One is “penny wise, pound foolish”. The other is “two is company, three is a
crowd”. This false form of analogy, based on the notion that more is better,
involves the fallacy of composition. The corrective attitude is expressed in
another popular saying, namely the paradoxical “more is less”.
Making Common Law
Reasoning by Analogy
Clearly analogy is appropriate in law for reasoning on a case by case basis,
which is the way common law functions, in contrast to introducing sweeping
change. This happens in the following manner.
When deciding a case under common law, ideally a court can find and apply a
prior case that has dealt with the same issue as is now before it.
176
Such a case
was said to be in pari materia, that is, on the same facts. If there was such a
case, the court could apply it deductively. This case governs situation X,
situation X is now before us so this case applies. This is precedent in pure
form. It is a deductive form of reasoning.
However, it was always possible that the court would be faced with a
precedent that appeared partly relevant but did not fall squarely on the facts of
the case before it. It was similar but not identical to the facts before the court.
In the technical phrase the case was in consimili casu (in a similar style) to the
precedent.
Here the court has a choice. First, it could disregard the precedent (and hence
the value underlying it) as inapplicable. In this case the court has to make a
new rule.
Second, the court could delve into the precedent to detect an underlying value
and apply this to the case before it. This in fact was a common way of
proceeding as courts adapted old precedents to new situations.
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Reason, as
___________________
176
Courts, it might be noted, have sometimes reasoned by analogy from
statute – see Gunasekara (1993).
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In Gray v Motor Accident Commission
[1998] HCA 70 at par [81] the High
Court of Australia put the point simply. It said that until a precedent was
“displaced by legislation or overruled” it “must be applied to the same or
analogous
circumstances”. McHugh (1999) cites two illustrations. One is David
Securities v Commonwealth Bank of Australia
(1992) 175 CLR 353 where the court
extended the principles of restitution beyond cases of mistake of fact to
circumstances where there has been a mistake of law. The other is Byran v Maloney
(1995) 182 CLR 609 where the court extended a house builder’s liability for an
economic loss arising from inadequate footings so that it covered not just the
initial purchaser of the house, but subsequent purchasers as well.
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