Tuesday, March 08, 2011

Analogy & Metaphor: A Select Bibliography and Introduction, Part 1

The subject of our latest bibliography in the Directed Reading series concerns analogy and metaphor. I’ll introduce these respectively in two posts, the first here treats analogy and analogical reasoning.

Perhaps it’s a commonplace observation, but I’ll reiterate it in any case: evidence for analogical reasoning is ubiquitous in the (natural and social) sciences and the humanities, in fact, it is integral to, when not prominent alongside, other forms of everyday practical and theoretical reasoning found in academic and public fora alike, as well as in the intimate contexts of everyday life. With regard to the latter, Holyoak and Thagard point out that “[y]oung children, before they enter school, without any specialized tutoring from their parents or elders, develop a capacity for analogical thinking,” indeed, they go so far as to claim the “analogical mind is simply the mind of a normal human being.”[1] The canonical philosophical tradition in the West has reluctantly and only occasionally accorded explicit recognition to the fact that such reasoning is, in the words of Baggini and Fosl, “both powerful and important.”[2] Yet no less than Hume gave voice to a proposition that motivates one of the more fruitful research agendas in cognitive psychology: All our reasonings concerning matters of fact are founded on a species of Analogy.” But of course the significance of analogy is not confined to “matters of fact,” for it readily extends into fiction, the imaginary, and the rarefied realms of philosophy itself, if only because “analogies make it possible for us to engage our imaginations in philosophical thought,” for while it is often “hard to get a grip on abstract ideas such as truth or reality…people can easily relate to cities, ships, celestial objects and cave dwellers,” these being well-known “source” analogues from Plato.[3]

Recent research in cognitive science and philosophy has clarified constraints operative in analogical reasoning (e.g., similarity, structure and purpose) and the apparent “mental leap” that traverses the conceptual and representational gap between “the source” (the familiar, or what we ‘know’) and the “target” (the novel, or what we are seeking to ‘make sense of’) analogues.[4] The history of science itself can be mined for a wealth of examples that demonstrate the repeated, wide, and varied “use of analogy in building scientific theories,” suggesting we delineate a path from “analogical thinking to the core of human creativity.”[5] The late physicist and philosopher of science John Ziman argued, “Even the most austerely ‘scientific’ models operate through analogy and metaphor.”[6] Whether or not it is true that “All knowledge is ultimately rooted in metaphorical (or analogical) modes of perception and thought,”[7] as the early Nietzsche appears to have believed, it borders on intellectual irresponsibility to ignore the embarrassment of riches found in recent works on analogy and metaphor in cognitive science and philosophy.

We now turn, in a highly abstract and stylized fashion, to the topic of analogy and law. Analogical arguments are especially prominent in Anglo-American jurisprudence,* in particular and especially with adjudication by precedent (stare decisis), the defining feature of common law legal reasoning.[8] Stare decisis (L., ‘to stand by things decided’) is the doctrinal practice of applying precedent(s) (cases: originally an adjective, hence ‘precedent case,’ now used largely as a noun: ‘a precedent’) in the adjudication of later cases (disputes). This means a court is bound to follow “the point” or principle or rule of law arrived at in prior adjudication. In the first instance, this determination of law becomes, in some sense binding (closer to a literal sense in English law, fairly loosely in American law, especially with regard to constitutional law) on all other courts of equal or inferior ranking in its jurisdiction (‘vertical constraint’). Precedent arises from the broad body of common law, and in particular, from case law (cf. statutory law or legislation, constitutional law, and administrative law), the latter being the collection of published cases in a given jurisdiction. Classical common law judges did not subscribe to an explicit doctrine of stare decisis, for it was not to become a full-fledged doctrine in the common law before the 18th century, although the seeds of stare decisis were long sown in the soil of the common law.

Reference to precedent is made when it is said that a case is “on—” or “in point,” synonymous with being apposite, applicable, or germane to the “instant” case, i.e., the case presently before the court. For a case to serve as precedent there should be a clearly ascertainable ratio decidendi (L., ‘the reason for deciding’), holding, rule or principle of law on which the court’s decision is based, and behind which, lie reasons: outlined loosely, (and ideally) in argument form. This is a normative “rationality constraint” (of which a principle of coherence is part) that compels the court to give a “reasoned” account for its legal determination or ruling or “holding” in the case. In short, a precedential case is a vehicle for a rule or principle (or standard) that has (or may have) holding in (‘fits’) the case before the court. Determination of precedent also involves “professional discourse concerning the precedent, changes in social propositions and doctrine after the precedent was decided, and the judgment of the deciding court concerning what rule would be most socially congruent and systematically consistent.”[9] Dictum, actually, obiter dictum (pl. dicta) refers to a nondispositive—that is, not precedential—comments made in the course of the majority’s opinion, although in practice “the ratio decidendi and obiter dicta often blur into one another” (Neil Duxbury). While the latter is typically thought to be tangential to the holding in the instant case, it may later be accorded persuasive value in legal argumentation and/or future decisions; in other words, it may eventually attain the status of ratio decidendi.

In contrast to their English counterparts, American judges have more discretionary power to bypass or otherwise disregard constraining or binding precedent (‘relaxed’ v. ‘strict’ stare decisis): “Whenever the substantive reasoning in a case seems at all dubious the case must go through a period of evaluative trial before it can be regarded as settled and therefore valid law.”[10] An appellate opinion short of unanimity or even a clear majority is dubbed a “plurality opinion,” which may be sufficient reason for an American judge to once more disregard otherwise binding precedent (a plurality opinion nonetheless has ‘persuasive value’ which means that, while in principle it is defeasible, it should not be ignored or dismissed out of hand). Another reason for declining to defer to precedent may be the belief (there may be less generous ways of characterizing this) that the prior case will likely (i.e., there is a high probability that it will) be overruled on appeal to a higher court. This is called “anticipatory overruling” (i.e., anticipating the higher court will overrule the cited precedent). As Atiyah and Summers warn us, widespread adoption of this—so to speak—avoidance rationale would prove highly corrosive to stare decisis.

Even the “binding” character of precedent must be qualified in the English case, as we see in the following summary of Lord Denning’s discussion by E.W. Thomas:

“Binding it may be, he states, but there are always ways and means of getting around a previous decision that is wrong. It may be distinguished by finding some minor distinction on the facts, or on the law, which, although minor, will ‘serve its turn.’ Another means is by ‘pouring cold water’ on the reasoning in the previous case; for example, by saying that it was too widely stated, or that the judges cannot have had such cases as this in mind. Or, Lord Denning can depart from a previous decision by simply saying that things are different now that equity and law are fused.”[11]

Antecedent to the full-fledged doctrine of judicial deference to precedent was the belief common to English and French royal courts that like cases should be treated, hence decided, alike. In application, this is known as the principle of consistency, and is at the same time a formal principle of equality (a property of Rawlsian ‘formal justice’), although we still depend on criteria for determination of the relevant likeness(es) and difference(s). Reliance on this principle contributes to the structural integrity of the legal system. Cass Sunstein cites the consequent triune virtues of “fostering planning, maintaining predictability, and protecting expectations” as integral to the belief that the law is, after all, a certain way.[12] In addition, legal arguments made in the context of precedent strive to incarnate the virtues or principles associated with epistemic coherence for ascertaining the truth or falsity of legal propositions. Finally, as “law-and-economics” practitioners are quick to remind us, resort to precedent ideally economizes on time for all the relevant parties. Another way to make this point is to view, with Duxbury, the reliance on the default role or presumptive rule of precedent in the law as resembling the mental economy achieved with cognitive heuristics.

The attempt to instantiate the principles of consistency and equality implicates legal practitioners (arguably, it turns out) in analogical reasoning because, of course, no two cases will ever be identical in all respects. However, the most conspicuous “difficulty with constraint by analogy is that every case is analogous to every other case in some ways and disanalogous in other ways.”[13] Or so it seems. But this way of putting the problem is insensitive to the manner in which analogical argument in (and outside) the law is subject to operative constraints which, while not leading to anything like deductive certainty, need not leave us floundering in sheer indeterminacy. Analogical reasoning is suggestive, plausible, and presumptive—and often persuasive, even if it is not conclusive (i.e., determinative) in a rigorous deductive or formal sense. It is employed in the context of legal rules, doctrinal standards, and sundry legal principles and community values that help to narrow the scope of indeterminacy when reasoning analogically. It has an ineluctable “open-texture” that makes it more, or less, persuasive. What counts in analogical comparison is, within limits, inherently contestable. According weight or salience to the items of an analogy is necessarily an evaluative process in part dependent upon normative judgments and growing out of background rules, standards, principles, and theories. However, reference to a norm “beyond” the facts of the case is still in implicit reference to those facts, accounting for disparate or competing analogies but not rendering them solely or exclusively the product of idiosyncratic value preference or the bias of prior theory selection (even ‘fact finding’ is dependent on the exercise of judicial discretion: in the words of E.W. Thomas, ‘[facts] must be probed, discerned, extracted, and weighed from a mass of evidence, often poorly organised’). After all, the question time and again is the proper “fit” (coherence) with the facts, such that theory or values or principles can never be singularly or entirely dispositive. Rather, and perhaps roughly, something like Rawls’ “reflective equilibrium” may be at work here, which is indeed the claim made by Sunstein, and perchance the only way one can save his depiction of analogical reasoning from vicious circularity (for Larry Alexander, no such salvation is possible). Cass Sunstein claims that the principle or rule which “accounts for results in the source and target cases” is discovered in the process of analogical reasoning itself, but this seems hopelessly confused if not viciously circular (reflective equilibrium being ‘virtuously circular’): analogical reasoning cannot get started without a “governing idea,” yet that governing idea (or rule or principle) does not exist “until we have assessed the cases” (emphasis added).[14] Keep in mind, however, that it is likely that one reasons analogically in conjunction with or alongside other forms of reasoning (syllogistic and otherwise) in which proper fit or coherence is a minimal desideratum. Like the doctrine of precedent itself, analogical reasoning involves the simultaneous reliance on constraints and the exercise of discretion (even here, as E.W. Thomas makes clear with regard to the doctrine of precedent, such discretion is bounded by ‘internal’ and ‘external’ constraints).

While a deciding court is strictly bound (vertically constrained), stare decisis does not require the court to follow the precedent of coequal, autonomous courts, or of lower courts within the same system, or of any courts outside the jurisdiction. And yet the deciding court is free to consider cases from other courts authoritative (the court of last resort if you will), in other words, to freely bind itself.[15] A prima facie case of precedent may be “distinguished” if the court finds the earlier decision addressed an issue in some respect or on the whole different from the case at hand. Or some characterization of the facts may cause it to be distinguishable or significantly different from the instant case to exempt it from the constraint of precedent. In addition, finding a case distinguishable can be a roundabout way of circumventing outdated or otherwise unsound precedent. Inconsistent distinguishing may reflect a rational (i.e. with ‘good reason’) stepwise strategy of a court toward the (provisional) goal of overruling, as succinctly explained here by Melvin Eisenberg:

“It may sometimes be best for courts to move to the best rule in steps, even at
the price of inconsistency during the transition. A court may properly decide that if it is uncertain how given conduct should be treated, it may give effect to its uncertainty by carving out only a portion of the conduct for special treatment, on a provisional basis, provided the line it carves out is rationally related to the court’s purpose. For example, a court may believe that a doctrine is not normatively justified and yet may not be confident that its belief is correct. The court may then properly draw an inconsistent distinction as a provisional step toward full overruling. Alternatively, a court may properly formulate an exception at a level of generality below that necessary for the exception to be fully principled, as a provisional step toward full generality.”[16]

This is an altogether remarkable practice by the court that well illustrates several phenomena first discussed by Jon Elster in Ulysses and the Sirens: Studies in Rationality and Irrationality (1984) wherein man is metaphorically characterized as a “globally maximizing machine” (in contrast to the ‘locally maximizing machine’ evidenced in the theory of natural selection) that employs “waiting and the use of indirect strategies [as] crucial features of human choice.”[17] In this case, waiting akin to “investment” in economics, which exemplifies a “global maximization that requires bypassing a local maximum: one step backwards in order to take two steps forwards.” I think we might fairly characterize the practice of “inconsistent distinguishing” as an indirect strategy akin to investment in which case it is viewed as prima facie “irrational.” By all appearances (from outside looking in as it were) the court is behaving irrationally (i.e., its inconsistent distinguishing), i.e., the “step backwards,” but only in order for it later—after the waiting period—to possess the capacity to articulate a new rule or move “two steps forward.” Here, the admission of ignorance or “uncertainty” does not result in a myopic or a-theoretical incrementalism, as the court implicitly or explicitly entertains the “big picture” or long-term view when articulating its decision, a picture that perchance only members of the court are privy to. The court is relying on a stepwise strategy through inconsistent distinguishing, but in this instance its eyes are looking up or ahead, as opposed to down, at the very next step: short-term (prima facie) inconsistency is the price paid for indirectly approaching the long-term regulative ideals of consistency and coherence, among the prominent an fundamental rational principles of stare decisis. The practice of precedent thus artfully combines some of the features one associates with traditional or Burkean-like conservatism (e.g., presumptive weight with tradition and a gradualist approach to social change) with the progressive orientation of classical liberalism (e.g., due consideration of changing circumstances or new ‘social propositions’).

To overrule precedent the court must be in a superior position in the legal system or at least equal to it in authority. And yet, while the California Supreme Court, for example, is precedentially constrained by its previous decisions (‘horizontal constraint’), it may still (with reason…) overrule itself, provided the precedent is thought to “be wrong and also mischievous to a certain degree of gravity.”[18] Deference to past decisions or the binding constraints of the doctrine of stare decisis serves to save the courts (or judges) from the exercise of unfettered discretion on the one hand, and from having to decide every case de novo or afresh on the other.

Perhaps inspired by the growing number of cognitive and computer scientists and philosophers seeking to model or map analogical reasoning across the myriad fields of intellectual inquiry, legal theorists and philosophers of law have begun to address the comparatively “impoverished understanding” of the “logical form” (i.e., linguistic, semantic, and pragmatic) and “rational force” of analogical reasoning or the use of analogies in reasoning from judicial precedent. Analogies are employed in both inductive reasoning and deductive inferences, although they are clearly dependent on broader legal principles and values, making manifest contributions to the aforementioned “coherence” of legal reasoning and the structural integrity of the rule (or system) of law. In common law legal arguments, for example, “analogies that work as justifications do so because of the way they instantiate the implementation of some general legal principle that cover both (or all) cases.”[19] Furthermore—and relatedly—as Neil MacCormick reminds us, analogies “are relevant to what judges call ‘developing the law,’ that is extending or restating a legal rule or principle to make it cover or show how it covers, novel situations of a kind that Joseph Raz calls ‘unregulated cases.’”

To explore a bit more deeply the use of analogy in precedential legal reasoning I’m going to draw upon Neil Duxbury’s illuminating discussion in The Nature and Authority of Precedent (2008). As Duxbury explains, “to follow a precedent is to draw an analogy between one instance and another; indeed, legal reasoning is often described—by common law lawyers at least—as analogical or case-based reasoning.”[20] To be sure, “[n]ot all instances of analogy drawing…are instances of precedent following.”[21] Prior to the development of the doctrine of stare decisis in the English common law tradition, precedent was often thought to exemplify proper legal reasoning wherein judgments endeavored to exhibit “constancy and consistency,” broadly construed, within the law as a whole. Analogical reasoning is here part and parcel of the “artificial” or cultivated reason of Coke and Hale, for such reason was—and remains—the fruit of “study and experience of the law over a long period of time.”[22] This is precisely the sort of rationality soon disparaged (unfairly I think) by Hobbes in postulating the superiority of “natural reason,” in other words, the sort of reason that in the first instance is the moral and political prerogative of the sovereign, and only derivatively or by implication entrusted to judges to exercise on the sovereign’s (and thus the subjects’) behalf: “For in the acts of Judicature,” writes Hobbes, “the Judge doth no more but consider, whither the demand of the party be consonant with naturall reason, and Equity; and the Sentence he giveth, is therefore the Interpretation of the Law of Nature….” While Hobbes’s natural law reasoning is axiomatically grounded, as Sharon Lloyd has well argued, in “the reciprocity theorem of reason” (which ‘articulates the primary constraint in Hobbes’s moral and civil philosophy on the justifiability in reason of actions’),[23] the “artificial reason” cherished by the likes of Coke and Hale and exemplified in common law reasoning would come historically to entrench the centrality of analogy—in cases, and as a form of reasoning—in stare decisis. As I find the historical narrative compelling, I’ll quote at length from Duxbury’s account:

“The standard of law reporting improved in the nineteenth century not only because the activity became steadily more professionalized, and eventually institutionalized, but also because the development of the Pitman shorthand system in the 1830s made it possible for reporters to reproduce judicial opinions more or less verbatim. By the mid nineteenth century, law reporting had become accurate to the point that reporters would customarily send judges transcripts of their oral arguments for approval and correction. The fact that reporters were generally replicating the ipsissima verba of the judges would most likely have contributed to the fortification of stare decisis; for a prior decision in an analogous case is likely to be less easy to ignore or even distinguish if the reasons informing that decision are presented clearly, in their entirety, and with the approval of the judges who articulated them. The introduction of the hierarchical system of appellate courts under the Judicature Acts of 1873-75 further helped to consolidate the doctrine of precedent, for, once this system was established, judges looking to earlier analogous decisions for guidance could be constrained by the status of the precedent-setting court rather than by the quality of its reasoning alone. [….] The doctrine of stare decisis did not come about because of the creation of a hierarchy of courts, even though the introduction of that hierarchy did much to consolidate it. The doctrine evolved, rather, primarily because the shift to post-verdict arguments made reasoned judgments more visible and significant, and because gradual improvements in law reporting (including headnote writing) ensured that, in general, such judgments were carefully documented and the key points of reasoning easily identifiable. For counsel, seeking judicial precedent became a matter of searching for an analogous earlier decision, reached by an appropriate court, based on reasoning which, if considered persuasive by the court deciding the current case, would probably guarantee a ruling in their client’s favour. The authority of precedents came to be understood, and valued, as sources of reason, not merely as rulings, in materially identical cases.”[24]

In The Nature of the Common Law (1988), Melvin Eisenberg persuasively argued that reasoning by analogy is,

“At its core…the mirror image of the process of distinguishing. In distinguishing a court normally begins with a rule, announced in a prior case that is in terms applicable to the case at hand, and then determines that there is good reason to treat the case at hand differently. The court therefore reformulates the announced rule (or what is the same thing, formulates an exception) that requires the two cases to be treated differently. In reasoning by analogy, the court normally begins with a rule, announced in a prior case, that is not in terms applicable to the case at hand, and then determines that there is no good reason to treat the case at hand differently. The court therefore reformulates the announced rule (or, what is the same thing, formulates a new rule) in a way that requires the two cases to be treated alike.”[25]

Reformulating a rule or formulating a new rule frequently entails, as Eisenberg notes, a consistent extension or generalization of an existing rule, the court having determined “that the statement of the announced rule in the relatively narrow form r, rather than in the relatively general form R, was or has become adventitious.”[26] Eisenberg illustrates this with a rule that existed prior to the nineteenth century in which a husband could bring suit for alienation of his wife’s affections by a third person. The question of why a wife did not suffer a legal injury when her husband’s affections had been alienated was quickened when the law changed allowing married women to sue in their own name. Now

“the question had to be faced whether a wife suffered a legal injury if her husband’s affection had been alienated. In Bennett v. Bennett [116 N.Y. 584, 23 N.E. 17 (1889)] the New York court held that she did suffer such an injury because applicable social propositions did not support treating a wife differently from a husband for this purpose.”[27] [….] In effect, the court concluded that the rule that a husband could bring an action for alienation of affections (rule r) should be deemed only a special case of the more general rule that a spouse could bring such an action (rule R). …[T]he rule must be reformulated by generalizing from husbands to spouses, so that it covers both the precedents and the case at hand.”[28]

Eisenberg concludes, like Duxbury after him, that analogical reasoning is a prominent and unavoidable feature of stare decisis. Analogical reasoning in the common law therefore plays a role in furtherance of doctrinal stability and systemic coherence, it instantiates the principle that like cases be treated alike, advances the values and principle of replicability and, therefore, predictability and planning. And in the end, of course, it is not precedent per se that is (or should be) binding, but the persuasive or substantive reasoning—the ratio decidendi—that animates it, that adds up to a case on point. What is important here is that both distinguishing and overruling require the giving of reasons, thus departure from precedent itself “might be considered evidence that the precedent has some authority, for explicit departure from a precedent invariably entails an explanation” (Duxbury). The simple picture we’ve sketched here might be filled in or made a bit more complex by considering the interactions, say, between common law and constitutional law, or common law and statutory and/or regulative law, but these complications should not undermine the basic framework of the picture itself.

*Analogy, or qiyās, is also very important in Islamic law, but that deserves a separate treatment on another occasion.

Postscript: For a more thorough analytical examination of this topic, see Grant Lamond’s entry in the Stanford Encyclopedia of Philosophy on “Precedent and Analogy in Legal Reasoning.” E.W. Thomas’s chapters 6 and 7, “The Piety of Precedent,” and “The Foibles of Precedent” respectively in his book, The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles (2005), are indispensable for explaining the shortcomings of any formal theory asserting the absolutely or strongly binding character of precedent. Neil Duxbury’s The Nature and Authority of Precedent (2008) seems to me the definitive treatment of the subject to date, artfully combining historical discussion with philosophical analysis in a way that enables us to fully appreciate precisely how and why “the value of the doctrine of precedent…rests in its capacity simultaneously to create constraint and allow a degree of discretion.” Properly employed, I think the same could be said about analogical reasoning in the law.

After assembling this bibliography I learned of a promising book that proffers “the first systematic normative theory of analogical arguments in many years,” namely, Paul Bartha’s By Parallel Reasoning: The Construction and Evaluation of Analogical Arguments (New York: Oxford University Press, 2010). At the publishers website we read that “In elaborating the connection between analogy and…broad epistemic principles, By Parallel Reasoning offers a novel contribution to explaining how analogies can play an important role in the confirmation of scientific hypotheses” in particular, and more generally, that it seeks “to formulate and justify the standards for the critical evaluation of analogical arguments.”

Notes:

[1] Keith J. Holyoak and Paul Thagard (1997), “The analogical mind,” American Psychologist, 52: 35-44. Available: http://cogsci.uwaterloo.ca/Articles/Pages/Analog.Mind.html
[2] Julian Baggini and Peter S. Fosl, The Philosopher’s Toolkit: A Compendium of Philosophical Concepts and Methods (Malden, MA: Blackwell, 2003), p. 47.
[3] Ibid., p. 46.
[4] Keith J. Holyoak and Paul Thagard, Mental Leaps: Analogy in Creative Thought (Cambridge, MA: MIT Press, 1995).
[5] Ibid., p. 12.
[6] John Ziman, Real Science: What it is, and what it means (Cambridge, UK: Cambridge University Press, 2000), p. 149.
[7] David E. Leary, ed. Metaphors in the History of Psychology (Cambridge, UK: Cambridge University Press, 1990), p. 2.
[8] See, for example, Scott Brewer, “Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy,” 109 Harvard Law Review 923, March 1996, and Dan Hunter, “Reason is Too Large: Analogy and Precedent in Law,” 50 Emory Law Journal 1197 (Fall 2001). Cf. Larry Alexander and Emily Sherwin’s skeptical (or ‘eliminativist’) argument that “so-called analogical reasoning does not contribute in a meaningful way to judicial decision-making,” in their book, Demystifying Legal Reasoning (Cambridge, UK: Cambridge University Press, 2008), p. 118. I cannot here attempt a rebuttal of this argument so suffice to say I think they’re mistaken, all the same, I do think they’re right in more modestly contending that “purely analogical decision making [in law] does not exist” [emphasis added].
[9] Melvin Aron Eisenberg, The Nature of the Common Law (Cambridge, MA: Harvard University Press, 1988), p. 51.
[10] P.S. Atiyah and R.S. Summers, Form and Substance in Anglo-American Law (Oxford, UK: Clarendon Press, 1987), p. 120.
[11] E.W. Thomas, The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles (Cambridge, UK: Cambridge University Press, 2005), p. 133.
[12] Cass R. Sunstein, Legal Reasoning and Political Conflict (Oxford, UK: Oxford University Press, 1996), p. 76.
[13] Larry Alexander, “Precedent,” in Dennis Patterson, ed., A Companion to Philosophy of Law and Legal Theory (Malden, MA: Blackwell, 1996), p. 509.
[14] Sunstein, pp. 65-66.
[15] On self-binding mechanisms generally, see Jon Elster, Ulysses Unbound (Cambridge, UK: Cambridge University Press, 2000).
[16] Eisenberg in Peter Benson, ed., The Theory of Contract Law: New Essays (Cambridge, UK: Cambridge University Press, 2001), p. 217.
[17] Jon Elster, Ulysses and the Sirens: Studies in Rationality and Irrationality (Cambridge, UK: Cambridge University Press, revised ed., 1984).
[18] Larry Alexander in Patterson (see n. 12 above), p. 512.
[19] Neil MacCormick, Rhetoric and the Rule of Law: A Theory of Legal Reasoning (New York: Oxford University Press, 2005), p. 211.
[20] Neil Duxbury, The Nature and Authority of Precedent (Cambridge, UK: Cambridge University Press, 2008), p. 2.
[21] Ibid.
[22] Ibid., p. 49.
[23] The “reciprocity theorem:” “If one judge another’s doing of an action to be without right, and yet does that action oneself, one acts contrary to reason. That is, to do what one condemns in another is contrary to reason.” Hobbes believed this to be a faithful application of the Golden Rule found in the New Testament, and Lloyd appears not to disagree with this, but the Golden Rule is not reducible to a principle of reciprocity, even if it frequently is seen as exemplifying same. See, first, Lloyd’s brilliant and boldly original interpretation of Hobbes’s moral and political thought in Ideals as Interests in Hobbes’s Leviathan: The Power of Mind over Matter (Cambridge, UK: Cambridge University Press, 1992), and Morality in the Philosophy of Thomas Hobbes: Cases in the Law of Nature (Cambridge, UK: Cambridge University Press, 2009). As to the reasons why the Golden Rule is not equivalent or reducible to the (Hobbesian), or a reciprocity principle, see Duxbury’s article, “Golden Rule Reasoning, Moral Judgement and Law,” 84 Notre Dame Law Review (2009): 1529-1605, and Anna Wierzbicka’s discussion in What Did Jesus Mean? (New York: Oxford University Press, 2001), pp. 191-202.
[24] Duxbury, 2008: pp. 55-57.
[25] Eisenberg, The Nature of the Common Law, p. 87.
[26] Ibid.
[27] Ibid., p. 88.
[28] Ibid., p. 89.

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