fulfilled
by analogy. Let us assume that no legal norm regulates a given case C. But a given norm
n, intuitively read or properly interpreted, requires or permits to decide some other cases
in a given way W. The case C is similar to all these cases or at least to some of them,
regarded as typical. The similarity concerns persons, or acts, duties, rights, place, time,
etc., and is evaluated as essential. Hence, the case C is also decided in the way W or
similarly”.
26


Although this explanation provides a reasonable account of the structure of legal
analogy, it leaves unanswered a few questions: Where should we look for in order to
find the “essential” similarities between the precedent and the rule that is proposed for
the solution of the new case? How can we justify this analogy between these cases?
My thesis is that the notion of “similarity” between facts is not enough to contest
these problems. In order to answer these questions, I suggest that instead of comparing
the facts of the precedent with the facts of the current case it is better to compare the
rules that are presupposed in the reasoning that leads to the decision in each of the two
situations. We should look not for the “similarity of facts”, but to the “similarity of
rules”. In fact, when arguing by analogy one requires “a base line or point from which
we can start and by reference to which we can compare and contrast any particular
problem case or situation”.
27
This “baseline” for the analogy between cases is much
more visible when we compare rules than when we compare brute facts: rules are

24
Aleksander Peczenik, ‘Jumps and Logic in The Law: What Can One Expect from Logical Models of
Legal Argumentation?’ (1996) 4 Artificial Intelligence and Law 297, 329 at 298.
25
Alexander Peczenik, ‘Acerca de los precedentes vinculantes de facto’ in Alexander Peczenik, Derecho
y Razón (Fontamara, Mexico 2000) 59.
26
Aleksander Peczenik, ‘Analogia Legis. Analogy from Statutes in Continental Law’ in H. Hubian (ed),
Le Raisonnement Jjuridique – Actes du Congrès Mondial de Philosophie du Droit et de Philosophie
Sociale – Bruxelles, 30 Août - 3 Septembre 1971 (Bruylant, Brussels 1971) at 330.
immediately linked to legal principles, while facts are not. Principles can bridge the gap
between rules, and nothing seems to be able to do the same job with mere facts.
When one seeks for the ratio of a determinate ruling, one can only find it in the
principles that justify it and make it cohere with the rest of the system to which it
belongs. As Ronald Dworkin puts with clarity, in hard cases

“Principles play an essential part in arguments supporting judgments about particular
legal rights and obligations. After the case is decided, we may say that the case stands for
a particular rule (…). But that rule does not exist before the case is decided; the court
cites principles as its justification for adopting and applying a new rule”.
28


As principles are broadly speaking the reasons for every particular rule, the creation of
a new rule by analogical argumentation can be justified whenever a new case can be
solved by the same priority relation between principles as that of the precedent. In other
words, judgments about the analogical application of a precedent are judgments about
the sameness of the conditions under which a certain principle prevails over another.
29

It is visible, therefore, that an argumentative account of analogy cannot avoid
deploying principles as value-factors for the “external” justification of the premises
necessary to allow a deductive description of analogy. When one has to decide whether
or not to apply analogical reasoning one is faced not only with a cognitive problem, but
with an evaluative question that needs to be answered according to the principles that
justify the paradigmatic solution which is to be extended to cover the unresolved case.
30

Principles have the function of explaining and justifying the specific rules that can
be used in juristic argumentation.
31
Analogy can only be supported if the reasons that
justify the paradigmatic rule are also applicable to the new one. In order to justify a

27
Zenon Bańkowski, ‘Analogical Reasoning and Legal Institutions’ in Peter Nerhot (ed), Legal
Knowledge and Analogy: Fragments of Legal Epistemology, Hermeneutics and Linguistics (Kluwer,
Dordrecht; Boston; London 1991), at 200.
28
Ronald Dworkin, Taking Rights Seriously (Harvard, Cambridge Massachusetts 1977) 28.
29
One could argue, however, that there is no difference between comparing rules and comparing cases or
facts. What makes rules comparable is the fact that they refer to cases which are similar in an essential
way. Nonetheless, I argue that it still makes a difference to concentrate on rules instead of on facts, for
this perspective makes more visible the fact that principles are required in order to bridge the gap between
one case and another.
30
Zenon Bankowski, Living lawfully: Law in love and love in law. (Kluwer, Dordrecht-Boston-London
2001) 146.
31
Maccormick (n 11).
conclusion reached by analogy it is necessary to trace back the path taken by the
previous court and verify whether or not it is correct and reasonable to keep the same
conditioned priority relations between the principles as those from the rule set down in
the paradigmatic case.
It is therefore impossible to rationally justify a decision by analogy except
through an evaluation of the principles which rationally justify the rule to be
analogically applied. Only by a principle-oriented argumentation can one justify the
creation of a new rule by analogy.
32

It makes sense, thus, to adopt here Brożek’s Partial Reducibility Thesis, which
states that legal analogy can be partially reduced to balancing. For Brożek analogy
consists of the following five stages:

“(1) One encounters a problematic case, i. e. a case for which there is no directly
applicable legal rule (…).
(2) One identifies cases similar to the given one, for which there exist definite solutions.
The notion of similarity used here is defined by the legal question at hand (…).
(3) One identifies the principles standing behind the legal rules that govern the similar
cases and uses them to construct arguments for the case at hand (…).
(4) One weighs the principles on which arguments leading to incompatible solutions are
based.
(5) The conclusion of the prevailing argument is the decision in the case at hand”.
33


This model has the advantage of getting rid of the “problematic process of deciding
which similarities are relevant similarities”, for it “transforms this problem into the
well-defined task of weighing principles”.
34

In fact, this model makes the argument by analogy far more controllable, because
it is not satisfied with examining its superficial structure, but brings into consideration
the balancing of principles necessary to establish a link between one case and another.

32
Ibid, 210-211/
33
Bartosz Brożek, Rationality and Discourse – Towards a Normative Model of Applying Law (Oficyna,
Warsaw 2007) 149.
34
Ibid, 152.
By describing analogy as part of a process of balancing of principles, we can assert that
Robert Alexy’s Law of Competing Principles is applicable to analogical reasoning.
35

With these elements it is already possible to propose a form of argument suitable
for structuring analogical decisions.
To describe the internal structure of the justification of decisions that proceed by
analogy it is necessary to include in this structure not only: (i) the hypothetical
description of the paradigmatic norm embedded in the precedent to be extended and (ii)
a statement of the resemblance between the case to be solved by analogy and the case
ruled by the paradigmatic rule, but mainly (iii) the principles which underlie that rule
and those which would possibly justify the construction of a new normative hypothesis
by analogy.
As a first step in this procedure it is necessary to describe the case-law norm to be
taken as a paradigm by a statement like:

(1) N: (x) (Cx → ORx),

where N is a juristic rule according to which “for every x, the consequence R must
follow whenever the conditions C are present”.
36
Nevertheless, in order to allow the
move from N to a new norm N
1
one must include other statements, for one needs to
make explicit the principles that were balanced by the previous court in case C. For this,
the structure that Alexy uses to express the conditioned priority relations between

35
On this specific point I disagree with Brożek’s theory of analogy because he tries do dissociate the
balancing of principles (and the balancing model as a whole) from Alexy’s Law of Competing Principles.
Brożek argues, in contrast to Alexy, that the Law of Competing Principles – which states that in every
case of balancing of principles one reaches a rule that settles the consequences of the case – is
unnecessary when a model of defeasible logic is applied to legal principles: “The Law of Competing
Principles is needed because of the use of classical logic, and a shift to a defeasible logic enables us to get
rid of this superfluous, as I argue, device” (Brożek, n 33, p. 150). Nonetheless, one can counter that it is
precisely the Law of Competing Principles that makes Brożek’s argument plausible. It is the fact that the
collision of principles leads to the formulation of a rule that makes it possible to determine, with a certain
degree of objectivity, the principles that stand behind the rules which need to be compared in order to
validate the argument by analogy.
36
This scheme is approximately equivalent to that used by Robert Alexy in his Theory of Legal
Argumentation (OUP: Oxford 1989, p. 222, rule J.1.1). In this scheme x is a variable of individual in the
domain of legal persons; C is a predicate that represents the hypothesis of a norm N; R is a predicate that
express what the addressee of the norm must do; and O is a deontic operator which means “it is
obligatory that”.
colliding principles can be useful.
37
In order to express these priority relations, we can
add the following premise:

(2) (P
1
P P
2
) C.

This sentence (2) expresses a relation of conditioned preference between
principles P
1
and P
2
. Therefore the legal rule N, which settles the normative
consequences OR, is the result of a balancing operation undertaken by the legislator or
the previous court for the hypothesis C.
If in a new case C
1
one faces the same principles P
1
and P
2
, and the interpreter of
law concludes that the priority relation of such principles should be the same, there
follows this conclusion:

(3) (P
1
P P
2
) C
1


As a result of (2) and (3), we arrive at a new juristic rule N
1
, which can be
expressed as follows:

(4) N
1
: (x) (C
1
x → ORx).

The following chain of reasons is therefore a reasonable argument:

. (1) N: (x) (Cx → ORx)
. (2) (P
1
P P
2
) C
. (3) (P
1
P P
2
) C
1
(4) N
1
: (x) (C
1
x → ORx) (1)-(3).

This argumentative scheme – in spite of its remarkable simplicity – can be a
suitable model to elucidate the structure of the argument from analogy, since it clearly
shows what principles are chosen to justify deriving a rule through an analogical
argument and what relation of conditioned precedence can be established between them.

37
Alexy, n 21.
The revised version of the argument by analogy reveals that any decision of
application of precedents must be mediated by the principles which establish a sort of
“bridge” between cases and serve as a background for the coherence of the legal order.

3. An Example of Application of this Model

The above model allows us to elucidate the structure of the argument by analogy and to
visualize a model of internal justification of the decisions that apply judicial precedents.
We will now look at two examples that demonstrate how this model can be used.
The examples are quoted from Zenon Bańkowski’s account of legal analogy.
Bańkowski’s starting point is a well-known case in the law of the United Kingdom:
Donoghue v. Stevenson.
38
In this case, “it was held that Mrs. Donoghue, who was made
ill by starting to drink, in a cafe, a bottle of ginger beer in which she claimed there had
been a decomposing snail, had a remedy in negligence against the manufacturer with
whom she had no contractual relation”. On the occasion, Lord Atkin said:

“A manufacturer of products, which he sells in such a form as to show that he intends to
reach the ultimate consumer in the form in which they left him with no reasonable
possibility of intermediate examination, and with the knowledge that the absence of
reasonable care in the preparation of putting up the products will result in an injury to the
consumer’s life or property, owes a duty of care to the consumer to take reasonable
care”.
39


We can observe that the rule fixed in the precedent established as a sufficient condition
for the normative consequence (the recovery of damages from the manufacturer) the
following normative requirements: a) the impossibility of verification of the product’s
noxious character by the consumer; and b) the knowledge that the lack of care in the
preparation of the product may harm the final consumer. This ratio decidendi can be
reconstructed with the help of the principles that support it. Like any other rule, this
ratio decidendi has its origin in a balancing of principles: the principles of protection of

38
[1932] A.C., 562.
39
[1932] A.C., 599. See Zenon Bańkowski (n 27).
the consumers, which favours the attribution of responsibility to the manufacturer,
overrides the principle of culpability in torts, which favours the thesis that there is no
remedy against the manufacturer.
If we express this priority relation between principles according to Alexy’s Law of
Competing Principles, we could say:

C (P
1
P P
2
),

where C expresses the facts of the case (‘non-contractual relationship’ & ‘impossibility
of previous examination by the consumer’ & ‘knowledge about the potential noxious
character of the product’), P
1
expresses the prevailing principles (the principle of
protection of consumers) and P
2
expresses the principle put aside (the principle of
culpability, according to which one should not be responsible without proof of
negligence or a contractual relationship)

.
40

This collision leads to a rule which can be expressed thus: C→R, where C stands
for the operative facts of the norm and R for its consequence in the case at hand.
This rule derives from a judgment of preponderance of one principle over another:
the importance of the protection of P
1
was considered greater than the interference in P
2
.
We can say in the case at hand that P
1
was satisfied in an intense degree and that P
2
was
restricted in a light degree, since the principle of culpability was limited only in special
circumstances that entail to the manufacturer a duty of care.
Let us come back to Bańkowski’s essay. In his argumentation, Bańkowski
presents two further cases in which the analogical application of Donoghue v.
Setevenson was requested by the appellant. The first – where the analogy was rejected –
is Kubach v. Holland,
41
in which a teacher acquired from a second defendant a certain
amount of antimony sulphide which was delivered by mistake as manganese dioxide.
The product ‘had been bought from a third party but the invoice stated that the goods
‘must be examined and tested by user before use’. This was not told to the teacher and
neither he nor the second defendant did so. There was an explosion in the class. In an

40
Of course this description can be regarded as an oversimplification of the reasoning of the court, but it
can be useful here at least to demonstrate the need of balancing principles in order to support an
analogical inference.
41
[1937] 3 All E.R. 907.
action by a schoolgirl injured in the blast, the second defendant was held liable but the
original manufacturer was judged not liable’.
42
As Lord Hewart CJ said after discussing
Donoghue,

“The case which is there contemplated is, I think, in essential respects the opposite of the
present case. The manganese dioxide which the third party ought to have supplied here to
the second defendants might have been sold for a variety of purposes. It was common
ground that a very simple test, if it had been carried out, as the third party’s invoice
prescribed, and as the first defendant was not warned, would immediately have exhibited
the fact that antimony sulphide had erroneously been made up and delivered as
manganese dioxide”.
43


One can observe in this second case a series of different factual conditions, which were
sufficient to invert the order of precedence between the principles in the concrete case.
The product was not manufactured specifically to be used in a classroom and, in
addition, the manufacturer was especially concerned in neutralising the risks of the
product by warning the acquirer about the need of testing the product before using it.
Here, one can say that the manufacturer freed himself from the ‘duty of care’ to the
consumer when he expressly advised the latter of the security measures that, if properly
followed, would have avoided the accident. In this case, one can say that there is an
inversion of the priority relation between principles, for P
1
would only be protected in a
light or medium intensity if the ruling of Donoghue were applied, since the harm
suffered by the consumer was actually caused by the inappropriate use of product.
The factual circumstances led to the inversion of the conditioned priority relation
between principles P
1
and P
2
, in such a way that the rule laid down in Donoghue v.
Stevenson was held inapplicable.
The other example is Haseldine v. Daw and Son Ltd.
44
In this case, Haseldine was
wounded by an elevator in a block of flats. “The building had just been serviced by a
company A. & P. Steven Ltd., who had a contract to service the lift and report any

42
Bankowski (n 27) 199.
43
Ibid.
44
[1941] 3 All. E. R. 165.
problems to the owners of the block of flats. This they did negligently and did not give a
report to the owners”.
45

In this case, the court analogically applied the ratio decidendi of Donoghue to
facts which are similar, but not identical. Here, the court considered not-essential the
fact that the duty of care toward a non-contracting party is attributed to the repairer, and
not the manufacturer, of an object. There was a basis for analogy, on the other hand, in
the fact that the user of the service did not have any means to verify the adequacy of the
product that was delivered or the service that was being used. In both cases, the supplier
has a duty of care not only towards the buyer, but towards any other persons that come
in contact with the product, for he becomes responsible for the lack of safety that his
product generates for the whole community.
As we see in the sound explanation of Bańkowski, what turns Donoghue into the
parameter of comparison for the analogical solution of Haseldine is the fact that the
complex interaction of principles that leads to the rule comprised in the former case
remains stable in the latter. When the court decided to apply the ratio of Donoghue by
analogy, the best way to justify this decision was by appealing to the principles that
supported the precedent decision, in order to reach the conclusion that in the new case
C
1
the same order of priority between principles P
1
and P
2
should be maintained.
It is therefore clear that what supports analogical reasoning is a judgement about
the applicability of the principles that underlie the rule derived from a precedent to a
novel case. Probably the best way to justify analogies between precedents is by means
of a balancing of principles.


Thomas Bustamante
University of Aberdeen
School of Law
Old Aberdeen
AB24 3UB
United Kingdom
Email: t.bustamante@abdn.ac.uk


45
Bankowski (n 27) 199.