Dialectical arguments and case comparison

Bram Roth and Bart Verheij

Abstract

The basis of legal case-based reasoning is the doctrine of stare decisis: decisions in new cases should follow decisions in similar old cases. This paper takes as a starting point the ‘case comparison’ interpretation of the stare decisis doctrine. In this interpretation one establishes by case comparison which previously decided cases are sufficiently similar to a new case, after which the old conclusions are adopted in the new case. The paper shows how one can formally account for case comparison in terms of the dialectical arguments that cases give rise to. An innovation over previous work is that dialectical arguments are now formally defined, yielding a more transparent formal treatment of case comparison.

Reference:
Roth, B. & Verheij, B. (2004). Dialectical arguments and case comparison. Legal Knowledge and Information Systems. JURIX 2004: The Seventeenth Annual Conference (ed. T.F. Gordon), pp. 99-108. IOS Press, Amsterdam.

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