based were “latent in the law” and courts invoke them.
189
Judges made a rule
for a new situation by extrapolation or “analogy” with decided cases.
190
By
proceeding in this way a court was not using a “novel” principle, but instead a
principle that was “consonant with the whole doctrine of law and justice”.
191
Courts, in other words, sought to “find the law” not “to manufacture it”.
192
Illustrations
When courts argue by analogy they can proceed in either of two ways. The
court can refer directly to the values involved. Or the court can refer to rules
that impound or are based on values.
Arguing from Values
A hypothetical legal illustration based directly on values would be arguing
against cruelty to animals. If we consider that it is wrong to inflict unnecessary
pain on a human, it is also wrong to inflict upon an animal on the basis that
they can also feel pain.
A real life illustration occurred in Donoghue v Stevenson where the House of
Lords argued
from a moral rule to a legal rule in establishing the tort of
negligence. In arguing that there should be a general tort of negligence Lord
Atkin said that the “[moral] rule that you are to love your neighbour becomes
in law, you must not injure your neighbour”.
193
Arguing from Rules
In the most obvious case, courts use analogy based on rules by arguing from
one judge made rule (common law or equity) to another. In the current age,
however, where statute law dominates a court can argue from statute to a judge
made rule because statutes reflect the popular will.
194
As Justice Kirby put the
188
To illustrate, in Sutherland Shire Council v Heyman
(1985) 60 ALR 1, 43-44
Brennan J said: "It is preferable, in my view, that the law should develop novel
categories of negligence incrementally and by analogy with established
categories” in preference to formulating some all encompassing rule and utilising
this to decide the case.
189
Webber (1995) p 9.
190
Mirehouse v Rennell (1833) 1 Cl & F 527 at 546 per Parke J and see McLoughlin
v O’Brian [1983] 1 AC 410 at 429-430 per Lord Scarman. See also Kitto (1992) p 794,
Mason in Sheard (2003) pp 4 and 5, McLachlin in Sheard (2003) p 20, McHugh
(1999). There is, however, some debate about reasoning by analogy -
Sunstein
(1993) is in favour of it while Westen (1982) and Schauer (1991) are against it.
191
Allen (1964) p 307
192
Allen (1964) p 308
193
Donoghue v Stevenson [1932] AC 562, at 580
194
Pilmer v Duke Group Ltd (In Liq) [2001] HCA 31, paragraph 170 per Kirby J .
The idea was suggested by Roscoe Pound in 1907 – see Roscoe Pound "Common
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