Resumen

ROJAS MARROQUIN, Abdón Mauricio. Precedent, Analogy and Reasons for Action. Comments on the Ideas of Frederick Schauer. Probl. anu. filos. teor. derecho [online]. 2021, n.15, pp.307-342.  Epub 31-Mayo-2022. ISSN 2448-7937.  https://doi.org/10.22201/iij.24487937e.2021.15.16125.

For a large part of the legal literature, with which I am particularly in agreement, the use and follow-up of judicial decisions in future cases is primarily a matter of analogies. However, the well-known professor Frederick Schauer, in several of his studies and publications, has put this idea at risk with good arguments. According to his interpretation, following the precedent is something substantially different from analogical reasoning. In this paper, we try to problematize his thesis from four analytical perspectives that I consider essentials: principles-rules; communicative intentions-linguistic tool; internal-external reason; and excluding-conclusive reasons. Within them, the thesis of separation proposed by Schauer would seem to fails.

Palabras llave : Precedents; Analogy; Reasons for Action; Exclusionary Reasons; Conclusive reasons.

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