An Analogie model based on IBE

Law and Philosophy https://doi.org/10.1007/s10982-024-09522-3  The Author(s) 2025 YICHEN LO AN ANALOGIE MODEL BASED ON IBE (Accepted 7 November 2024) ABSTRACT. In German judicial methodological theories, Analogie is a form of further development of the law (Rechtsfortbildung) in cases of statutory loopholes (Gesetzeslücke). This paper argues that there are at least four levels of indeterminacy in Analogie which reveal the argumentative characteristics in making an Analogie argument. Current methodological theories commonly construct Analogie based on deductive models; however, this approach fails to address the argumentative process of Analogie. This paper suggests that theories of Inference to the Best Explanation can better capture these characteristics when it is used to represent Analogie in law. It examines theories of IBE and evaluates their potential to facilitate legal reasoning. The last part of this paper suggests an Analogie model which is based on IBE. This alternative model enhances the rationale-giving and dialectical function in the construction of an Analogie argument. I. INTRODUCTION: ANALOGIE AS AN ARGUMENTATIVE PROCESS A. Analogie in Judicial Methodology In German legal theories, Analogie is one method of reasoning in the domain of Rechtsfortbildung, or further development of the law. An Analogie argument proceeds like this: First, there is a target case waiting to be solved. Features of the target case lead us to consider the applicability of a particular statutory law, or source rule. By interpreting the source rule, we find that the literal meaning of the language of the source rule does not encompass the target case, thus rejecting a ‘direct’ application of the source rule. However, based on some similarities between the target case and the source rule, we determine that the two should be treated equally. This state of a lack of applicable law is named a statutory loophole (Gesetzeslücke). As a Y. LO result, we analogize the source law to the target case and fix the loophole. Analogie in this judicial methodological sense is distinguishable from the general idea of analogical reasoning.1 Analogical reasoning is a form of argument that infers from similarities between two objects to a conclusion that further similarities exist; whereas Analogie is a special form of analogical reasoning in the field of law, featuring, among others, a certain degree of adherence to the principle of statutory constraint.2 The principle of statutory constraint is one limiting condition that demands that the judges follow ‘the law’ in their judicial decisions.3 In an Analogie argument, this feature is exhibited in the following two dimensions: 1. The goal of inference: Analogical reasoning can infer the existence of certain factual characteristics based on shared similarities between the two objects, such as Wittgenstein’s theory of family resemblance. Analogical reasoning can infer normative characteristics of the two objects as well, and this method has been employed by some common law lawyers to account for their case-law reasoning process. It proceeds like this: If the facts of the target case fall within the scope of the rule of the source case (precedent), it is bound by the source case; however, if the target falls outside the scope of the rule, based on certain similarities between the source case and target case, the normative demand of the source case is analogized to the target case.4 As a special case, Analogie in the German context is exclusively normative and statute-bound. The conclusion of an Analogie argument is whether courts of a target case should rule in the same way as a source rule demands. 1 This paper uses the original German word ‘Analogie’ to refer to the particular form of argument in German judicial methodology. Most English works translate Analogie into ‘analogy’, ‘statutory analogy’, or ‘analogical application’. This treatment, however, overlooks Analogie’s unique features, such as the principle of statutory constraint mentioned below. 2 Cf. Robert Alexy’s special case thesis, Robert Alexy, A Theory of Legal Argumentation 16 (2011). 3 Article 20(III) and also Article 97I of the German Basic Law. The meaning of Gesetz und Recht in Article 20(III) is controversial. Gesetz refers to statutory rules passed by legislators, whereas Recht does not (whatever Recht means here). Therefore, adding Recht to Article 20(III) offsets the exclusive binding forces of legislation. This Article manifests the continuous tension between adhering to and complementing statutory demands in order to achieve the best solution or justice for individual cases, and this has been one central issue for methodological theories. 4 This dominant view is elucidated in Frederick Schauer, Thinking Like a Lawyer 85 (1 ed. 2012). Contra, Edward Levi, An Introduction to Legal Reasoning (1949), and Richard Posner, The Problems of Jurisprudence 105 (1990). AN ANALOGIE MODEL BASED ON IBE Candidate source rules are almost exclusively statutory provisions, instead of judge-made precedents. The principle of statutory constraint requires that Analogie be conducted as a way to ‘extend’ normative demands embodied in the legislation. 2. Evaluation criteria: Philosophers have proposed various standards to evaluate the quality of an analogical argument, taking into account, among others, the number of similarities between the two objects, the extent of our knowledge about the two objects, the strength and scope of the conclusion and whether there are causal relations involved.5 However, these criteria cannot apply directly to Analogie arguments. If I argue that a vacuum state of norm constitutes a statutory loophole and should be fixed by means of Analogie, I have to justify my Analogie argument by proving that such a state of norm is undesirable, and only justifications based on ratio legis and the internal purpose of the law are permitted.6 In other words, the evaluation criteria for my Analogie argument is my articulation of the ratio legis and the internal purpose of the law. In order to understand the exact role of ratio legis in Analogie, the following section will examine the reasoning process of Analogie and identify four levels of indeterminacies involved in the process. B. Four Levels of Indeterminacies in Analogie Let us suppose a hypothetical case: A Tobacco Control Act stipulates that ‘Selling tobacco products to minors is prohibited’. When the Act was enacted, tobacco products referred to products made from tobacco leaves that are intended for human consumption. For the sake of illustration, let us also assume that (1) There is no general prohibition of Analogie in regard to this law, and (2) There is a statutory definition of ‘tobacco products’ in this hypothetical law which explicitly enumerates the four kinds of tobacco products as ‘readymade and roll-your-own cigarettes, cigars, and pipes’. Now, a business owner Ben is found selling e-cigarettes to a minor c (...truncated)