Reasoning By Analogy Is A Pervasive Feature Of Common Law

REASONING BY ANALOGY AND INCREMENTALISM Reasoning by analogy is a pervasive feature of common-law cases. Every volume of reports contains countless examples. This is not at all surprising. Analogy is an honorable, typical device of common sense reasoning, and many legal systems assign to analogy a formal place in their jurisprudence. In the common law, analogy, essentially, gets small recognition; it even lacks an official name. Yet analogy is the very core or seed of common-law growth. Rules change slowly, as courts extend or contract them using analogy. Edward Levi, in his valuable little book on legal reasoning, has given some good illustrations of the common-law use of analogy. Among these is the development of the concept of the ‘’inherently dangerous’’ object in tort law. The rule was that a person injured by some defect in a product might sue the person who sold him the product but not the original manufacturer. But if the

The prevailling attitude of judges favors judicial restraint, incrementalism, and reasoning by analogy, and behavior seems nearly as cautious as attitude. Theories come and go; the actual role of the courts within the legal system changes quite slowly. It has always been a limited role. Sometimes, courts exert strong pressure in one field or a handful of fields. The main flow has been glacially careful. The United States Supreme Court is a dazzling exception. In most countries, if not all, couts cannot exert significant control over economic and political life and do not wish to. Characteristically, their role requires them to recast, not to seize the initiative; what they do, they do in response to litigant pressure. Analogy, then, is more or less a functional necessity for modern courts. To say that courts are cautious by ‘’tradition’’ is to make a similar point. ‘’tradition’’ simply means strongly sensed jurisdictional limits that cannot easily be found in some formal