Case To CaseArguments

Argumentation (2018) 32:431–455
https://doi.org/10.1007/s10503-018-9448-z
Case-to-Case Arguments
Katharina Stevens1
Published online: 11 January 2018

Ó Springer Science+Business Media B.V., part of Springer Nature 2018
Abstract Arguers sometimes cite a decision made in an earlier situation as a reason

for making the equivalent decision in a later situation. I argue that there are two
kinds of ‘‘case-to-case arguments’’. First, there are arguments by precedent, which
cite the mere existence of the past decision as a reason to decide in the same way
again now, independent of the past decision’s merits. Second, there are case-to-case
arguments from parralel reasoning which presuppose that the past decision was
justified and are used to show that an equivalent present decision would also be
justified. Both arguments are a type of argument by analogy. They differ in their
structures and conditions of cogency, even though they often look the same in
presentation. Their similar appearance poses a risk of miss-evaluation and fallacious
use. Therefore a clearly theorized distinction is important.
Keywords Argument by analogy Argument by precedent Argument

schemes Argument types
1 Two Kinds of Case-to-Case Arguments
Imagine you have a daughter and she tells you that she wants to go to a concert on a
school night. She says that you allowed her brother to stay out just as late a few
weeks ago to practice with his band for an upcoming performance (your children
love music). Let’s assume the context makes it clear that she is trying to present you
with an argument. But what kind of argument? Is she trying to demonstrate that
allowing her to stay out late is a justifiable decision by reminding you that you were
happy with having made a similar decision in a similar situation? Is she trying to
& Katharina Stevens

Katharina.stevens@uleth.ca
1
University of Lethbridge, 4401 University Dr W, Lethbridge, AB T1K 6T5, Canada
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432 K. Stevens
argue that the decisions you have made about your children—whether or not they
are good decisions—give you reasons to repeat them later in similar situations? Or
maybe she is doing both? How should you react? How should you evaluate her
argument?
The fact that the decision to u was made in one situation is sometimes used as a
reason for making a decision to u in another, similar situation. This is called case-
to-case reasoning. In argumentation, an arguer may cite the decision to u from an
earlier situation as a premise in order to convince an interlocutor to make the
decision to u now, using case-to-case arguments. The above introductory questions
suggest that there are two types of case-to-case-arguments. On the one hand, an
arguer might use a case-to-case argument from parallel reasoning.1 On the other
hand, she might use an argument by precedent.2
Even though both arguments are based on an analogical comparison between two
cases, they are not the same. A case-to-case argument from parallel reasoning is
used to show that making the advocated decision to u in the current situation is as
justified as making the decision to u in the analogous situation. It supports the claim
that the decision should be made by showing that it is an independently correct
decision. By contrast, an argument by precedent is used to show that the advocated
decision to u should be made now just because the equivalent decision to u was in
fact made in the past. It supports the claim that the decision should be made by
presenting the mere existence of the past decision to u as a reason to decide to u
now.
A case-to-case argument from parallel reasoning relies on the assumption that the
past decision to u was justified and on the similarity of the two cases. It supports the
conclusion that the advocated decision should be made by showing that it is justified
too, independent of the existence of the past decision. By contrast, an argument by
precedent does not use the assumption that the past decision to u was justified. It
does not attempt to show that the advocated decision is justified independently of
the existence of the past decision. Instead, it supports the conclusion that the past
decision needs to be repeated even if it was wrong by relying only on the analogy
between the two cases and the mere existence of the past decision. As I will argue in
Sect. 2, the assumption that these two are relevant for the present decision needs to
be supported by a second-order reason.3
1
I have chosen this term after the article by Woods and Hudak ‘‘By parity of reason’’ (1989). For an
explanation why I believe that this type of argument is a kind of argument by parallel reasoning, please
see Sect. 3.1.
2
This type of argument is named after binding precedents in common-law systems because I believe that
arguments using binding precedent in the common law are one example of the type of argument I am
describing here. For an explanation of the function and role of binding precedent and the difference
between binding and non-binding (persuasive) precedent in the common law, please see footnote 6.
3
An example of reasoning along the lines of this kind of argument in everyday situations might be
helpful here. Here is one that is especially embarrassing for the author: In one of my classes, I had
established cold-calling as a way to entice students to actually do the assigned reading. Every student
would, once in the term, be asked something about the reading and they would receive 5% of their grade
if they could show that they had read. The students did not know when they would be called, so they had a
reason to do all the readings, at least until they had done their cold-call. My mistake was made on the
second cold-call: the question about the reading appeared on the slide, a student raised their hand, and
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Case-to-Case Arguments 433
Despite the differences between the two kinds of arguments, it might be hard to
classify every-day uses of case-to-case arguments as either case-to-case arguments
from parallel reasoning or as arguments by precedent. One reason for this is that
arguers might not have either kind specifically in mind—or that they might have
intended to use both argument-types. I will argue that in some situations, this can be
a legitimate use of case-to-case arguments, and that arguers can either use both
types at once, or follow a disjunctive strategy. Another reason could be that the
difference between the argument types does not often appear in presentation: both
arguments use a past decision to u to show that a present decision to u should be
made, and both rely on the similarity between a situation in which the earlier
decision to u was made and the situation in which the arguer wants the decision to u
made now. The premises actually expressed when these arguments are used are
usually the fact that the decision was made and the claim that the situation in which
it was made is similar to the present situation. Conclusions are stated simply as the
claim that some specific decision should be made now.
This makes case-to-case arguments susceptible for miss-uses and miss-evalua-
tions. As I will discuss at the very end of this paper, unwary arguers might make—
and unwary interlocutors may be persuaded by—an argument that relies neither on a
legitimate reason for the relevance of the past decision, nor on a justified past
decision. This may lead, for example, to is/ought mistakes, or mistakes of ‘‘two
wrongs make a right’’. For this reason, it is important to gain a clear view of the
differences between the two kinds of case-to-case arguments both with respect to
their structure and their evaluation.
2 Treating Like Cases Alike: The Weak and The Strong Version
of a Principle
Often, when we use case-to-case arguments or reason from case to case, we rely on
our belief in the general validity of the principle that (relevantly) like cases should
be treated alike. We might unthinkingly assume that this principle supports the
legitimacy of all case-to-case arguments equally because it establishes that if a
decision to u was made in the past, then a decision to u should be made in similar
situations in the present (and into the future). In other words: We rely on the general
validity of the principle and assume that the (relevant) similarity between our
present case and a case decided in the past is always relevant for our decision in our
present case.4
Footnote 3 continued
without thinking I asked him to speak. This was undoubtedly the wrong decision: cold-calling works only
if it is not the students, but me who decides who has to answer the question. And the other students
immediately realized, and pointed out what this meant: even though the decision had been wrong, every
one of them would be in a relevantly similar situation if they raised their hands at later cold-calls. I would
have been in a horrible pickle had the student not immediately offered to forgo the so-earned 5% and to
be cold-called again at a later time.
4
I am here using a simple concept of relevance according to which the truth of a premise is relevant for a
conclusion if accepting the premise as true changes the certainty with which the conclusion or the belief
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434 K. Stevens
Case-to-case reasoning and case-to-case arguments do indeed have a close

relation to the principle that ‘‘like cases should be treated alike’’, which is widely
regarded as a valid principle. In The New Rhetoric, Perelman and Olbrechts-Tyteca
call this the rule of justice and treat it as the basis for a special kind of
argumentation (1969, p. 218). Frans van Eemeren and Bart Garrsen claim that the
rule of justice is the basis of all normative arguments by analogy (2014, p. 49;
Garrsen 2009). The principle that like cases should be treated alike is also often
presented as the basis of common-law reasoning and is used to justify the use of
binding precedent in common-law jurisdictions.5 According to the doctrine of
precedent, the fact that certain decisions were made in earlier cases is a reason to
make them again in similar later cases, independently of the correctness of the
earlier decision.6 However, in spite of its wide popularity, there is an ambiguity in
what we mean when we cite this principle. In the next section I will characterize this
ambiguity through what I see to be a weak and a strong reading of the principle. The
argument is that while the principle is universally valid on the weak reading, it is not
on the strong reading. As seen in the example above, arguments might be based on
the principle in either reading, and because this is so, there are two different kinds of
arguments: Case-to-case arguments from parallel reasoning rely on the weak
reading of the principle, while arguments by precedent rely on the strong reading.
can be accepted as true. Authors like Hitchcock (1992) and Sperber and Wilson (1986) have offered more
sophisticated definitions of relevance in argument and reasoning. But the definition I have chosen to
employ here has been adopted widely by argumentation theorists [see, e.g. the by-now classic textbook
Johnson and Blair (1977), Logical Self-Defense, p. 12ff.]. It may also lie at the core of the more
sophisticated definitions provided by these authors.
5
See, e.g. Waldron (2012). He wants to defend the doctrine of precedent on Rule of Law grounds. He
lists the principle to treat like cases alike among a number of reasons supporting the adoption of stare
decisis and binding precedent that are regularly discussed in addition to rule-of-law-reasons.
6
This is true for so-called binding precedent. Binding precedent is a precedent in a common-law system
which was decided in the same jurisdiction and within the same doctrine as the present case by a court
higher or as high as the present court, and which is similar with respect to every legally relevant aspect
(the two cases are the same from the legal point of view). In common-law jurisdictions, a binding
precedent has to be followed, whether or not the present court agrees with the decision in the precedent
case and even whether or not the decision in the precedent case was actually correct on the merits. A
judge may only decide not to follow binding precedent if she can either distinguish (by claiming that there
is a relevant difference between the cases); or if her court has the power to overrule and she finds the
conditions for overruling have been met. However, these conditions are most often very strict: the
precedent case’s decision has to be wrong in such a way that following the precedent would result in
extremely unjust outcomes. Otherwise, even a court with the power to overrule has to follow binding
precedent. (See, e.g. Schauer 2009, p. 37f.; Lamond 2016) There is also persuasive precedent. This kind
of precedent deals with a case relevantly similar to the case at hand, but because it does not fulfill one of
the conditions I have listed, it does provide a legally authoritative reason for the court—it does not need to
be followed. In persuasive precedent, the merit of the decision does play a role: If the court is convinced
by the reasoning in the persuasive precedent, it may decide to make the equivalent decision to it in its
present case. Because its decision creates a precedent itself, it thereby extends the reach of the precedent
beyond the reach it had before. (On analogy and extending the law see e.g. Canale and Tuzet 2014). For a
court with the power to overrule their own precedent (like for example the US supreme court), it is not
easy to say whether their own precedents are truly binding—this seems to depend on the standard for
overruling that the court applies (for a discussion of this problem with respect to the US supreme court,
see e.g. Kozel 2013). Unless otherwise stated, I will be talking about binding precedent where-ever I talk
about legal precedent throughout the paper.
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2.1 The Weak Reading of the Principle that Like Cases Should be Treated
Alike
The weak reading of the principle states that if u-ing is the right choice for one case,
then it is also the right choice for a case (relevantly) similar to it.7 On this reading,
the principle is simply a reformulation of the idea that reasons are general. If the
existence of some element e is a reason for u-ing in one situation, then it is a reason
for u-ing in general. Therefore, it is also such a reason in any other situation in
which e is present again (of course the two situations might otherwise differ, and so
whether one should actually u, all things considered, might also differ).
Accordingly, if u-ing was the right thing to do in one situation, and a second one
shares all the elements based on which u-ing was justified in the first, then a
justification for u-ing should also exist in the second.8 Read like this, the principle
simply points out that u-ing will be equally justified in two situations to which all
the same reasons apply and that the two situations should therefore receive
equivalent treatment. In this weak formulation, it is a universally valid principle, but
it does not provide a warrant to go from the mere fact that one situation has been
treated in one way to the conclusion that the other should also be treated in that way.
For the decision in the first situation might have been wrong. Then the similarity of
the two situations can at most be a reason to think that treating the second situation
in a similar fashion would also be wrong. The case for u-ing in one situation stands
and falls with the case for u-ing in the other. This rather basic insight has also been
pointed out by other authors (Adler 2007; Guarini 2004; Bermejo-Luque 2012).
In the weak reading, the principle only warrants the move from the assertion that
a source-case was treated by u-ing, to the claim that the target-case should be
treated by u-ing—if it can be asserted that u-ing in the source-case was justified.
The weak version of the principle that like cases should be treated alike cannot
support the legitimacy of case-to-case arguments by itself. It can only do so together
with the assumption that the decision to u in the source-case was the right or
justified decision. Therefore, it can only support case-to-case arguments from
parallel reasoning. These arguments, in addition to the premise that the two cases
are similar, also have a premise—or a background assumption9—stating that the
decision made in the source-case was the correct one.
7
That the two readings of the principles are different is not always clearly recognized by authors who
discuss the principle to treat like cases alike. For example: I think that Trudy Govier’s reading of the
principle when she introduces it in her textbook A Practical Study of Argument is the weak one, because
she refers to the correctness of the source-decision (Govier 2014, p. 320). But then, later, she talks about
treating like cases alike in the law, and seems to switch to a stronger reading of the principle. She cites the
reason that the law should treat everyone equally as a demand of formal justice without recognizing that
there is a difference between the two principles (Govier 2014, p. 321).
8
The weak version of the principle is what Levvis calls the ‘‘principle of relevant similarity’’ (Levvis
1991).
9
I avoid the possibly exhausting discussion of whether this—and the premises (assumptions) stating a
second-order reason that I introduce in the next section—play the role of missing premises or background
assumptions.
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436 K. Stevens
2.2 The Strong Version of the Principle that Like Cases Should be Treated
Alike
The principle is not always used only in this weak sense. It is sometimes used in a
stronger form to say that the mere fact that some case has been treated by u-ing is in
itself a reason to u again in similar cases.10 This is the version of the principle that
would be needed to show that arguments by precedent are generally legitimate.
Indeed, this stronger version of the principle that like cases should be treated alike is
presumably the one referred to in the law when it is used to justify the doctrine of
binding precedent. However, in this form, the principle seems to be justifying a
move from is to ought indiscriminately, which gives reason to doubt its validity.
Some legal philosophers have set out to determine whether the principle actually
does provide a justification for the adoption of the doctrine of precedent in the law
and they have regularly come to the conclusion that the strong version of the
principle does not have universal validity and therefore no independent justificatory
force (Strauss 2002; Marmor 2007; Alexander 1989).11
To elaborate: The problem with the strong version of the principle is that to
accept it would mean to accept that the mere performance of an all-things-
considered wrong action u would make u-ing less wrong. But the mere
performance of an action should not be able to alter its normative status. However,
an action can be performed or a decision can be made in circumstances that give rise
to additional normative reasons. For example, the decision might be made in such a
context that people form an expectation on its basis. Imagine, for example, a teacher
making a decision about one student while others are watching. The way the
students understand the role of the teacher might lead them to reasonably expect that
the same decisions will be made about them in similar cases. Another example is
one in which the past decision was made by someone who has broad practical
authority over the area in which the present person has to make a decision now, so
that she is not in a position to evaluate the authority’s decisions. Circumstances like
these might give rise to additional reasons why the mere fact that the decision to u
that was made in a similar earlier situation is a reason for making the decision to u
now.
Joseph Raz dedicated a portion of his work to the exploration of these kinds of
reasons and introduced the widely-used distinction between first- and second-order
reasons into the philosophy of practical reasoning and the philosophy of law. He
pointed out that in addition to first-order reasons weighing directly on the decision
whether to u, there are also second-order reasons for or against treating certain facts
as first-order reasons for or against u-ing (Raz 1975, p. 39f). For ease of expression,
10
Perelman seems to be aware that his and Olbrecht-Tyteca’s principle of justice does not always hold.
See Perelman (1980, pp. 89–90). Reidhav discusses the principle of justice, and its impact, in detail and
points out that it alone, without further premises, does not have any practical implications (2007,
chapter 3).
11
A reader might raise the objection that the demand for relevant similarities takes care of this problem,
claiming that only those similarities will be relevant that relate to the justification of the source decision.
Then the two argument types would reduce to each other. An answer to this objection can be found in
Sect. 3.2.
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I will adopt his vocabulary here. Reasons like, ‘people have formed expectations
that cases similar to a past case will be treated by u-ing’ can function as second-
order reasons. They do because they are reasons for treating the combination of the
mere fact that a past situation was treated by u-ing and the fact that it is similar to
the present situation as a reason for u-ing now.
The strong version of the principle to treat like cases alike does not hold absent
such additional second-order reasons. If it did, that would entail that the mere
making of a decision or performance of an act changes its normative status. Rather,
it holds only insofar as there are additional second-order reasons for treating like
cases alike in the context in which the decision has to be made. Therefore, the strong
version of the principle has no independent force.12
(To legal theorists, this is interesting because it means that the principle itself
cannot be used to justify the legal doctrine of precedent, according to which even
wrong decisions have to be followed in later cases. The doctrine of precedent must
be justified in a different way, for example via rule-of-law reasons. For present
purposes, it is interesting because it means that the strong version of the principle
that like cases should be treated alike is at most a stand-in. There is need for a
second-order reason that in this context, the mere fact that a source-case has been
treated by u-ing is a reason for treating a similar target-case by u-ing).
The universal validity of the strong version of the principle would be necessary to
show that arguments by precedent are legitimate arguments even absent additional
second-order reasons. However, that the principle holds in some specific context
itself needs to be justified. Therefore, the principle by itself does not support the
legitimacy of arguments by precedent. Rather, arguments by precedent are only
legitimate if they have an additional acceptable premise (or background assumption)
to the effect that there is a second-order reason for treating the combination of the
other two premises as relevant for the current decision.
12
Here, one of my reviewers made two interesting suggestions. First, they pointed out that it is possible
that case-based arguments from parallel reasoning might also sometimes rely, partially, on the following
second order reason: If a certain pattern of reasoning served us well in the past, then we can assume that it
will serve us well in the future. A case-based argument from parallel reasoning would then use the
existence of the justified source decision, the similarity of the cases and this second order reason to
support the conclusion that the equivalent decision should be made now. No reconstruction of the
argument used in the source case for the target case would be necessary, and the argument would have a
structure very similar to an argument by precedent with the added property of being based on a justified
source decision. This is one plausible description of how arguers might use and interlocutors might
understand this kind of argument. I think that another way is that the case-based argument from parallel
reasoning is used to show the cogency of a reasoning pattern which is then—with the help of analogical
mapping (see footnote 15) reconstructed in the target-case. In this case no second-order reason is needed.
The second interesting point my reviewer made is that many people have a preference to make consistent
decisions over time. The reviewer suggested that this might be a constantly present prima facie second
order reason to treat earlier decision as a reason to make the equivalent decision in similar situations now.
I think this thought is very interesting. Certainly, it is descriptively accurate to say that many or most
people prefer to remain consistent. If this preference is well grounded, then there would indeed always be
such a prima facie second order reason. However, this preference might be harmful as often as it is useful,
especially when it comes to (even slightly) wrong decisions. I do not want to commit myself here, but I do
think that the idea is worth considering. In any case, both suggestions point to the possibility that few
case-based arguments from parallel reasoning are purely case-based arguments from parallel reasoning.
Most such arguments might well be mixed forms. I deal with mixed forms in Sect. 4.2.
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438 K. Stevens
3 The Two Types of Case-to-Case Arguments and Relevant Similarities
So far, I have shown that both kinds of case-to-case arguments share a similar
structure. Both arguments rely on a premise stating that the decision to u was made
in a source-case, a similarity premise stating that source-case and target-case are
similar, and an additional (hidden or missing) premise or background assumption.
The main difference I have identified between the two kinds of arguments is the
content of the additional premise or background assumption. In case-to-case
arguments from parallel reasoning, it states that the decision in the source-case was
the right decision. In arguments by precedent, it states that there is an additional
second-order reason for treating the mere fact that the decision to u was made in the
source-case and that the two cases are similar as a reason to u in the target-case. But
is this the only difference? I argue that it is not. There is a further difference
between the two kinds of arguments concerning the relevance of the similarities
between the argument’s source- and target-case.
The topic of relevant similarities and differences looms large in the literature
about arguments by analogy.13 This is no surprise, given that any two things in the
world are going to be similar in some ways and different in others. In arguments by
analogy, arguers use the similarity of the two analogues to support the conclusion
that there is a further respect in which the analogues are similar—either a further
shared property, or the way in which the similarity should be treated or classified. It
is therefore of great importance to know exactly which similarities are supposed to
be the ones supporting this conclusion, i.e., which similarities are the relevant ones.
Presumably, that going to her concert is roughly as important to your daughter as
band practice was to your son, is a similarity between the two cases that is going to
be relevant. Presumably, the fact that your son was wearing sneakers when he asked
you, and that your daughter is wearing sneakers now, is not a relevant similarity.
Any account of argument by analogy has to face the problem of how those
evaluating such an argument can determine whether the similarities between the
analogues are relevant or not.
In his oft-cited paper ‘‘Argument by Analogy’’, Andre Juthe proposes an elegant
solution to this problem (Juthe 2005). Say that a similarity between a source-
analogue and a target-analogue in an analogy consists of an element e of the source
analogue and an equivalent element e* of the target analogue. An argument by
analogy supports the claim that there is a further similarity between the analogues.
This further similarity is between a known element s in the source analogue and an
equivalent element s* that we may now claim for the target analogue [Juthe calls
this the ‘‘Assigned-Predicate’’ (2005, p. 4)]. A similarity based on e and e* is
relevant for the argument if the possession of element e in the source analogue is
part of the determination of the element s in the source analogue. Juthe points out
that ‘‘part of the determination’’ is meant to be read widely: the determining relation
13
I think that the question of which similarities are relevant is the basis for the debate regarding whether
arguments by analogy include a missing a premise in the form of a conditional that lists the properties
possessed by both analogues. For contributions to this discussion see: (Govier 1989; Waller 2001; Guarini
2004; Shecaira 2013; Bermejo-Luque 2014).
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between e–en and s ‘‘can be any type of relation (including probable, causal,
epistemic, normative, evaluative, resultant or supervinient)’’ (Juthe 2005, p. 10).
Take our example from the beginning of the paper and assume that going to the
concert is roughly as important to your daughter as band practice was to your son.
Juthe’s account gives us a reason why this is a relevant similarity for your decision
whether your daughter should be allowed to stay out late. It is a relevant similarity
because it was relevant that band practice was important to your son for your
decision to allow him to stay out late. (At least this is so if the argument your
daughter was trying to present you with was a case-to-case argument from parallel
reasoning, see Sect. 3.2).
Juthe’s analysis of what makes a similarity relevant in arguments by analogy has
many advantages. For example, it is simple, straight-forward and intuitively
plausible.14 I think another major advantage is that it fits well with the still dominant
account of analogical reasoning as it has been proposed in the cognitive sciences by
theorists like Holoyak and Thagard.15 I will use his analysis of what makes a
14
For my purposes, this is an important virtue because the point I will be making in the next sections
about relevant similarities is rather modest, but can become very complicated if I do not have a simple
account of similarity-relevance to use. So far, I have tried to show that there are two different ways in
which the (relevant) similarity between two cases can itself be relevant for the decision that has to be
made in the target case. I was, therefore, not interested in the relevance of the similarities between the
analogues, but just in the relevance of the fact that the two are similar. Therefore, I did not need to engage
with the vast literature on relevance within an analogy. Now, all I want to argue is that the
difference between the two types of arguments with respect to why relevant similarity between the
analogues is relevant for the decision translates into a difference with respect to which similarities
between the source analogues will be relevant. I do not think that this point would change if I used a more
sophisticated account of the relevance of similarities between analogues, like for example the one
recently proposed by Macagno et al. (2017). However, presenting it in an accessible manner might then
become much more of a challenge.
15
Holoyak and Thagard propose a multi-constraint model of analogical reasoning (see, e.g. Holoyak and
Thagard (1989, 1995). See also Genter (1983), who proposes a very similar model). According to this
theory, analogical reasoning works through so-called analogical mapping. Mapping is the establishment
of correspondences between elements of the two analogues, the source analogue and the target analogue.
When a correspondence for an element of the source analogue is chosen, reasoners typically attempt to
fulfill so-called surface and structural constraints. First, to fulfill the surface constraint, they try to find
elements in the target-analogue that can be categorized under the same pre-established categories (the less
abstract the better) as the corresponding elements in the source analogue or that have similar perceptual
qualities (like shape, colour etc) (Holoyak and Thagard 1995, p. 26ff). However, the surface constraint is
much less important than the structural constraint (Holoyak and Thagard 1995, p. 29ff). According to this
constraint, every mapped element of the source analogue should have one and only one element in the
target analogue as a correspondent. In addition, if two elements stand in a certain relation in the source
analogue, the same relations should also exist in the target analogue between the two corresponding
elements. The better a mapping can correspond to these two constraints (but mainly to the structural
constraint), the more similar are the two analogues with respect to their mapped elements. All this fits
well with what Juthe says, but most important is that his theory of the relevance of similarities fits with
the purpose-constraint as Holoyak and Thagard propose it (e.g. Holoyak and Thagard 1995, p. 35ff). This
constraint determines which elements of the analogues become subject to attempted mappings. Analogies
are often drawn for a purpose, for example in order to solve a problem in a target analogue that had
existed and been solved before in the source-analogue, or in order to make an explanation or an argument.
It is then the purpose which is used to pick out the elements in the source-analogue that will be the object
of an attempted mapping. If the analogy is used to help solving a problem, for example, the reasoner will
attempt to map those elements of the source-analogue that played a role in solving the equivalent problem
for the source analogue.
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440 K. Stevens
similarity relevant in order to highlight the difference between case-to-case

arguments from parallel reasoning and arguments by precedent.
3.1 Relevant Similarities in Case-to-Case Arguments from Parallel

Reasoning
Case-to-case arguments from parallel reasoning are legitimated by the weak version
of the principle that like cases should be treated alike. This version of the principle
states that those cases should be treated alike to which the same reasons apply. In
addition, they rely on the assumption that the decision made in the source-case was
the correct decision. They are used to argue that the equivalent decision should be
made in the target-case by showing that this decision is also justified.
In these arguments, the element s and s* are the two decisions to u in the source-
and target-case respectively. Because the argument relies on a relationship of
justification, the elements e–en that determined the element s in the source-case are
those elements on the basis of which the decision to u was justified. Therefore, the
relevant similarities in these arguments will be those that have, as one of the two
corresponding elements, a property of the source-case on the basis of which the
decision to u was justified.
The two cases are relevantly similar for the purpose of a case-to-case argument
from parallel reasoning if the elements of the source-case that are necessary to
justify the decision to u have a corresponding element in the target-case. To
illustrate, assume that the argument your daughter was trying to make was supposed
to be a case-to-case argument from parallel reasoning. We can now determine what
is needed for the two situations to be relevantly similar: for those elements in the
situation around your son that were necessary to justify your decision to let him stay
out late, there are corresponding elements in the situation around your daughter.16
This analysis reveals why case-to-case arguments from parallel reasoning are a
kind of argument from parallel reasoning. These arguments were described by
Woods and Hudak (1989) and more recently by van Laar (2014).17 Arguments from
16
Importantly, I do not think that it is always the case that every element that contributed to the
justification of letting your son stay out late has to have an equivalent for your daughter. If the argument
for your decision about your son was very strong, but your daughter’s situation is missing an equivalent, it
is still possible that there are enough equivalents to establish a somewhat weaker argument for letting her
stay out late. (I thank my reviewer for a comment to this effect) In addition, I think that if the situation
around allowing your son had some element ea on the basis of which you added an independent premise
to the argument for letting him stay out late then it is possible that the argument can function even if there
is no equivalent element ea* in your daughter’s case. It can function if there is another, dissimilar element
eb in your daughter’s case on the basis of which another independent premise for letting her stay out late
can be found that lends at least as much additional weight to the argument as the element ea did in your
son’s case. In other words, the analogy might show that only one part of the justification for allowing your
son to stay out late also applies to your daughter, but that might be enough if there are additional
justifying elements in your daughter’s case.
17
In their paper ‘‘By Parity of Reason’’, Woods and Hudak claim that arguments by analogy in general
are arguments from parallel reasoning. Maurice A. Finnocchario rejects this claim emphatically
(Finocchario 2013, p. 82) and van Laar (2014) limits it by pointing out that only some normative
arguments by analogy are arguments by parallel reasoning. I do think that arguments by parallel reasoning
are arguments by analogy, but stand with van Laar and his analysis, according to which there are also
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parallel reasoning are based on the premises that there is a good or acceptable ar-
gument A for u-ing with respect to the source analogue and that source and target
are similar. They are used to support the conclusion that u-ing is the right thing to
do in the target analogue because a parallel argument A* can be construed in the
target analogue, one that justifies u-ing.
3.2 Relevant Similarities in Arguments by Precedent
In case-to-case arguments from parallel reasoning, the relevance of the similarities

between the two cases is determined by referring to the justification for the decision
to u in the source-case. For arguments by precedent this is not an option because
these arguments use past decisions to u in order to argue for a present decision to u
independently of whether the past decision was justified. So, arguments by
precedent are used at least sometimes when there is no (sufficient) justification for
u-ing in the source-case (and when no justification for u-ing in the target-case could
be found that functions independently of the combined existence of the source-case
and the second-order reason). Nonetheless, arguments by precedent do rely on the
acceptability of the premise that the two cases are alike, so the relevance of the
similarities between the two cases must somehow be evaluated.
It would be possible to try to amend the method of referring to justification when
determining whether a similarity is relevant or not. We might say that those
similarities are relevant which have, as one corresponding element, those elements
e–en that are the basis for the best available justification for the decision to u in the
source-case. That might work even if this justification did not suffice all-things
considered. Alternatively, we might say that those similarities are relevant which
have, as one corresponding element, one of those elements e–en that the decision-
maker in the source-case thought justified the decision to u at the time.
I do not think that we should construct an account of what a relevant similarity is
in the context of an argument by precedent by amending the account we have for
case-to-case arguments from parallel reasoning. For arguments by precedent, it is
misguided to try to formulate a single method for identifying relevant similarities.
Instead, which similarities are going to be relevant within the context of an
argument by precedent depends on the content of the second-order reason on which
the argument relies. Compare the following two examples:
First, consider the most iconic kind of argument by precedent, the argument from
legal, binding precedent in common-law jurisdictions.18 According to the (author-
itative) doctrine of precedent, the decision made in a past case authoritatively binds
a later court to make the equivalent decision in a later case if the cases are legally
the same. Legal sameness is identified by the idea that the two cases have to be
plenty of other kinds of arguments by analogy. Interestingly, Woods and Hudak, as well as Finnocchario
point out that arguments from parallel reasoning are really meta-arguments: arguments that show that two
arguments (lines of reasoning) of the same structure can be formed for two different cases—and that
therefore if one argument is cogent, then the other one will be too. This would mean that case-to-case
arguments from parallel reasoning have a meta-argumentative aspect.
18
Importantly, I am referring to binding, not persuasive precedent. See footnote 6.
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442 K. Stevens
similar in legally relevant respects and have no legally relevant differences that
would justify distinguishing the cases. In this context, the reason for the legitimacy
of arguments by precedent is the existence of an authoritative rule. This rule
determines that judges are bound by the decision of earlier judges, as they are laid
down in precedent opinions (specifically the holding of these opinions), with respect
to cases that are legally the same.19 Therefore, similarities between two cases will
be relevant that have, as one corresponding element, those elements e–en that are
legally relevant in the precedent case. The precedent judge has the authority to
determine which elements of the precedent case are legally relevant. She does so by
citing them in the precedent opinion as the factors on the basis of which the
precedent decision was made. These are also the factors that lawyers aim to identify
when they search for the case’s ratio decidendi or holding (Schauer 2009, p. 54ff).20
It is important to see that these elements might be, but do not have to be those
elements that together make the best case for the decision. They also might be, but
do not have to be, those elements on the basis of which the precedent judge really
believed that the decision was justified.21 Rather, they are the factors that the
precedent judge decided to authoritatively determine as the factors on the basis of
which the decision was made in the opinion. This is so because the reason behind
19
Of course, there are further background reasons needed to justify the existence of this rule. But insofar
as judges are bound by the doctrine of precedent, they need not refer to these background reasons when
they evaluate arguments by precedent. They merely need to refer to the existence of the rule, and the fact
that the rule is valid. Indeed, that it becomes unnecessary to refer to all relevant background consideration
when making a decision is one of the great advantages of having rules in the first place (see, e.g. Schauer
1991, p. 145ff). This is vital, among other reasons because there is no consensus between authors as to
why exactly the doctrine of stare decisis in the law is justified. Rule of Law reasons, reasons of efficiency,
and reasons of predictability are regularly cited, but the lists of reasons are not always the same, and there
is disagreement about the relative importance of the reasons (see, e.g. Schauer 1987; Duxbury 2008,
Chapter 5; Sherwin 1999; Waldron 2012).
20
There is a rather drawn out discussion in the common-law literature over whether reasoning with
binding precedent is analogical reasoning at all or whether it simply consists of the identification of the
ratio or holding, which is then used as the major premise in a deductive inference. The discussion
resembles that about the question whether all arguments by analogy can be reduced to deductive
inferences (I have alluded to this discussion in footnote 13). One of the most important arguments against
rule-account is that often, opinions do not deliver a ratio or holding that is clear enough to be used as a
rule. I have participated in this discussion, arguing that either kind of reasoning is possible, but analogical
reasoning with (binding) precedent has definite advantages (Stevens, forthcoming). For an impression of
this discussion, the reader may look to the following key-contributions: (On the rule-side: Alexander
(1989), Alexander and Sherwin (2008), Schauer (2008, 2009); on the analogy-side: Levi (1949), Postema
(2007), Rigoni (2014), Hunter (2001), Levenbook (2000); against rules, but not for analogies: Lamond
(2005)).
21
Imagine here a judge, sitting over case (let’s say an immigration case), who wants to make a decision
based on her deep-seated belief in some principle that, however, has not been integrated into the law of
her country yet (e.g. she believes that people should be able to acquire a visa if they have a deep and
sustained emotional commitment to a citizen who is their boyfriend or girlfriend). Instead of citing her
actual reason for making her decision in her opinion, she draws together various legal doctrines none of
which she is especially fond of (maybe a doctrine that states that immigrants with certain professions—
doctors or teachers—will be given preferred treatment), but which lead to the decision she prefers. Now it
is not the factor that made her preferred principle applicable that needs to have an equivalent in later
cases, but instead those factors that made the legal doctrines she cited applicable.
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the legitimacy of these arguments by precedent is one that gives authority to

precedent as it is documented in judicial opinions.22
Contrast this with another example. Say that the second-order reason for treating
the existence of a past decision to u in a similar case as a reason for u-ing again is
that the decision to u caused expectations. Imagine you are in teaching position of
some kind and have recently allowed a student to hand in a paper two weeks late.
Through the channels of gossip, you knew that the student was dealing with some
significant personal problems. So, when he broke out in tears, your heart of stone
was softened. If your spouse would ask you to justify your decision, you would say
that the significant personal problems the student was going through were
debilitating. In fact, they were just as debilitating as any sickness, and sickness is
a good—and institutionally recognized— reason to grant extensions. But because
you are not even really supposed to know about the personal problems, you have to
keep these reasons to yourself in your official capacity. Now, another student comes
to you and asks for an extension. Like many students every year, she explains that
she is simply overwhelmed with work and starts to cry. And she brings up your
earlier decision.
Here, if the argument by precedent is legitimate at all, it has to be on the basis of
the reason that your earlier decision created expectations in your other students.
How do you determine relevant similarity now? According to Juthe’s account of
relevant similarity in arguments by analogy, you should look for those elements e–en
in the precedent case that determined your decision. In case-to-case arguments from
parallel reasoning, the relation of determination is one of justification. In legal,
binding precedents, this relation was one of authoritative determination of relevance
(that the precedent judge authoritatively determined the set of elements to be the
relevant elements for the precedent decision). What is the relation here? Your
students surely did not form expectations that take into account features of the
22
My analysis of relevant similarity for reasoning by precedent in the law seems considerably different
from that of Douglas Walton. He argues that we should think of the relevant similarities in arguments by
precedents (and by analogy in general) as the similarity between story-schemes that can be applied to both
the source- and the target-case (we find a similar idea in Neil MacCormick 2005, p. 214ff). I do not deny
that story-schemes play a role in some arguments by analogy. However, I do not think that this is a fitting
general analysis of arguments by analogy or by binding precedent in the law. Story-schemes represent the
sequence of events for a certain situation or case. The sequence of events is, however, not always relevant
with respect to a decision or conclusion. I agree with Andre Juthe in that there is no reason to think that
story-schemes and sequences of events are always the relevant elements in source-analogues (Juthe
discusses this in an unpublished manuscript). It should be noted that in his 2012 paper, Walton seems to
extend his idea of what belongs into a story scheme: Story schemes also include the mentioning of
important properties of the objects and actors and the possible consequences of events, as well as
evaluative judgements, classifications, etc. etc. However, with story-schemes so extended, I am not sure
how Walton’s idea is any different from Juthe’s idea. Further, with story-schemes extended in such a
manner, I am not sure whether referring to them still has the potential of solving the relevance-problem.
For, a story so extended could theoretically include any element of the source analogue and what should
be included in the story-scheme comes down to the relevance of the source-elements for the Juthean
assigned predicate (Walton 2012). What Walton’s story-scheme approach might add is that stories are
usually evaluated with respect to their coherence and plausibility for our everyday understanding of how
the world usually works. This might contribute to the evaluation of arguments by analogy because it
might be worthwhile to ask whether understanding the target-analogue as similar to the source-analogue
generated a plausible understanding of the target analogue. But this, again, can be done without reference
to stories.
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precedent case which they do not know about, like that the earlier student had
significant personal problems, so it cannot be justification. And you did not produce
anything remotely similar to a judicial opinion. Your students formed expectations
about cases that are similar to the way they perceived the precedent case. Now, you
might want to limit the applicability of this second-order reason to expectations
formed on the basis of a reasonable perception of the precedent case: the student has
to have a reasonable, but not necessarily an accurate, understanding of which
elements of the precedent case where relevant for your decision. It might be—and in
practice often is—quite hard to work out what these features are. Important,
however, is that you cannot expect of the student to form her expectations to get an
extension only if she, too, has significant personal problems. This is so because she
could not have known that the student in the precedent case had these kinds of
problems. Arguments by precedent may be legitimated through the existence of
expectations caused by the earlier decision. Then, the relevance of similarities has to
be determined by identifying those elements of the precedent case that the
expectation-former would (reasonably) have perceived as relevant for the precedent
decision.
I think this shows that for arguments by precedent, it is implausible to think that
there could be one unified method for determining which similarities between the
cases are the relevant similarities. Arguments by precedent rely on second-order
reasons to legitimate treating the fact that a decision to u was made as a reason that a
decision to u should be made in another case. It is on the basis of these second-order
reasons that the similarity between the cases is relevant for the decision in the later case
at all. As such, it should not be surprising that the nature of the applicable second-order
reason plays a role in determining which similarities are the relevant ones.
4 The Evaluation of Case-to-Case Arguments
One of the most widely used methods for representing argument types and guiding
their evaluation is the formulation of argument schemes, which represent patterns of
reasoning accompanied by associated critical questions. The representation of the
pattern of reasoning shows the structure of a type of argument, while the critical
questions represent considerations which often lead to important objections against
this specific type of argument.23 However, the attempt to formulate an argument
23
This is the method proposed in Walton et al. (2008). To illustrate, here is an argument scheme for
argument by expert opinion:
Major Premise: Source E is an expert in subject domain S containing proposition A.
Minor Premise: E asserts that proposition A is true (false).
Conclusion: A is true (false).
1: Expertise Question: How credible is E as an expert source?
2: Field Question: Is E an expert in the field that A is in?
3: Opinion question: What did E assert that implies A?
4: Trustworthiness Question: Is E personally reliable as a source?
5: Consistency Question: Is A consistent with what other experts assent?
6. Backup Evidence Question: Is E‘s assertion based on evidence? (Walton et al. 2008, p. 310).
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scheme for case-to-case arguments immediately runs into a problem. As I

mentioned in the first section, the differences between the two kinds of case-to-
case arguments often do not make for a difference in argument presentation. That
the presentation of arguments by analogy is unrevealing is common to arguments by
analogy in general. In a recent paper, Douglas Walton has defended the idea that we
need two argument schemes for the basic argument by analogy instead of one
(Walton 2014, p. 38). The first is used to recognize arguments by analogy when they
are used ‘‘in the wild’’, so to speak:
Similarity Premise: Generally, case C1 is similar to case C2.
Base Premise: A is true (false) in case C1.
Conclusion: A is true (false) in case C2.
The second scheme is supposed to guide a deeper analysis and evaluation of the
argument, and Walton proposes using the scheme introduced by P.J. Hurley (but
also cites a version from I.M Copi and C. Cohen, as well as the scheme Guarini
proposed):
Entity A has attributes a, b, c and z.
Entity B has attributes a, b, c.
Therefore, entity B probably has z also.
I think that Walton’s first scheme need only be altered marginally to represent the
form in which we usually encounter case-to-case arguments:
Generally, case C1 is similar to case C2.
The decision to u was made in C1.
The decision to u should be made in C2.24
However, in spite of the two arguments often looking the same when they are
presented, they are quite different. Above, I dedicated two sections to the
24
In Walton, Reed and Macagno we find argument schemes for practical reasoning by analogy as well as
for reasoning by precedent. But both schemes are of limited usefulness. The scheme from practical
reasoning by analogy could at most be used for case-to-case arguments from parallel reasoning as they
have been described in this paper. This is so because it contains a reference to the correctness of an action
in the source analogue in one of the premises and is therefore clearly under-inclusive:
Base Premise: The right thing to do in S1 was to carry out action x.

Similarity Premise: S2 is similar to S1.
Conclusion: Therefore, the right thing to do in S2 is carry out x. (Walton et al. 2008, p. 316)
The scheme for argument by precedent seems to be restricted for arguments by precedent that refer to an
established rule. These arguments are a subset of what I describe as arguments by precedent here because
the existence of a rule can serve as a second order reason. But Walton, Reed and Macagno do not show
the role that the rule plays as a second order reason for treating the similarity between the cases as
relevant. (Walton et al. 2008, p. 72/344, see also the scheme for argument by precedent in Walton 2010).
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differences between the two kinds of case-to-case arguments. I will now argue that
these differences have important implications for the way in which case-to-case
arguments have to be evaluated. Therefore, it is important to represent these
differences in an argument scheme or schemes for case-to-case arguments.
4.1 Differences in Evaluation
Four kinds of considerations for the evaluation of arguments by analogy are

repeatedly suggested in textbooks and scholarly papers.25 The first three are
summed up nicely by Leo Groarke, Frederick Little, and Christopher Tindale in the
textbook Good Reasoning Matters:
‘‘A good argument by analogy supports a conclusion about Y by pointing out
(1) that it is true of some X, (2) that Y is similar to X in sufficient relevant
respects, and (3) that X and Y are not relevantly dissimilar. A good counter-
argument to analogy shows that one or more of the criteria for a strong
argument by analogy cannot be satisfied.’’ (2004, p. 240)26
(1) Is the Conclusion True in the Source-case?
I am here interested in case-to-case arguments, and these arguments are practical

and used to support a premise about what should be done. The question whether the
conclusion is true in the source-case translates into the question whether the
decision was in fact made in the source-case. However, this question is uninteresting
in both arguments. Given that case-to-case arguments from parallel reasoning rely
on the fact that the source-decision was justified, the question with respect to them
should instead be whether the decision was justified in the source-case. This
question is important to ask when it comes to case-to-case arguments from parallel
reasoning, but it is not important to ask this question when dealing with arguments
by precedent. After all, arguments by precedent rely on second-order reasons for
treating the decision to u in the source-case as a reason for deciding to u again in a
similar target-case. It does not matter whether that decision was justified in the
source-case. So instead of asking whether the decision to u in the source-case was
correct, the evaluator should ask whether there is a second-order reason that
legitimizes the argument by precedent. This means that there is at least one
completely different critical question depending on which kind of case-to-case
argument is being evaluated.
A somewhat related point is this: it might be the case that the strength of a case-
to-case argument from parallel reasoning is somewhat connected to the strength of
the justification as it was applied in the source-case—I am not entirely sure.
25
Here I use Groarke and Tindale (2004). See also, Vaughnn and McDonald (2013) and Walton (2014).
26
I do not mean to claim that these are all the possibly helpful critical question for the evaluation of
arguments by analogy. I do think, however, that these are the most important questions when it comes to
the distinction between the two argument types. Andre Juthe offers a list of further critical question in the
unpublished manuscript of his dissertation on the topic of argument by analogy.
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However, I think that the argument for making the decision to u in the target-case
could be either weaker or stronger than the argument for making the decision to u
was in the source-case. This is so because an element e1* in the target-case might be
a better or worse basis for a premise of a (structurally) same argument than the
equivalent element e1 was in the source-case.27 I do not, however, see a way in
which an argument from precedent can ever be stronger than the second-order
reason that legitimates it. Take, for example, the second-order reason that
expectations exist that cases similar to the source-case will be treated by deciding
to u because the source-case was treated by u-ing. Imagine the decision to u was
somewhat wrong in the source-case. The worse the analogy between the cases, the
weaker the argument, the less well justified the expectation that the target-case will
be treated by u-ing. However, even a perfect analogy between the two cases could
not justify giving the argument more weight than should be given to the expectation
itself. This is because it is the existence of an expectation—not something about the
content of the cases themselves—that legitimizes the argument in the first place.
(2) Are the Two Cases Similar in Sufficient Relevant Respects?
The question of whether there are the right kinds of similarities, and enough of
them, is of course important for any argument that employs an analogy, including
both kinds of case-to-case arguments. But, under what circumstances is the answer
to these questions affirmative? As I argued in Sect. 3, which similarities between
two cases are relevant might differ depending on whether the argument is a case-to-
case argument from parallel reasoning or whether it is an argument from precedent.
It is important to keep this in mind when the question is asked. For case-to-case
arguments from parallel reasoning, the two cases will likely have to be similar with
respect to all or almost all the elements e1–en that were necessary for the
justification of the decision in the source-case.28 For arguments by precedent, on the
other hand, which similarities are relevant, and whether there are sufficient relevant
similarities, will depend on the kind of second-order reason that legitimizes the
argument. To return to our two examples: arguments from binding, legal precedent
will need a similarity for every element that could be counted as part of the
precedents ratio decidendi or holding. But things are different for arguments by
precedent that rely on the existence of expectations. Here, it might be enough that
the two cases share enough similarities that a reasonable person would be led to
believe that they would be treated in the same way.29
27
This might be the case because these arguments have a meta-argumentative aspect: the argument is
used not to show that the decision to u in the past case justifies the decision to u now. Rather it is
supposed to show that there is a justification for deciding to u now—because all the elements e1*–en*
necessary for a justification just like the one in the past case are available.
28
See footnote 16 for a possible exception to this rule-of-thumb.
29
I am here assuming that an affirmative answer to the question of whether there are sufficient relevant
similarities between the two cases does not make the question whether there are relevant differences
uninteresting. This is supposed to reflect the way in which everyday arguers seem to often treat arguments
by analogy: they reject certain analogies off hand because they do not see a relevant similarity between
the analogues—and treat others as worthy of consideration but ultimately unconvincing because they can
come up with some relevant difference. We also find this in the law: some precedents are simply not
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(3) Are there Relevant Dissimilarities/Differences Between the Two Cases?
The question of whether there are any relevant differences between the two analogues
is, just like the question about similarities, one that will be important for any argument
that relies on an analogy. Relevant differences can be divided into two groups. One
kind of relevant difference is the absence of a relevant similarity. If an element e1 was a
necessary part of the determination of the decision to u in the source-case, then that
there is no corresponding element e1* in the target-case constitutes a relevant
difference. For these differences, the same considerations as for relevant similarities
can be applied when comparing the two kinds of case-to-case arguments. However,
this is likely not the kind of difference an evaluator would be after if she was
considering the question about relevant differences. A difference of this kind would
have influenced the evaluator’s assessment of the argument at the stage of asking
whether the two cases have sufficient relevant similarities.
More likely, the kind of difference an evaluator will be after is the second kind of
difference: that the target-case has an additional element ex for which there is no
equivalent in the source-case, and which is the basis for a reason against making the
decision to u. I am not sure whether there is any important implication of the
differences between the two kinds of case-to-case arguments to look out for here. It
might be worthwhile to consider that where the second-order reason legitimating an
argument by precedent refers to an expectation, the kinds of differences based on
which the argument can be rejected might be limited. It might be dubious to reject
the argument based on a difference the importance of which is to hard to understand
for the person who formed the expectation.
(4) Are there Alternative Source Analogues that can Serve in Arguments with a
Different, Incompatible Conclusion?
There is also the question of whether there is an equally good or better source analogue
available from which an analogy can be constructed that will serve for an argument
with a different, incompatible conclusion.30 This question will be helpful in the
evaluation of either kind of case-to-case argument. Nonetheless, I should point out that
it might be an especially interesting question where an argument by precedent cites a
source-case in which the decision to u was clearly wrong. Even if such an argument by
precedent relies on a valid second-order reason and provides reason to u in the target-
case, the same source-analogue may sometimes also be used in a counter-argument by
case-to-case analogy. Where the decision to u was clearly wrong in the source-case
and the two cases are relevantly similar, an argument may be construed that the
decision to u would also be wrong in the target-case. If I am right, then the argument by
precedent cannot be weightier than the second-order reason that legitimizes it. Which
applicable because the present case lacks a similarity to one of the elements cited in the holding of the
precedent case. Others are applicable, but can be distinguished because the present case has some element
that is the basis for a relevant difference—even though the present case has similarities to all the elements
cited in the holding of the precedent case.
30
This consideration gets mentioned for example by Walton (2014 p. 25) and Govier (2014, p. 338).
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of the two case-to-case arguments is stronger would depend on whether the second-
order reason legitimizing the argument by precedent is stronger than the reason based
on the wrongness of the past decision.
However, it is very important to keep in mind that this will not work with all
arguments by precedent. Legal arguments by binding precedent, for example, are
legitimated by an authoritative rule that prohibits judges from taking into account the
wrongness of the precedent decisions (see, e.g. Schauer 2009; Lamond 2005, 2016).
In this section I have argued that the difference between the two types of case-to-case
arguments should lead to one completely different critical question for each argument. In
addition, the conditions under which the other three questions can be answered
satisfactorily are different with respect to the two types of argument. This is especially true
for the question about relevant similarities. These differences in evaluation, together with
the differences between the structures of the two kinds of arguments, speak for establishing
two different argument-schemes with two different sets of critical questions. Each of these
argument-schemes is completed with their additional premise (or background assump-
tion). I decided, however, not to use the term ‘‘second order reason’’ in the argument
scheme for the argument by precedent in order to avoid confusion among users who might
not be familiar with Raz’ terminology.
Case-to-case Argument from Parallel Reasoning Argument by Precedent

(P1) Generally, case C1 is similar to case C2 (P1) Generally, case C1 is similar to case C2
(P2) The decision to u was made in C1 (P2) The decision to u was made in C1
(P3) The decision to u was justified in C1 (P3) Treating the existence of the decision to u in
(C) The decision to u should be made in C2 C1 as a reason for deciding to u in similar cases
is justified
(Q1) How was the decision to u justified in C1?
(C) The decision to u should be made in C2
(Q2) Are the two cases sufficiently relevantly
similar with respect to the elements that justified (Q1) What is the justification for treating the
the decision in C1? existence of the decision to u in C1 as a reason
for deciding to u in similar cases?
(Q3) What might be relevant differences between
C1 and C2? (Q2) Are the two cases sufficiently relevantly
similar with respect to the elements in C1 picked
(Q4) Are there alternative source analogues that out by the justification?
can serve in arguments with a different,
incompatible conclusion? (Q3) What might be relevant differences between
C1 and C2?
(Q4) Are there alternative source analogues that
can serve in arguments with a different,
incompatible conclusion?
4.2 A Complication: Mixed Uses of Case-to-Case Arguments
It seems intuitive and attractive to provide two argument schemes for two different
types of argument. It allows a neat and tidy distinction between the arguments,
fitting each one of them with their own set of critical questions. In addition,
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450 K. Stevens
including the necessary background assumptions as premises draws attention to the

idea that the mere fact that a decision to u was made and that the two cases are
similar is not enough. There also has to be either the assumption (or premise) that
the decision was right, or the assumption (or premise) that there is some second-
order reason legitimizing the argument.
For these reasons, providing two argument schemes is a good solution for those
who want to discuss these kinds of argument theoretically, or for those who want to
construct one or the other kind of argument. Nonetheless, I think that this way of
presenting case-to-case arguments might not be most helpful in practice—for
example for students who need to use and evaluate these arguments ‘‘in the wild’’.
One reason, as has already been discussed, is because case-to-case arguments are
often presented without any distinguishing markers. So, it might be more helpful to
produce a scheme that can guide us through the evaluation of an argument in the
form in which it will most likely be encountered.
There is also a second, equally important reason against constructing two
separate schemes for each type of case-to-case argument. From personal experience,
I am convinced that arguers are often not really trying to advance one kind of
argument rather than the other. This might be because they are not sure which of the
two case-to-case arguments they are using, or maybe because they are not aware
that there are two different kinds. In these cases, spelling out the differences in two
argument schemes could help. But, there is also the possibility that they might be
trying to use both arguments are once.
There are two ways in which arguers might attempt to use a mixture of both
argument forms when they cite a past decision to u in order to argue for a present
decision to u. First, they might be following a disjunctive strategy. Think back to the
example of your daughter from the very beginning of the paper. There, your daughter
might have assumed that you still regard the past decision about her brother as justified
and will therefore be convinced that allowing her to stay out late is justified too. At the
same time, she might hope that if this strategy fails, you will find that you have to
acknowledge the relevance of your past decision about her brother. For example, you
might now think that allowing your children to stay out late on school nights is a bad
idea. However, you might have adopted a parenting-policy to treat your children in the
same way wherever you can. Second, she might have intended to use both arguments in
coordination. She might be aware that when it came to making the decision about her
brother, you were very much on the fence about letting him stay out late and only just
gave in. She might hope that citing the past decision about her brother will do two
things simultaneously: It will remind you of all the reasons speaking for the decision
that also apply in her case through a case-to-case argument from parallel reasoning and
it will add an additional reason for allowing her to stay out late through an argument by
precedent. This would have the effect that the additional reason through the argument
by precedent would raise your burden of proof. Now you would have to produce
weightier reasons for the wrongness of the advocated decision than you would have
absent the past decision.31
31
I think that this is what likely happens when past cases are used in the law not as binding but instead as
persuasive precedent. Persuasive precedents are cases that are legally similar to the case at hand, but are
123
These kinds of mixed strategies are not uncommon, especially where people use
case-to-case arguments when they are not entirely sure how the decider stands in
relation to the past decision—or where they are not entirely sure whether the past
decision was justified in the end, all things considered. I also think that these mixed
strategies are not illegitimate. Insofar as your daughter really does believe that her
case is as good as her brothers and that there is an applicable second-order reason,
she has every right to use the force of both arguments. More than that. We might
argue that an evaluator who really wants to know whether a case-to-case argument
gives her any kind of reason to make the advocated decision should always run
through the evaluation of both kinds of arguments.
I think this is reason enough to formulate an additional argument scheme that
represents how case-to-case arguments will usually be encountered in the wild. This
scheme offers a set of critical questions that guides arguers through an evaluation
for arguments of each type:
Argument Scheme for Case-to-case Arguments
(C1) Generally, case C1 is similar to case C2.
Base Premise: The decision to u was made in C1.
Conclusion: The decision to u should be made in C2.
(Q1) Was the decision to u justified in case C1- and how?
(Q1a) If ‘‘yes’’ for 1): Are the two cases sufficiently relevantly similar with
respect to the elements that justified the decision in C1?
(Q2) Is there a justification for treating the existence of the decision to u in C1 as
a reason for deciding to u in similar cases—and what is it?
(Q2a) If ‘‘yes’’ for 2): Are the two cases sufficiently relevantly similar with
respect to the elements in C1 picked out by the justification?
(Q3) What might be relevant differences between C1 and C2?
(Q4) Are there alternative source analogues that can serve in arguments with a
different, incompatible conclusion?
5 Conclusion: Miss-Uses, Miss-Evaluations, and the Importance

of Keeping the Distinction in Mind
In a paper on the possible reasons why arguments by expert opinion are often miss-
evaluated and taken to be stronger than they really are, Walton and Koszowy (2016)
suggest that this might be because arguments from expert opinion look like
arguments from practical authority, especially where the expert suggests a course of
not binding. This can be the case because the present case lacks one of the elements that belong to the
holding or because the precedent case comes from another jurisdiction (e.g. was decided in a different
circuit). They can be rejected by the judge because she believes that the decision to u in the precedent
was wrong. However, the fact that they exist has some force because second-order reasons referring to the
coherence of the legal system apply (see Lamond 2010, 2014). Therefore, the present judge has to find
weightier reasons against deciding the case by u-ing than she would have if the precedent case did not
exist.
123
452 K. Stevens
action. So, a mere expert opinion is given additional force in the interlocutor’s mind
because practical authority is mistakenly attributed to the expert. I think that there
might be a similar problem for case-to-case arguments. The fact that they are rather
different, but that their differences are rarely reflected upon and that they often look
the same in presentation poses the risk of leading to miss-uses and miss-evaluations
(maybe even fallacious uses). The special problem here is that each kind of
argument relies on a background assumption, but does not need the background
assumption the other relies on. Arguments by precedent do not need a justified past
decision, and case-to-case arguments from parallel reasoning work fine without
additional second-order reasons. Of course, where there is neither a justified past
decision nor an applicable second-order reason, an argument that cites a past
decision to u in a similar case cannot justify u-ing in a present case. But legitimate
case-to-case arguments are so common, and the principle to treat like case alike has
such a good reputation, that it is easy to forget this. Where it is forgotten, arguers
and interlocutors might be seduced into committing an is/ought mistake (or fallacy),
or a mistake (or fallacy) of two wrongs make a right (Govier 2014, p. 341).
In addition, the similarity of the two kinds of arguments might lead to a miss-
judgement of the strength that a case-to-case argument has. For example, a case-to-
case argument from parallel reasoning might only show that a decision is merely as
permissible as an earlier decision was. An additional second-order reason would be
needed to argue further by precedent that the fact that the permissible decision was
actually made now constitutes a reason to think that the decision has to be made.
Confusing the two arguments can lead interlocutors into taking on duties they would
not have to take on if the distinction was clear to them.32 Alternatively, that a case-
to-case argument works on the basis of a second-order reason referring to
expectations might distract an interlocutor. She might not give adequate weight to
the fact that the precedent decision turned out to be quite wrong, and that the harm
in repeating it might outweigh the harm in disappointing reasonably formed
expectations.
Finally, the fact that the two arguments look so similar and that people are not
often inclined to look closely at the exact kind of argument that is being advanced,
can be abused. Imagine a setting where interlocutors have made a bad past decision
and are under scrutiny by an audience: Your daughter is asking you to stay out late
while you are having coffee with your judgemental and perfect-at-parenting
neighbour. She knows that you will find the advocated decision wrong—you
expressly regretted your decision to let her brother stay out late because it had all
kinds of ill effects. So she knows that you will not think of letting her stay out late as
a good idea. She also knows that there is no strong-enough second order reason:
while you do believe that treating your children equally is fair, you do not make a
policy out of repeating past mistakes. Nonetheless she asks, and cites your decision
about her brother right in front of your neighbour. And it works—you let her stay
out late. Why did her strategy work even though you think letting her (or her brother
32
My father fell into this trap when he made the mistake of agreeing to pick my sister up late at night at a
friend’s house. He suddenly found himself frequently waiting for his daughters to be ready to come home
until deep into the night.
123
before her) stay out late is wrong, and even though there is no sufficiently strong
second order reason available? It worked because in order to reject the case-to-case
argument altogether, you would have to reject its possible form as a case-to-case
argument from parallel reasoning in front of your judgemental neighbour. And that
would involve admitting that you made a bad decision about your son.
Making the case-to-case argument in circumstances like these serves the purpose
of bringing up a past decision and putting the interlocutor before a choice: either she
makes the decision advocated by the arguer now or she admits a wrong decision in
the past. Where admitting to wrong decisions is associated with a loss of face (your
neighbour decides you are a bad parent and tells everyone about it) making such an
argument can amount to choosing coercion.33 This coercion works because the
threat of loss of face does supply the interlocutor with a motivation to treat the
existence of the past decision and the similarity of the cases as a reason for repeating
that decision now. It is a bad, coercive motivation that takes the place of a valid
second-order reason in a twisted version of an argument by precedent. The audience
is convinced that a case-to-case argument from parallel reasoning was given (your
neighbour thinks your daughter just demonstrates that you yourself think it is a good
idea to let her stay out late), when in fact a twisted kind of argument by precedent
was operating (your daughter uses your fear of the judgemental nature of your
neighbour to make you repeat a decision she knows you think was bad). Using a
case-to-case argument in this way would probably deserve to be called fallacious.
All these examples of ways in which the similarity of the two different kinds of
case-to-case arguments can be misleading show that it is important to have a robust
understanding of their differences. Not every argument in which a decision is
advocated by citing a past decision in a similar case is the same. This paper is an
attempt at bringing the important differences into the foreground.
References
Adler, J.E. 2007. Asymmetrical Analogical Arguments. Argumentation 21: 83–92.
Alexander, Larry. 1989. Constrained by Precedent. Southern California Law Review 63(1): 1–64.
Alexander, Larry, and Emily Sherwin. 2008. Demystifying Legal Reasoning. New York: Cambridge
University Press.
Bermejo-Luque, Lilian. 2012. A Unitary Schema for Arguments by Analogy. Informal Logic 32(1): 1–24.
Bermejo-Luque, Lilian. 2014. Deduction Without Dogmas: The Case of Moral Analogical Argumen-
tation. Informal Logic 34(3): 311–336.
Canale, D., and G. Tuzet. 2014. Analogy and Interpretation in Legal Argumentation. In Systematic
Approaches to Argument by Analogy, ed. Henrique Jales Ribeiro, 227–242. Heidelberg, New York,
Dortrecht, London: Springer.
Duxbury, Neil. 2008. The Nature and Authority of Precedent. Cambridge: Cambridge University Press.
Finocchario, M.A. 2013. Meta-Argumenation, An Approach to Logic and Argumentation Theory.London:
College Publications.
Garrsen, Bart. 2009. Comparing the Incomparable. Figurative Analogies in a Dialectical Testing
Procedure. In Pondering on Problems of Argumentation: Twenty Essays on Theoretical Issues, ed.
F.H. van Eemeren and B. Garssen, 133–140. Dordrecht: Springer.
33
See Gilbert (1997) on the importance of face in argumentation.
123
454 K. Stevens
Genter, Dedre. 1983. Structure Mapping, A Theoretical Framework for Analogy. Cognitive Science 7:
155–170.
Gilbert, M. 1997. Coalescent Argumentation. Mahwah: Lawrence Erlbaum Associates.
Govier, Trudy. 1989. Analogies and Missing Premises. Informal Logic 11(3): 141–152.
Govier, Trudy. 2014. A Practical Study of Argument. 7th ed. Boston: Wadsworth.
Guarini, Marcello. 2004. A Defense of Non-deductive Reconstructions of Analogical Arguments.
Informal Logic 24(2): 153–168.
Groarke, Leo, and Christopher Tindale. 2004. Good Reasoning Matters!: A Constructive Approach to
Critical Thinking. New York: Oxford University Press.
Hitchcock, David. 1992. Relevance. Argumentation 6(2): 251–270.
Holoyak, Keith J., and Paul Thagard. 1989. Analogical Mapping by Constraint Satisfaction. Cognitive
Science 13: 295–355.
Holoyak, Keith J., and Paul Thagard. 1995. Mental Leaps: Analogy In Creative Though. Cambridge: MIT
Press.
Hunter, Dan. 2001. Reason is Too Large: Analogy and Precedent in Law. Emory L. J 50: 1197–1264.
Johnson, R.H., and J.A. Blair. 1977. Logical Self-Defense, Toronto. New York: McGraw-Hill Ryerson.
Juthe, Andre. 2005. Argument by Analogy. Argumentation 19: 1–27.
Kozel, Randy J. 2013. Settled Versus Right: Constitutional Method and the Path of Precedent. Texas law
Review 91: 1843–1896.
Lamond, Grant. 2005. Do Precedents Create Rules? Legal Theory 11(1): 1–26.
Lamond, Grant. 2010. Persuasive Authority in the Law. The Harvard Review of Philosophy 17(1): 16–35.
Lamond, Grant. 2014. Analogical Reasoning in the Common Law. Oxford Journal of Legal Studies 34(3):
567–588.
Lamond, Grant. 2016. Precedent and Analogy in Legal Reasoning. In The Stanford Encyclopedia of
Philosophy (Spring 2016 Edition), ed. Edward N. Zalta. https://plato.stanford.edu/archives/spr2016/
entries/legal-reas-prec/.
Levenbook, Barbara Baum. 2000. The Meaning of a Precedent. Legal Theory 6(2): 185–240.
Levi, Edward H. 1949. An Introduction to Legal Reasoning. Chicago: University of Chicago Press.
Levvis, G.W. 1991. The Principle of Relevant Similarity. Journal of Value Inquiry 25: 81–87.
Macagno, F., D. Walton, and C. Tindale. 2017. Analogical Arguments: Inferential Structures and
Defeasibility Conditions. Argumentation 31(2): 221–243.
MacCormick, Neil. 2005. Rhetoric and the Rule of Law: A Theory of Legal Reasoning. Oxford: Oxford
University Press.
Marmor, Andrei. 2007. Law in the Age of Pluralism. Oxford: Oxford University Press.
Perelman, Chaim, and Lucie Olbrechts-Tyteca. 1969. The New Rhetoric. Notre Dame: University of
Notre Dame Press.
Perelman, Chaim. 1980. Justice, Law and Argument: Essays on Moral and Legal Reasoning. Dordrecht:
D. Reidel Publishing Company.
Postema, Gerald J. 2007. A Similibus ad Simila: Analogical Thinking in the Law. In Common Law
Theory, ed. Douglas E. Edin, 102–133. Cambridge: Cambridge University Press.
Raz, Joseph. 1975. Practical Reason and Norms. Oxford: Oxford University Press.
Reidhav, D. 2007. Reasoning by Analogy: A Study on Analogy-Based Arguments in Law. Dissertation,
Faculty of Law, Lund University, Lund.
Rigoni, Adam. 2014. Common-Law Judicial Reasoning and Analogy. Legal Theory 20(2): 133–156.
Schauer, Frederick. 1987. Precedent. Stanford Law Review 39(3): 571–605.
Schauer, Frederick. 1991. Playing by The Rules. Oxford, New York: Claredon Press, Oxford University
Press.
Schauer, Frederick. 2008. Why Precedent in Law (and Elsewhere) Is Not Totally (or Even Substantially)
about Analogyk available at SSRN: http://ssrn.com/abstract=1007001.
Schauer, Frederick. 2009. Thinking Like a Lawyer. Cambridge/London: Harvard University Press.
Shecaira, Fabio. 2013. Analogical Arguments in Ethics and Law: A Defense of a Deductivist Analysis.
Informal Logic 33(3): 406–437.
Sherwin, Emily. 1999. A Defense of Analogical Reasoning in the Law. The University of Chicago Law
Review 66: 4.
Sperber, Dan, and Deirde, Wilson. 1986. Relevance: Communication and Cognition. Cambridge, MA:
Harvard University Press.
Stevens, Katharina. (forthcoming). Reasoning By Precedent - Between Rules and Analogies.
123
Strauss, David A. 2002. Must Like Cases Be Treated Alike? University of Chicago Public Law & Legal
Theory Working Paper, No. 24.
van Eemeren, Frans, and Bart Garrsen. 2014. Argumentation By Analogy in Stereotypical Argumentative
Patterns. In Systematic Approaches to Argument by Analogy, ed. Henrique Jales Ribeiro, 41–56.
Heidelberg, New York, Dortrecht, London: Springer.
van Laar, Jan Albert. 2014. Arguments from Parallel Reasoning. In Systematic Approaches to Argument
by Analogy, ed. Henrique Jales Ribeiro, 91–108. Berlin: Springer.
Vaughn, Lewis, and Chris McDonald. 2013. The Power of Critical Thinking: Third, Canadian ed. Don
Mills, Ontario: Oxford University Press.
Waldron, Jeremy. 2012. Stare Decisis and the Rule of Law. A Layered Approach. Michigan Law Review
1(111): 1–32.
Waller, Bruce N. 2001. Classifying and Analyzing Analogies. Informal Logic 21(3): 199–218.
Walton, D. 2010. Similarity, Precedent and Argument from Analogy. Artificial Intelligence and Law
18(3): 217–246.
Walton, Douglas. 2012. Story Similarity in Arguments from Analogy. Informal Logic 32(2): 190–221.
Walton, Douglas. 2014. Argumentation Schemes for Argument from Analogy. In Systematic Approaches
to Argument by Analogy, ed. Henrique Jales Ribeiro, 23–40. Heidelberg, New York, Dortrecht,
London: Springer.
Walton, Douglas, and Koszowy, Marcin. 2016 online. Argument from Authority and Expert Opinion in
Computational Argumentation Systems. AI and Society (forthcoming).
Walton, Douglas, Chris Reed, and Fabrizio Macagno. 2008. Argumentation Schemes. New York:
Cambridge University Press.
Woods, John, and Brent Hudak. 1989. By Parity of Reasoning. Informal Logic 11: 125–139.
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Case To CaseArguments

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Case To CaseArguments

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Argumentation (2018) 32:431–455

Published online: 11 January 2018

Abstract Arguers sometimes cite a decision made in an earlier situation as a reason

Keywords Argument by analogy Argument by precedent Argument

1 Two Kinds of Case-to-Case Arguments

& Katharina Stevens

Case-to-case reasoning and case-to-case arguments do indeed have a close

3 The Two Types of Case-to-Case Arguments and Relevant Similarities

similarity relevant in order to highlight the difference between case-to-case

3.1 Relevant Similarities in Case-to-Case Arguments from Parallel

3.2 Relevant Similarities in Arguments by Precedent

In case-to-case arguments from parallel reasoning, the relevance of the similarities

the legitimacy of these arguments by precedent is one that gives authority to

4 The Evaluation of Case-to-Case Arguments

scheme for case-to-case arguments immediately runs into a problem. As I

Base Premise: The right thing to do in S1 was to carry out action x.

4.1 Differences in Evaluation

Four kinds of considerations for the evaluation of arguments by analogy are

(1) Is the Conclusion True in the Source-case?

I am here interested in case-to-case arguments, and these arguments are practical

(3) Are there Relevant Dissimilarities/Differences Between the Two Cases?

Case-to-case Argument from Parallel Reasoning Argument by Precedent

4.2 A Complication: Mixed Uses of Case-to-Case Arguments

including the necessary background assumptions as premises draws attention to the

5 Conclusion: Miss-Uses, Miss-Evaluations, and the Importance

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