On Discovery And Justification Of Similarity Between Cases In Analogy Of Law

The present theorists use analogical reasoning in different meanings, and it is more important that, they only discuss similarity judgment between cases from dimension of discovery or justification, and thus result in all kind of debates about analogical reasoning.The paper discusses contemporary epistemology's significance for similarity judgment between cases and its limitation, and thus presents a kind of type theory based on the concept of type, which is very important for similarity judgment between cases, that is, the similarity judgment between cases is product of both semantic similarity of a case and similarity between cases in purpose of legal rules, reason of legislation, principle of law. The paper uses semantic argument, principles argument, balance argument and coherence argument, discuss in turn the problems of justification where legal interpreter face indeterminacy when they use types of law to make judgments of similarity between cases.In structure, the paper first put forward the debate on similarity judgment and its problems on the basis of discussing all kinds of debates on analogy. And then it discusses theory of tacit knowledge, theory of prototype, conceptual blending theory, modern cognitive psychology and German type jurisprudence's significance for similarity judgement and its limitation on the basis of related studies, which forms the theoretical foundation of the paper.The third part discusses the structures of type of law and its significance for similarity judgment by virtue of studying some cases. The discussion prove that types of law can be used in similarity judgment, which imply that contemporary type theories are very important for discovery of similarity judgment between cases in analogy.The fourth part discusses problem of justification in similarity judgment between cases, through study of semantic argument, principle argument, balance argument and coherence argument.