Summer School on Law and Logic
European University Institute & Harvard Law School
15-26 July, 2013
Florence, Italy
Handout for Sessions 5.2.1 and 5.2.2 and 6.1.1
Professors Brewer, Sartor
Ana-logic
Famous reflections on precedent, analogy, and stare decisis

"It is revolting to have no better reason for a rule of law than that so it was laid down in the
time of Henry IV. It is still more revolting if the grounds upon which it was laid down have
vanished long since, and the rule simply persists from blind imitation of the past." O.W.
Holmes, Jr., The Path of the Law

"A foolish consistency is the hobgoblin of little minds, adored by little statesmen and
philosophers and divines. With consistency a great soul has simply nothing to do. He may as
well concern himself with his shadow on the wall." R.W. Emerson, Self-Reliance

"It is a Maxim that among these Lawyers, that whatever hath been done before may legally
be done again: and therefore they take special Care to record all the Decisions formerly made
against common Justice and the general Reason of Mankind. These, under the Name of
Precedents, they produce as Authorities, to justify the most iniquitous Opinions; and the
Judges never fail of directing accordingly." J. Swift, Gulliver's Travels
Summary of features of analogical argument

analogical arguments always involve a comparison of two or more (even many more than
two) selected "target" items, on the one hand, and "source" items, on the other

reconstructing any enthymematic argument, including analogical arguments, requires a fair
interpretation of the text in which the argument is presented (judicial decision, lawyer's brief)

analogical arguments always involve picking out what are judged to be relevant
characteristics of those selected items

some of the relevant characteristics are known to be shared ("shared characteristics"), some of
them are not known, at the start of the argument, to be shared, but one infers that they are
shared (“inferred characteristics”)

the basic pattern is always this: on the basis of some shared relevant characteristics, one
infers that the "target" item has an additional characteristic that the “source” item is known to
have
page 2

there is always an implicit rule guiding the inference to inferred characteristics from relevant
shared characteristics -- this is the "analogy-warranting rule."

there must always be a justification of this rule (an "analogy-warranting rationale") if the
analogy is to be successful
Note that in the argument template offered below, two possible patterns are offered for the
analogy warranting rule; what the actual rule (and thus what the logical structure of the rule) is in
a given analogical argument depends, of course, on the particular argument.
Structure of analogical argument
(1)
x1, x2, x3 . . .
have F, G, H, . . . [sources and shared characteristic]
(2)
y
has F, G, H, . . . [target and shared characteristic]
(3)
x1, x2, x3
also have I
(4)
analogy warranting rule:
one option:
[inferred characteristic]
Anything that has F, G, H also has I [deductive
AWRu, meaning that the application of this AWRu can yield
a valid inference to the possession of I in the target]
another option: Some things that have F, G, H also have I
[inductive AWRu, meaning that the application of this
AWRu cannot yield a valid inference to the possession of I in
the target, but can lead to a probabilistic inference (with
probability less than 100%)
Therefore,
(5)
y has I
[conclusion: target has inferred characteristic]
analogy warranting rationale [serves the function of justifying the abduced connection between
possession of the shared characteristic and the possession of the inferred characteristic – again,
remember the moose]
page 3
Analogical Arguments: Examples
1. "Do what I'm doing" example
assignments to letters
a
Brewer's action [source; note that 'a' is a constant, which functions as a
proper name, not a variable]
b
student's action [target; this is also a constant, not a variable]
Candidates for abduced relevant shared characteristic
F1
is patting one's own head ['F1' is a predicate]
F2
is patting Brewer's head ['F2' is also a predicate]
F3, F4, . . . Fn
[indefinite number of both shared and unshared characteristic,
but not all are relevant: "remember the moose!"]
Inferred characteristic:
I
Is doing what Brewer is doing. ['I' is a predicate]
analogy warranting rule:
one option:
(x) (F2x  Ix)
another option:
(x) (F2x  Ix)
Argument
(1)
F2a
(2)
F2b
(3)
analogy warranting rule:
one option: (x) (F2x  Ix)
another option:
(4)
(x) (F2x  Ix)
Ib
[Does this follow validly from both options for analogy-warranting rules?]
page 4
analogy warranting rationale? -- serves the function of justifying the abduced connection
between possession of the shared characteristic and the possession of the inferred characteristic –
again, remember the moose
One (abduced) possibility: intent of the author.
2. Pens and pencils and laptop example: analogy
pens and pencils: sources x1 and x2
laptop computer: target y
Shared characteristic (abduced)
F: assists student in communicating ideas to professor
Inferred characteristic
I: is permitted to be used on the exam.
analogical argument:
(1)
x has F
(2)
y has F
(3)
x also has I
(4)
AWRule: Anything that has F also has I
Therefore,
(5)
y has I
AWRationale:
(i) convenience for student
(ii) fairness to individual students with poor handwriting
page 5
Put in tabular form, the features of argument by analogy are as follows:
Table of features of argument by analogy (using symbolism of predicate logic)
Element
inference
Source(s)
Target
of
analogical # of items
Relevant shared
characteristic(s)
useful abbreviation
one or more
usually one
often several
x1, x2, x3 . . .
y
F, G, H, . . .
Inferred characteristic
usually one is of primary I
interest
Analogy
warranting
rule usually one
Some logical connectives or
operators, like "if . . . then, "
("AWRu")
"if and only if," "some," "all",
"none"
Analogy warranting rationale One or more
none – typically is a
"discursive" explanation often
("AWRa")
involving
references
to
principle or policies
Worksheet for elements of analogical inference
Element of analogical inference
Source(s)
Target
Relevant shared characteristic(s)
Inferred characteristic
Analogy warranting rule ("AWRu")
Analogy warranting rationale -- ("AWRa") –
answers question, "What justifies logical
relationship between the presence of the shared
and the presence of the inferred characteristics
that is stated in the AWRu?"
abbreviation
page 6
Argument by disanalogy and "distinguishing as narrowing"
(using symbolism of predicate logic)
(1)
x1, x2, x3 . . .
have F, G, H, . . .[sources have shared characteristic]
(2)
y
has F, G, H, . . . [target has shared characteristic]
(3)
x1, x2, x3 . . .
also have not-J and not-K and not-L. . .
[source(s) have unshared characteristic]
(4)
y does not have not-J and not-K and not-L . . . (y has J and K and L . . .).
[target does not have unshared characteristic]
(5)
x1, x2, x3 also has I
[sources have the inferred characteristic]
(6)
DWRule:
By itself, the presence of F, G, H, . . . in an item does
not warrant the inference that I is also present in that
item
But, all items that have F, G, H, . . . and also have not-J
and not-K and not-L . . . also have I
Therefore
(7)
the presence of F and G and H . . ., in y provides no basis for inferring the presence
of I in y
[conclusion: it is unwarranted to conclude that target has inferred characteristic]
DWRationale?
Disanalogical Arguments: Examples
1. Pens and pencils and laptop example: disanalogy
pens and pencils: sources x1 and x2
laptop computer: target y
Shared characteristic (abduced)
F: assists student in communicating ideas to professor
Unshared characteristic (abduced)
L: has a memory that can be used for effective cheating
provides an effective method
Inferred characteristic
I: is permitted to be used on the exam.
disanalogical argument:
page 7
(1)
x1 and x2 have F
(2)
y has F
(3)
x1 and x2 also have I
(4)
x1 and x2 also have not-L. . .
[source(s) have unshared characteristic]
(5)
y does not have not-L . . . (y has L . . .).
(6)
DAWRule
By itself, the presence of F in an item does not warrant
the inference that I is also present in that item
(all items that have F and not-L also have I)
Therefore,
(7)
y does not have I
DAWRationale:
(i) fairness to students who don't cheat
page 8
Put in tabular form, the features of argument by disanalogy are as follows:
Element of disanalogical
inference
Source(s)
Target
Relevant shared
characteristic(s) -- the presence
of which calls for disanalogy
Relevant unshared
characteristic(s) – despite the
shared characteristics, the
unshared characteristics lead to
the conclusion that one cannot
infer that the inferred
characteristic is present in the
target of the disanalogy
Inferred characteristic
Disanalogy
("DWRu")
warranting
# of items
useful abbreviation
one or more
usually one
often several
x1, x2, x3 . . .
y
F, G, H, . . .
one or more
J, K, L, . . .
usually one is of primary N
interest
rule usually one
[See line 6 of the "pattern of
disanalogical argument" in
previous example]
Disanalogy
warranting One or more
rationale ("AWRa") – answers
question, "Why, despite the
presence of the shared
characteristic(s), are we not
entitled to attribute the inferred
characteristic,
which
is
possessed by the source, to the
target also?"
none – typically is a
"discursive" explanation often
involving
references
to
principle or policies
page 9
Worksheet for elements of disanalogical inference
Element of disanalogical inference
Source(s)
Target
Relevant shared characteristic(s) – the presence of which calls for
disanalogy
Relevant unshared characteristic(s)– despite the shared characteristics,
the unshared characteristics lead to the conclusion that one cannot infer
that the inferred characteristic is present in the target of the disanalogy
Inferred characteristic
Disanalogy warranting rule ("DWRu")
Disanalogy warranting rationale ("DWRa")
Disanalogy warranting rationale
abbreviation
page 10
Exercises
(see footnotes for selected answers)
Exercise 1i
For the rule-enthymeme
(R) Do what I'm doing
reconstruct
(i) one analogical argument
(ii) one disanalogical argument
What makes R a rule-enthymeme, and how is the rule-enthymeme related to analogical and
disanalogical argument?
**Deep value of analogical and disanalogical argument: converting examples into edicts
and supplementing vague terms in edicts**
Exercise 2ii
A contract for the sale of a farm includes language that specifies, "This contract of sale includes
all farm buildings, fields, and machinery as well as all cows, chickens, pigs, sheep and other
farm animals." The farmer's dog is a pet that also sometimes acts as a shepherd.
(a) Make an argument by analogy that the dog is included in the contract of sale.
(b) Make an argument by disanalogy that the dog is included in the contract of sale
Exercise 3
One requirement for matriculating at Dravrah Law School is that the matriculant sign an 'Honor
Code" pledge that states, in full,
I hereby agree to behave honorably in all conduct related to my studies at Dravrah Law
School, and I acknowledge that the penalty for failing to do so is suspension of not less
than two semesters, or expulsion.
Of the 10 cases that have come before the administrative board, all resulting in suspension or
expulsion, 6 have been for a student who cheated on an exam, 2 have been for a student who
helped a classmate cheat on an exam, 1 has been for a student who willfully destroyed library
materials (hoping to gain a competitive advantage), and 1 was for lying about a family emergency
in order to be able to get extra time to take an exam. Jones was caught knowingly writing a bad
check at the campus bookstore to pay for a text book.
Should Jones be penalized under the Honor Code?
page 11
(a) Make an argument by analogy that he should be penalized under this code.
(b) Make an argument by disanalogy that he should not be penalized under this code
Exercise 4aiii: one argument in Monge: What are the premises and conclusion of this
argument? What is its mode of logical inference?
In all employment contracts, whether at will or for a definite term, the employer's interest
in running his business as he sees fit must be balanced against the interest of the
employee in maintaining his employment, and the public's interest in maintaining a
proper balance between the two. . . . We hold that a termination by the employer of a
contract of employment at will which is motivated by bad faith or malice or based on
retaliation is not the best interest of the economic system or the public good and
constitutes a breach of the employment contract. . . . Such a rule affords the employee a
certain stability of employment and does not interfere with the employer's normal
exercise of his right to discharge, which is necessary to permit him to operate his business
efficiently and profitably.
The sole question on appeal is whether there was sufficient evidence to support the jury's
finding that defendant, through its agents, acted maliciously in terminating plaintiff's
employment. It is the function of the jury to resolve conflicts in the testimony. . . .; and
the law is settled that a jury verdict will not be disturbed on appeal if there is evidence to
support it. . . .
The jury could draw the not-so-subtle inference from the evidence before it that the
hostility of defendant's foreman and connivance of the personnel manager resulted in the
letter of August 13, 1969, and that that letter was in effect a discharge. . . . The foreman's
overtures and the capricious firing at 2:00 a.m., the seeming manipulation of job
assignments, and the apparent connivance of the personnel manager in this course of
events all support the jury's conclusion that the dismissal was maliciously motivated.
Exercise 4biv -- another argument in Monge: What are the premises and conclusion of this
argument? What is its mode of logical inference?
Plaintiff sued for breach of an employment contract for an indefinite period of time. The
employer has long ruled the workplace with an iron hand by reason of the prevailing
common-law rule that such a hiring is presumed to be at will and terminable at any time
by either party. . . . When asked to reexamine the long-standing common-law rule of
property based on an ancient feudal system which fostered in a tenancy at will a
relationship heavily weighted in favor of the landlord, this court did not hesitate to
modify that rule to conform to modern circumstances. Kline v. Burns, 111 N.H. 87. . . ;
Sargent v. Ross, 113 N.H. (1973).
The law governing the relations between employer and employee has similarly evolved
over the years to reflect changing legal, social and economic conditions. In this area ‘(w)e
are in the midst of a period in which the pot boils the hardest and in the process of change
the fastest.’ . . . Although many of these changes have resulted from the activity and
influence of labor unions, the courts cannot ignore the new climate prevailing generally
in the relationship of employer and employee.
page 12
Exercise 5v: argument in Howard -- what are the premises and conclusion of this
argument? What is its mode of logical inference?
We also find the administrator's reliance upon Monge v. Beebe Rubber Co., supra,
for the proposition that a discharge due to age or sickness warrants recovery is
misplaced. We construe Monge to apply only to a situation where an employee is
discharged because he performed an act that public policy would encourage, or
refused to do that which public policy would condemn. See, e. g., Nees v. Hocks, 272
Or. 210, 536 P.2d 512 (1975) (employee discharged for accepting jury duty); cf.
Whirlpool Corp. v. Marshall, 48 U.S.L.W. 4189, 445 U.S. 1, 100 S.Ct. 883, 63 L.Ed.2d
154 (1980). A discharge due to sickness does not fall within this category, and is
generally remedied by medical insurance or disability provisions in an employment
contract. Nor does discharge because of age fall within this narrow category. The proper
remedy for an action for unlawful age discrimination is provided for by statute. See RSA
354-A:8 I (Supp.1979); RSA 354-A:9; 29 U.S.C. s 623 (1976); 29 U.S.C. s 626 (1976).
Accordingly, the administrator's claim must fail on the basis of his pleadings. We note,
however, that even if the claim did not fail, the administrator would have no claim to
insurance proceeds under the decedent's policy in this case because there was a named
beneficiary, Laura M. Baldwin, the decedent's widow. See generally 44 Am.Jur.2d
Insurance s 1925 (1969).
Exercise 6: In this portion of the Cloutier opinion (third in the "Monge trilogy," after Monge
and Howard, also Supreme Court of New Hampshire), do you see an argument by analogy
or an argument by disanalogy? If so, give a fair formal representation of the argument.
…
Seven years ago, in Monge v. Beebe Rubber Co., 114 N.H. at 133, 316 A.2d at 551, the majority
noted that “the employer's interest in running his business as he sees fit must be balanced against
the interest of the employee in maintaining his employment, and the public's interest in
maintaining a proper balance between the two,” concluding that “a termination by the employer of
a contract of employment at will which is motivated by bad faith or malice or based on retaliation
is not in the best interest of the economic system of the public good and constitutes a breach of the
employment contract.” The rationale underlying Monge is that there is an implied covenant in
every contractual relationship that the parties will carry out their obligations in good
faith. Bursey v. Clement, 118 N.H. 412, 414, 387 A.2d 346, 347-48 (1978); Seaward
Construction Co. v. City of Rochester, 118 N.H. 128, 129, 383 A.2d 707, 708 (1978). In Howard
v. Dorr Woolen Company, 120 N.H. 295, 297, 414 A.2d 1273, 1274 (1980), “(w)e construe(d)
Monge to apply only to a situation where an employee is discharged because he performed an act
that public policy would encourage, or refused to do that which public policy would condemn,”
thereby limiting the Monge holding to the “public policy” exception. “(U)nless an employee at
will identifies a specific expression of public policy, he may be discharged with or without
cause.” Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72, 417 A.2d 505, 512 (1980). Id. at
72, 417 A.2d at 512. Accordingly, we must determine whether the plaintiff has articulated a public
policy sufficient to give rise to a cause of action in tort under Howard and, therefore, sufficient to
withstand the defendant's motion for a directed verdict. It is here that we part company with the
dissent.
…
(5) Second, the plaintiff must demonstrate that he was discharged because he performed an act that
public policy would encourage, or refused to do something that public policy would
condemn. Howard v. Dorr Woolen Company, 120 N.H. at 297, 414 A.2d at 1274.
…
(6) The defendant next argues, and the dissent asserts, that the trial court erred in permitting the
jury to determine whether a public policy existed. In Thibault v. Sears, Roebuck & Co., 118 N.H.
page 13
802, 809, 395 A.2d 843, 847-48 (1978), a products liability action, we noted that the issue of the
dangerousness of a product requires a multifaceted balancing process involving evaluation of
many conflicting factors. We held that reasonableness, foreseeability, utility and similar factors
were questions of fact for jury determination. Id. We likewise have unanimously held in the area
of libel law that the question of who is a “public figure” or “public official” are questions best left
to the jury. McCusker v. Valley News, 121 N.H. 258, 260-61, 428 A.2d 493, 495 (1981). The
existence of a “public policy” also calls for the type of multifaceted balancing process that is
properly left to the jury in most instances.
The First Circuit, in the context of a negligence action, described the role the jury plays when
reasonable persons could differ as to the inferences to be drawn from facts: “(I)t is deemed wise to
obtain the judgment of the jury, reflecting as it does the earthy viewpoint of the common man-the
prevalent sense of the community....” Marshall v. Nugent, 222 F.2d 604, 611 (1st Cir. 1955). We
believe it best to allow the citizenry, through the institution of the American jury, to strike the
appropriate balance in these difficult cases. Though a public policy could conceivably be so clear
as to be established or not established as a matter of law, in this case it was properly a question of
fact for jury determination.
Exercise 7vi
Make an argument by analogy or disanalogy to assess the deductive validity of this argument:
Premise
Conclusion
:
h:
My senses sometimes deceive me.
It is possible that my senses always deceive me
Exercise 8
In each of the following cases, Mills v. Wyman and Webb v. McGowan, there is an argument that is
either analogical or disanalogical. For each of them reconstruct the argument and determine whether
it is an analogical or disanalogical argument.
Mills and Webb
Mills
Supreme Judicial Court of Massachusetts.
DANIEL MILLS
v.
SETH WYMAN.
October Term, 1825.
The opinion of the Court was read, as drawn up by
PARKER C. J.
General rules of law established for the protection and security of honest and fair-minded men, who
may *209 inconsiderately make promises without any equivalent, will sometimes screen men of a different
character from engagements which they are bound in foro conscientiæ to perform. This is a defect inherent
in all human systems of legislation. The rule that a mere verbal promise, without any consideration, cannot
be enforced by action, is universal in its application, and cannot be departed from to suit particular cases in
which a refusal to perform such a promise may be disgraceful.
The promise declared on in this case appears to have been made without any legal consideration. The
kindness and services towards the sick son of the defendant were not bestowed at his request. The son was
page 14
in no respect under the care of the defendant. He was twenty-five years old, and had long left his father's
family. On his return from a foreign country, he fell sick among strangers, and the plaintiff acted the part of
the good Samaritan, giving him shelter and comfort until he died. The defendant, his father, on being
informed of this event, influenced by a transient feeling of gratitude, promises in writing to pay the plaintiff
for the expenses he had incurred. But he has determined to break this promise, and is willing to have his
case appear on record as a strong example of particular injustice sometimes necessarily resulting from the
operation of general rules.
It is said a moral obligation is a sufficient consideration to support an express promise; and some
authorities lay down the rule thus broadly; but upon examination of the cases we are satisfied that the
universality of the rule cannot be supported, and that there must have been some preëxisting obligation,
which has become inoperative by positive law, to form a basis for an effective promise. The cases of debts
barred by the statute of limitations, of debts incurred by infants, of debts of bankrupts, are generally put for
illustration of the rule. Express promises founded on such preëxisting equitable obligations may be
enforced; there is a good consideration for them; they merely remove an impediment created by law to the
recovery of debts honestly due, but which public policy protects the debtors from being compelled to pay.
In all these cases there was originally a quid pro quo; *210 and according to the principles of natural justice
the party receiving ought to pay; but the legislature has said he shall not be coerced; then comes the
promise to pay the debt that is barred, the promise of the man to pay the debt of the infant, of the
discharged bankrupt to restore to his creditor what by the law he had lost. In all these cases there is a moral
obligation founded upon an antecedent valuable consideration. These promises therefore have a sound legal
basis. They are not promises to pay something for nothing; not naked pacts; but the voluntary revival or
creation of obligation which before existed in natural law, but which had been dispensed with, not for the
benefit of the party obliged solely, but principally for the public convenience If moral obligation, in its
fullest sense, is a good substratum for an express promise, it is not easy to perceive why it is not equally
good to support an implied promise. What a man ought to do, generally he ought to be made to do, whether
he promise or refuse. But the law of society has left most of such obligations to the interior forum, as the
tribunal of conscience has been aptly called. Is there not a moral obligation upon every son who has
become affluent by means of the education and advantages bestowed upon him by his father, to relieve that
father from pecuniary embarrassment, to promote his comfort and happiness, and even to share with him
his riches, if thereby he will be made happy? And yet such a son may, with impunity, leave such a father in
any degree of penury above that which will expose the community in which he dwells, to the danger of
being obliged to preserve him from absolute want. Is not a wealthy father under strong moral obligation to
advance the interest of an obedient, well disposed son, to furnish him with the means of acquiring and
maintaining a becoming rank in life, to rescue him from the horrors of debt incurred by misfortune? Yet the
law will uphold him in any degree of parsimony, short of that which would reduce his son to the necessity
of seeking public charity.
**3 Without doubt there are great interests of society which justify withholding the coercive arm of the
law from these duties of imperfect obligation, as they are called; imperfect, not because they are less
binding upon the conscience *211 than those which are called perfect, but because the wisdom of the social
law does not impose sanctions upon them.
A deliberate promise, in writing, made freely and without any mistake, one which may lead the party
to whom it is made into contracts and expenses, cannot be broken without a violation of moral duty. But if
there was nothing paid or promised for it, the law, perhaps wisely, leaves the execution of it to the
conscience of him who makes it. It is only when the party making the promise gains something, or he to
whom it is made loses something, that the law gives the promise validity. And in the case of the promise of
the adult to pay the debt of the infant, of the debtor discharged by the statute of limitations or bankruptcy,
the principle is preserved by looking back to the origin of the transaction, where an equivalent is to be
found. An exact equivalent is not required by the law; for there being a consideration, the parties are left to
estimate its value: though here the courts of equity will step in to relieve from gross inadequacy between
the consideration and the promise.
These principles are deduced from the general current of decided cases upon the subject, as well as
page 15
from the known maxims of the common law. The general position, that moral obligation is a sufficient
consideration for an express promise, is to be limited in its application, to cases where at some time or other
a good or valuable consideration has existed.FN1
FN1. Cook v. Bradley, 7 Connect. R. 57; Littlefield v. Shee, 2 Barnw. & Adol. 811; Yelv.
(Metcalf's ed.) 4 a, note 1; Parker v. Carter, 4 Munf. 273; M'Pherson v. Rees, 2 Penrose & Watts,
521; Pennington v. Gittings, 2 Gill & Johns. 208; Smith v. Ware, 13 Johns. R. 259; Edwards v.
Davis, 16 Johns. R. 281, 283, note; Greeves v. M'Allister, 2 Binn. 591; Chandler v. Hill, 2 Hen. &
Munf. 124; Fonbl. on Eq. by Laussat, 273, note; 2 Kent's Comm. (2nd ed.) 465.
Contra, Glass v. Beach, 5 Vermont R. 172; Barlow v. Smith, 4 Vermont R. 144; Commissioners of
the Canal Fund v. Perry, 5 Ohio R. 58.
See also Seago v. Deane, 4 Bingh. 459; Welles v. Horton, 2 Carr. & Payne, 183; Davis v. Morgan,
6 Dowl. & Ryl. 42.
A legal obligation is always a sufficient consideration to support either an express or an implied
promise; such as an infant's debt for necessaries, or a father's promise to pay for the support and education
of his minor children. But when the child shall have attained to manhood, and shall have become his own
agent in the world's business, the debts he in curs, whatever may be their nature, create no obligation upon
the father; and it seems to follow, that his promise founded upon such a debt has no legally binding force.
**4 The cases of instruments under seal and certain mercantile contracts, in which considerations need
not be proved, do not contradict the principles above suggested. The first import a consideration in
themselves, and the second *212 belong to a branch of the mercantile law, which has found it necessary to
disregard the point of consideration in respect to instruments negotiable in their nature and essential to the
interests of commerce.
Instead of citing a multiplicity of cases to support the positions I have taken, I will only refer to a very
able review of all the cases in the note in 3 Bos. & Pul. 249. The opinions of the judges had been variant for
a long course of years upon this subject, but there seems to be no case in which it was nakedly decided, that
a promise to pay the debt of a son of full age, not living with his father, though the debt were incurred by
sickness which ended in the death of the son, without a previous request by the father proved or presumed,
could be enforced by action.
It has been attempted to show a legal obligation on the part of the defendant by virtue of our statute,
which compels lineal kindred in the ascending or descending line to support such of their poor relations as
are likely to become chargeable to the town where they have their settlement. But it is a sufficient answer
to this position, that such legal obligation does not exist except in the very cases provided for in the statute,
and never until the party charged has been adjudged to be of sufficient ability thereto. We do not know
from the report any of the facts which are necessary to create such an obligation. Whether the deceased had
a legal settlement in this commonwealth at the time of his death, whether he was likely to become
chargeable had he lived, whether the defendant was of sufficient ability, are essential facts to be
adjudicated by the court to which is given jurisdiction on this subject. The legal liability does not arise until
these facts have all been ascertained by judgment, after hearing the party intended to be charged. FN1
FN1. See Cook v. Bradley, 7 Connect. R. 57; Wethersfield v. Montague, 3 Connect. R. 507, Dover
v. M'Murphy, 4 N. Hamp. R. 158??
For the foregoing reasons we are all of opinion that the nonsuit directed by the Court of Common Pleas
was right, and that judgment be entered thereon for costs for the defendant.
Mass. 1825.
Mills v. Wyman
page 16
3 Pick. 207, 20 Mass. 207, 1825 WL 1552 (Mass.)
Webb
Court of Appeals of Alabama
WEBB
v.
McGOWIN et al.
3 Div. 768
Nov. 12, 1935
Rehearing Denied Feb. 18, 1936
Appeal from Circuit Court, Butler County; A.E. Gamble, Judge.
Action by Joe Webb against N. Floyd McGowin and Joseph F. McGowin, as executors of the estate of
J. Greeley McGowin, deceased. From a judgment of nonsuit, plaintiff appeals.
Reversed and remanded.
*84 BRICKEN, Presiding Judge.
This action is in assumpsit. The complaint as originally filed was amended. The demurrers to the
complaint as amended were sustained, and because of this adverse ruling by the court the plaintiff took a
non-suit, and the assignment of errors on this appeal are predicated upon said action or ruling of the court.
A fair statement of the case presenting the questions for decision is set out in appellant's brief, which
we adopt.
“On the 3d day of August, 1925, appellant while in the employ of the W.T. Smith Lumber Company, a
corporation, and acting within the scope of his employment, was engaged in clearing the upper floor of mill
No. 2 of the company. While so engaged he was in the act of dropping a pine block from the upper floor of
the mill to the ground below; this being the usual and ordinary way of clearing the floor, and it being the
duty of the plaintiff in the course of his employment to so drop it. The block weighed about 75 pounds.
“As appellant was in the act of dropping the block to the ground below, he was on the edge of the
upper floor of the mill. As he started to turn the block loose so that it would drop to the ground, he saw J.
Greeley McGowin, testator of the defendants, on the ground below and directly under where the block
would have fallen had appellant turned it loose. Had he turned it loose it would have struck McGowin with
such force as to have caused him serious bodily harm or death. Appellant could have remained safely on
the upper floor of the mill by turning the block loose and allowing it to drop, but had he done this the block
would have fallen on McGowin and caused him serious injuries or death. The only safe and reasonable way
to prevent this was for appellant to hold to the block and divert its direction in falling from the place where
McGowin was standing and the only safe way to divert it so as to prevent its coming into contact with
McGowin was for **197 appellant to fall with it to the ground below. Appellant did this, and by holding to
page 17
the block and falling with it to the ground below, he diverted the course of its fall in such way that
McGowin was not injured. In thus preventing the injuries to McGowin appellant himself received serious
bodily injuries, resulting in his right leg being broken, the heel of his right foot torn off and his right arm
broken. He was badly crippled for life and rendered unable to do physical or mental labor.
“On September 1, 1925, in consideration of appellant having prevented him from sustaining death or
serious bodily harm and in consideration of the injuries appellant had received, McGowin agreed with him
to care for and maintain him for the remainder of appellant's life at the rate of $15 every two weeks from
the time he sustained his injuries to and during the remainder of appellant's life; it being agreed that
McGowin would pay this sum to appellant for his maintenance. Under the agreement McGowin paid or
caused to be paid to appellant the sum so agreed on up until McGowin's death on January 1, 1934. After his
death the payments were continued to and including January 27, 1934, at which time they were
discontinued. Thereupon plaintiff brought suit to recover the unpaid installments accruing up to the time of
the bringing of the suit.
“The material averments of the different counts of the original complaint and the amended complaint
are predicated upon the foregoing statement of facts.”
In other words, the complaint as amended averred in substance: (1) That on August 3, 1925, appellant
saved J. Greeley McGowin, appellee's testator, from death or grievous bodily harm; (2) that in doing so
appellant sustained bodily injury crippling him for life; (3) that in consideration of the services rendered
and the injuries received by appellant, McGowin agreed to care for him the remainder of appellant's life,
the amount to be paid being $15 every two weeks; (4) that McGowin complied with this agreement until he
died on January 1, 1934, and the payments were kept up to January 27, 1934, after which they were
discontinued.
The action was for the unpaid installments accruing after January 27, 1934, to the time of the suit.
*85 The principal grounds of demurrer to the original and amended complaint are: (1) It states no
cause of action; (2) its averments show the contract was without consideration; (3) it fails to allege that
McGowin had, at or before the services were rendered, agreed to pay appellant for them; (4) the contract
declared on is void under the statute of frauds.
[1] 1. The averments of the complaint show that appellant saved McGowin from death or grievous
bodily harm. This was a material benefit to him of infinitely more value than any financial aid he could
have received. Receiving this benefit, McGowin became morally bound to compensate appellant for the
services rendered. Recognizing his moral obligation, he expressly agreed to pay appellant as alleged in the
complaint and complied with this agreement up to the time of his death; a period of more than 8 years.
Had McGowin been accidentally poisoned and a physician, without his knowledge or request, had
administered an antidote, thus saving his life, a subsequent promise by McGowin to pay the physician
would have been valid. Likewise, McGowin's agreement as disclosed by the complaint to compensate
appellant for saving him from death or grievous bodily injury is valid and enforceable.
Where the promisee cares for, improves, and preserves the property of the promisor, though done
page 18
without his request, it is sufficient consideration for the promisor's subsequent agreement to pay for the
service, because of the material benefit received. Pittsburg Vitrified Paving & Building Brick Co. v.
Cerebus Oil Co., 79 Kan. 603, 100 P. 631; Edson v. Poppe, 24 S.D. 466, 124 N.W. 441, 26 L.R.A. (N.S.)
534; Drake v. Bell, 26 Misc. 237, 55 N.Y.S. 945.
In Boothe v. Fitzpatrick, 36 Vt. 681, the court held that a promise by defendant to pay for the past
keeping of a bull which had escaped from defendant's premises and been cared for by plaintiff was valid,
although there was no previous request, because the subsequent promise obviated that objection; it being
equivalent to a previous request. On the same principle, had the promisee saved the promisor's life or his
body from grievous harm, his subsequent promise to pay for the services rendered would have been valid.
Such service would have been far more material than caring for his bull. Any holding that saving a man
from death or grievous bodily harm is not a material benefit sufficient to uphold a subsequent promise to
**198 pay for the service, necessarily rests on the assumption that saving life and preservation of the body
from harm have only a sentimental value. The converse of this is true. Life and preservation of the body
have material, pecuniary values, measurable in dollars and cents. Because of this, physicians practice their
profession charging for services rendered in saving life and curing the body of its ills, and surgeons
perform operations. The same is true as to the law of negligence, authorizing the assessment of damages in
personal injury cases based upon the extent of the injuries, earnings, and life expectancies of those injured.
In the business of life insurance, the value of a man's life is measured in dollars and cents according to
his expectancy, the soundness of his body, and his ability to pay premiums. The same is true as to health
and accident insurance.
It follows that if, as alleged in the complaint, appellant saved J. Greeley McGowin from death or
grievous bodily harm, and McGowin subsequently agreed to pay him for the service rendered, it became a
valid and enforceable contract.
2. It is well settled that a moral obligation is a sufficient consideration to support a subsequent
promise to pay where the promisor has received a material benefit, although there was no original
duty or liability resting on the promisor. Lycoming County v. Union County, 15 Pa. 166, 53 Am.Dec.
575, 579, 580; Ferguson v. Harris, 39 S.C. 323, 17 S.E. 782, 39 Am.St.Rep. 731, 734; Muir v. Kane, 55
Wash. 131, 104 P. 153, 26 L.R.A. (N.S.) 519, 19 Ann.Cas. 1180; State ex rel. Bayer v. Funk, 105 Or.
134, 199 P. 592, 209 P. 113, 25 A.L.R. 625, 634; Hawkes v. Saunders, 1 Cowp. 290; In re Sutch's
Estate, 201 Pa. 305, 50 A. 943; Edson v. Poppe, 24 S.D. 466, 124 N.W. 441, 26 L.R.A. (N.S.) 534; Park
Falls State Bank v. Fordyce, 206 Wis. 628, 238 N.W. 516, 79 A.L.R. 1339; Baker v. Gregory, 28 Ala.
544, 65 Am.Dec. 366. In the case of State ex rel. Bayer v. Funk, supra, the court held that a moral
obligation is a sufficient consideration to support an executory promise where the promisor has
received an actual pecuniary or material benefit for *86 which he subsequently expressly promised to
pay.
The case at bar is clearly distinguishable from that class of cases where the consideration is a
mere moral obligation or conscientious duty unconnected with receipt by promisor of benefits of a
material or pecuniary nature. Park Falls State Bank v. Fordyce, supra. Here the promisor received a
material benefit constituting a valid consideration for his promise.
page 19
3. Some authorities hold that, for a moral obligation to support a subsequent promise to pay,
there must have existed a prior legal or equitable obligation, which for some reason had become
unenforceable, but for which the promisor was still morally bound. This rule, however, is subject to
qualification in those cases where the promisor, having received a material benefit from the
promisee, is morally bound to compensate him for the services rendered and in consideration of this
obligation promises to pay. In such cases the subsequent promise to pay is an affirmance or
ratification of the services rendered carrying with it the presumption that a previous request for the
service was made. McMorris v. Herndon, 2 Bailey (S.C.) 56, 21 Am.Dec. 515; Chadwick v. Knox, 31
N.H. 226, 64 Am.Dec. 329; Kenan v. Holloway, 16 Ala. 53, 50 Am.Dec. 162; Ross v. Pearson, 21 Ala.
473.
Under the decisions above cited, McGowin's express promise to pay appellant for the services rendered
was an affirmance or ratification of what appellant had done raising the presumption that the services had
been rendered at McGowin's request.
[3] 4. The averments of the complaint show that in saving McGowin from death or grievous bodily
harm, appellant was crippled for life. This was part of the consideration of the contract declared on.
McGowin was benefited. Appellant was injured. Benefit to the promisor or injury to the promisee is a
sufficient legal consideration for the promisor's agreement to pay. Fisher v. Bartlett, 8 Greenl. (Me.) 122,
22 Am.Dec. 225; State ex rel. Bayer v. Funk, supra.
5. Under the averments of the complaint the services rendered by appellant were not gratuitous. The
agreement of McGowin to pay and the acceptance of payment by appellant conclusively shows the
contrary.
[4] 6. The contract declared on was not void under the statute of frauds (Code 1923, § 8034). The
demurrer on this ground was not well taken. 25 R.C.L. 456, 457 and 470, § 49.
**199 The cases of Shaw v. Boyd, 1 Stew. & P. 83, and Duncan v. Hall, 9 Ala. 128, are not in conflict
with the principles here announced. In those cases the lands were owned by the United States at the time
the alleged improvements were made, for which subsequent purchasers from the government agreed to pay.
These subsequent purchasers were not the owners of the lands at the time the improvements were made.
Consequently, they could not have been made for their benefit.
From what has been said, we are of the opinion that the court below erred in the ruling complained of;
that is to say, in sustaining the demurrer, and for this error the case is reversed and remanded.
Reversed and remanded.
SAMFORD, Judge (concurring).
The questions involved in this case are not free from doubt, and perhaps the strict letter of the rule, as
stated by judges, though not always in accord, would bar a recovery by plaintiff, but following the principle
announced by Chief Justice Marshall in Hoffman v. Porter, Fed.Cas. No. 6,577, 2 Brock. 156, 159, where
he says, “I do not think that law ought to be separated from justice, where it is at most doubtful,” I concur
in the conclusions reached by the court.
page 20
page 21
[Adapted from Brewer, Exemplary Reasoning: Semantics, Pragmatics, and the
Rational Force of Legal Reasoning By Analogy, pages 1017-1021]
Defeasibility and Disanalogy
The semantics of defeasibility
The interpretive reconstruction of reasoning by disanalogy also enables us to explain the
widespread phenomenon of defeasibility in legal interpretive argument. As most
philosophers understand the concept of defeasibility, a defeasible argument is one in
which the addition of premises can weaken the force of epistemic warrant that the
premises the conclusion. Because the addition of premises cannot undermine the force of
a conclusion in a valid deductive argument, defeasibility usually is treated as a property
of inductive arguments. Compare the following propositions:
(1) Most Fs are Gs.
(2) x is an F.
(3) Thus, x is a G.
Proposition (3) does not follow deductively from (1) and (2) but rather is ‘made probable‘
by them (when the conditions of F and G are controlled in certain ways). Adding
premises to this argument can undercut the force of the conclusion as, for example, the
following premises do:
(1a) Most FHs are not Gs.
(1b) x is an FH.
In deductive argument, by contrast, one cannot ‘defease‘ the argument by adding new
premises. And yet, the phenomenon of defeasibility *1018 has long been recognized as a
deep part of (at least) Anglo-American legal decisionmaking, as I have implicitly
conceded in my discussion of Mills. Can I have it both ways -- that defeasibility is part of
legal decisionmaking but legal decisionmaking still relies on deductions?
The short answer is yes, and the short explanation of that answer is that, for many
reasons, including those discussed above regarding the rule of law regulative ideal norms,
‘defeasing‘ decisions such as those by Judge Parker in Mills are best reconstructed from a
logical point of view as changes in the law, as reflected by changes in the logical
structure of analogized and disanalogized legal rules, rather than as the addition of new
premises to a perpetually open-ended premise set (as in inductive arguments). This is a
different conception of defeasibility than philosophers usually recognize -- let us call it
‘deductive defeasance’ -- but it is one that makes the best sense of modifications of
deductive rules, such as modification of the rule ‘if P then Q’ to a rule ‘if P then Q, unless
R’. I have illustrated above how the model of disanalogy can handle the deductive
defeasance phenomenon, understood in this way. But semantics does not tell the whole
story of defeasibility. As in several discussions above, we should attend also to pragmatic
considerations.
page 22
The Pragmatics of Deductive Defeasance: The Role of Defeasing Norms in Anglo-American Law
Deductive defeasance has a special character in the institutional settings in which
justificatory legal interpretive reasoning takes place. In those settings, legal interpretive
reasoning is guided by two special norms (among others) that are in important ways
closely analogous, one in Anglo-American common law and the other in the law of
American federal jurisdiction. The common law norm is usually referred to by the
distinction between ratio decidendi and obiter dicta; I will call it the ‘ratio‘ norm. The
American federal law norm is the ‘case-or-controversy‘ limit of federal jurisdiction
(which is effected by such prudential and jurisdictional norms as mootness, ripeness,
standing, and abstention) under Article III, Section 2 of the Constitution.
I argued above that the special institutional setting of legal interpretive reasoning places
pragmatic limits on the logical form of exemplary arguments (namely, this setting
requires that exemplary arguments rely on deductively applicable analogy-warranting
rules). *1019 The ratio and case-or-controversy norms effect similar pragmatic
constraints on legal interpretive reasoning when the object of interpretation is a
precedent. For our purposes here, a ‘precedent‘ is a text produced by a legal interpretive
authority (a judge), written to resolve particular claims in a (legally) justified manner,
printed in an official law report. According to the ratio norm, the authoritative force of a
precedent is limited to those particular factual characteristics in the dispute that the
precedent resolves that are a relevantly necessary part of the precedent's (legal)
justification. According to the analogous case-or-controversy norm, federal judges may
exercise Article III judicial power only insofar as they are resolving a live ‘case or
controversy,‘ and they may not render so-called ‘advisory opinions‘ apart from the
context of a live dispute.
These pragmatic, institutional normative constraints are interpretive norms that guide the
interpretation of judicial opinions. Both norms dictate that only some acts of interpretive
reasoning can have formal, authoritative, binding force on future legal interpreters. This
means that, when interpreting those cases, legal interpreters must treat as binding law
only that part of the opinion that addressed relevant particulars in that case. Moreover, as
these norms are deployed in the Anglo-American system, later interpreters are free to rely
on their own judgments about the authoritative scope of a precedent, even when that
judgment appears to be at odds with the judgment of the author(s) of the precedent; this is
the practice known as ‘distinguishing‘ cases. In giving legal interpreters this kind of
interpretive power, both norms build defeasibility (both as traditionally understood and in
the deductive defeasance sense) into the legal reasoning system. Thus, we may call them
‘defeasing norms.‘
To follow the dictates of the defeasing norms, legal interpreters rely on the resources of
reasoning by disanalogy. In large part, it is their acceptance of the defeasing norms
(along with the rule of law norms of clarity, notice, and accountability) that motivates
judges to behave in writing opinions as the law of deductive form predicts they will. The
defeasing norms pressure a judge who concludes that a party does not satisfy a criterion
for a legal concept not to articulate a sufficient condition for the concept, and they
pressure a judge who concludes that a party does satisfy a criterion not to articulate a
page 23
necessary condition. This important institutional limitation on judges' interpretive
powers is widely recognized by judges and lawyers -- indeed, recognized widely enough
that some theorists reconstruct legal arguments to reflect at least a tacit recognition of that
limitation.
This analysis of deductive defeasance also suggests an additional reason for which
examples are important in exemplary reasoning even though, in a sense, they become
conceptually subordinate to the analogy-warranting rules that are abduced and confirmed
in the course of exemplary reasoning. One reason for which an exemplary reasoner finds
it useful to pay attention to source examples once the AWR that covers the target has
been adduced is that, in a context of doubt, the legal reasoner uses the resources of
analogy both to build and to maintain confidence in her judgment about how that doubt is
to be resolved in light of the well-known fact that later judges may well come along and
rewrite the AWR. One of the most important ways in which legal analogists seek to build
and maintain that confidence is by averring that defeasibility itself is ‘defeated‘ in the
target case under consideration because it was likewise defeated in the relevantly similar
source case -- where the AWR supplies the criteria of ‘relevant similarity.‘ That is, the
reasoner keeps her eye on the shared characteristics of source and target and thus does
not simply dispense with the source example, because she is confident that source and
target are alike in the respects specified by the AWR, that those respects are relevant to
being ‘defeased‘ or not, that the source case managed to defeat defeasibility, and that
therefore one ought to adjudge defeasibility as being likewise defeated in the target case
as well. Thus, although from a semantic point of view the actual source example seems
conceptually dispensable, the continuing focus on it in exemplary reasoning has
perduring epistemic (and rhetorical) pragmatic value throughout the course of a particular
exemplary inference. In this way, exemplary reasoning is (dare one say it) analogous to
abductive *1021 inference in that there are pragmatic reasons justifying an inferential
practice that seems unjustifiable on solely semantic grounds.
To be sure, a judge who reasons analogically knows that a later judge (indeed, he himself
in a later case) has, by virtue of the defeasing norms, the interpretive power to rewrite his
analogy-warranting rule in a manner that narrows the set of jointly sufficient conditions
for the inferred characteristic. No doubt this awareness often imposes some discipline on
the judge as he fashions his AWRs, but in representing judges' (and others') patterns of
exemplary argument, we need not represent this awareness in the schemas themselves. A
judge fashions the AWR and defends it with an analogy-warranting rationale as best he
can within the limits of his argumentative capacities, knowing that he does not have the
power (indeed, one may guess that he usually does not have the desire) to fix for all time
his AWR.
Semantics and epistemic background for the foregoing discussion of disanalogy and
defeasibility: generality, specificity, vagueness, and open-texture
Generality and Specificity
'General' and 'specific' are antonyms that state logical relations among terms,
specifically, the relation of categorical subsumption. Term A is more general than term
page 24
B if and only if everything that is a B is an A, but there is at least one thing that is an A
that is not also a B
E.g., 'animal' is more general than 'cat' -- everything that is a cat is an animal, but
there is at least one thing that is an animal that is not a cat
A term is neither general nor specific in isolation, but rather is one or the other only in
relation to another term that can be measured in terms of common categories. Thus
'animal' cannot be said to be general in isolation, nor specific in isolation, for 'general'
and 'specific' are relational terms; 'animal' is general when compared to 'cat,' but specific
when compared to 'living thing.'
Vagueness, Precision, and Open Texture
Vagueness and precision
We can be even more precise (!) than we were in the previous section in our definition of
the term 'vague'. A vague term or phrase is one about whose criteria of application,
regarding a given object or set of objects, at a specific time, a language user or group of
language users has some doubt, but the doubt the language user has is not the result of
lack of competence with the term in question or of some other linguistic incompetence
with the language in which the term or phrase occurs. The phrase "criteria of application"
refers to the bundle of necessary and sufficient conditions for the term (as, the criteria
'male and unmarried' provide necessary and sufficient conditions for the term 'bachelor').
To have doubt about the criteria of application of a term or phrase is to have doubt about
the proper scope of that term or phrase.
'Precise' (note: not 'specific') is the antonym for 'vague'. A precise term is one about
whose application to a given object or set of objects, at a specific time, a given language
user (or group) has no doubt. Because there are degrees of doubt, measurable in different
ways, both for an individual language user and among a group of language users (such as
a panel of judges), vagueness and precision may be thought of as ends of a spectrum.
Understood this way, vagueness is one of the principal contexts of doubt in which legal
interpreters call upon the resources of legal analogy.
Unidimensional and multidimensional vagueness
One can also usefully distinguish unidimensional vagueness from multidimensional
vagueness – this is the semantic phenomenon Wittgenstein famously referred to in his
discussions of "family resemblance."
Unidimensional vagueness arises regarding a single concept, like 'heap' or 'tall' –
the sort of term that occasions the classical sorites paradoxes (e.g., because any
man who is 1 mm shorter than a tall man is tall, every man is tall).
page 25
Multidimensional vagueness arises when speakers associate several criteria
(necessary or sufficient conditions) with a concept without any widespread
agreement about which conditions for the concept are necessary and which
sufficient.1 ('Vehicle' seems to belong in this category.)
Note that the Implicit in the definition of 'vague' offered above calls attention to what
might even be thought to be a distinct species of vagueness. This is the use of a term
where it is not an individual language user's uncertainty about the term that occasions
doubt about its meaning, but rather disagreement among a group of users of the same
term that occasions uncertainty among the group taken as a whole. This is of course an
extremely common phenomenon in legal disputes, as legal interpreters taken as a group
disagree among themselves about the meaning of 'equal protection,' 'due process,'
'reasonable,' and the like.
Open texture
An open textured term is a term that has the possibility of vagueness at some time, even if
it is not vague on some particular occasion of use. This conception of open-texture
suggests that vagueness is relative to: term, language user(s), time of application of
term, and "application group" (set of objects to which the term might be applied). Thus,
even a term that is not vague relative to some particular time, some particular language
user(s), and some particular application group, might become vague when one of the
relativized variables is changed. It is the possibility of becoming vague that is named by
the term "open texture."
Example:
Consider a municipal ordinance mandating "Every owner of a vehicle that enters
the part shall receive a $100 fine."
At time 1, a judge, applying the ordinance, has before her the owner of a Hummer
who drove it into the part for a tailgate party. If that judge is a typical speaker of
English, the term 'vehicle' will not be vague relative to her, at time 1, with regard
to the Hummer, and the judge will impose the fine under the ordinance.
At time 2, later, the same judge, applying the same ordinance, has before a her
ten-year-old owner of roller blades who skated into the park. If that judge is a
typical speaker of English, the term 'vehicle' may be vague relative to her, at time
2, with regard to the skates, and the judge will be unclear about whether to impose
the fine under the ordinance.
A term like 'vehicle' is "open textured" when it is possible that a term that is not currently
vague (in the example above at time 1) will become vague (as it does in the example
above at time 2), either because of a change in the language user of the term, or a change
1
See the discussion in Jeremy Waldron, Vagueness in Law and Language, 82 CAL. L. REV. 509, 517-19
(1994)
page 26
in the object(s) to which the user is considering applying the term (the latter was the
change present in the shift from time 1, with the Hummer being the candidate for
"vehicle," to time 2, with the skates being the candidate for "vehicle").
Generality-specificity vs. vagueness-precision
It's important to recognize that the linguistic phenomena labeled by the pair of terms
generality -specificity are distinct from the pair labeled by the pair of terms vaguenessprecision. There is no necessary connection between generality and vagueness or
between specificity and precision. Sometimes a pair of terms consisting of a more
general term and a more specific term will be equally vague in some context, sometimes
the more general term will be less vague, sometimes it will be more vague. For example,
'living thing' is both more general than, and (probably) more vague than 'tree', so in this
instance the more general term ('living thing') is also the more vague term. But
sometimes the more precise term can be the more vague, for example, 'good boy' is more
precise than 'boy', and also seems more vague than 'boy'.
Vagueness, open texture, and deductive argument
Suppose a school administrator is charged with the task of enforcing a dorm regulation
that reads,
Any person who keeps a cat or dog in any dorm room shall be subject to a fine
and possible eviction.
Hypo I: Student brings Hootch into the dorm, and Hootch is clearly a dog.
Can we adequately represent the reasoning as simply a matter of deduction?
Argument I
(1) Any person who keeps a cat or dog in any dorm room shall be subject to a fine
and possible eviction. [Major premise]
(2) This student kept a cat or dog in a dorm room. [Minor premise]
(3) Therefore, this student is subject to a fine and possible eviction. [Conclusion]
Hypo II: The student has brought into the dorm an animal that, though it looks a lot like a cat, is also
capable of reciting famous political speeches in English.
Again, can we adequately represent the reasoning as simply a matter of deduction?
With Hypo II in mind, assume for the sake of illustration that the administrator had never
been faced with a "borderline beast" before the student in Hypo II and his speechdelivering cat came to the administrator's attention. Call this time prior to the appearance
of the student and his animal "Time 1." On this assumption, for that administrator, at
Time 1, the term 'cat' was precise, i.e., not vague, for that administrator, relative to the set
of objects over which the administrator applied the term 'cat'. However even at Time 1,
the term was open-textured. Now compare Hypo I and Hypo II. A student who brought
page 27
Hootch into the dorm would be evicted with full deductive forthrightness. But when the
student with the logorheiic cat appeared (call this "Time 2"), the open-textured term 'cat'
became actively vague for this administrator. No longer could swift deductively
generated punishment be meted out, for the administrator was at least temporarily unsure
(I am supposing) whether this marvelous beast was indeed a cat at all -- and that
uncertainty could not be attributed to lack of competence with the English language or
with the term 'cat'. Note that there would be no problem with generating the major
premise
(1) Any person who keeps a cat or dog in any dorm room shall be subject to a fine
and possible eviction
-- for, in Hart's terms, it could be identified by reference to Rules of Recognition.
However, in applying this major premise to this student and this animal at Time 2, the
minor premise would not yet have a truth value, and so could not serve as the deductive
link between the major premise and the conclusion:
(2)
???This student kept a cat or dog in a dorm room???
To resolve the case before him, the administrator must decide whether this doubtful
creature is a cat for the purposes of the regulation (this is, by the way, a prime
opportunity for deploying the resources of reasoning by analogy, as we shall see.)
Here's the broader point about this thought experiment: One cannot deductively apply a
predicate to a particular object or set of objects when that predicate is actively vague2 –
that is, when the predicate is one about whose application on a particular occasion of use
a language user or group of users is or are in doubt. (This is a more modest, and I think
more defensible version of Dewey's much broader claim in Logical Method and Law, in
which he is committed to the claim that all legal arguments that apply legal rules to
particular fact patterns are defeasible and cannot be adequately represented as valid
deductive inferences.3) The reason for this is that deductive application of a predicate
requires the assignment of a truth value to the proposition that states that a given
individual has the property named by the predicate, but the whole point about an actively
2
Given the definition of vagueness, the phrase "actively vague" is perhaps redundant. I use it only for
emphasis.
3
See Dewey, Logical Method and Law 22: "Take the case of Socrates being tried before the Athenian
citizens, and the thinking which had to be done to reach a decision. Certainly the issue was not whether
Socrates was mortal; the point was whether this mortality would or should occur at a specified date and in a
specified way. Now that is just what does not and cannot follow from a general principle or a major
premise. Again to quote Justice Holmes, "General propositions do not decide concrete cases." No concrete
proposition, that is to say one with material dated in time and placed in space, follows from any general
statements or from any connection between them." Certainly the standard -- intuitively appealing? -- idea
about the logical form that can adequately represent those legal arguments that apply rules to facts is the
logical form of the deductive syllogism, and in the quotation above Dewey does seem to deny that legal
arguments are ever syllogistic. So, if all legal arguments applying rules to facts are syllogistic, then Dewey
is committed to the idea that all legal arguments are defeasible and none can be deductively valid.
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vague term is that, prior to resolution of the vagueness, the language user is uncertain
about its truth value.
Hart's diagnosis: open texture and vagueness in (legal) rules
Empirical language -- language applied to objects of experience -- is ineliminably opentextured because of human limitations, esp. (i) relative indeterminacy of aim when
constructing concepts (cat, vehicle, contract, etc.) and the rules, especially legal rules, in
which those concepts play a central role; (ii) relative ignorance of fact when
constructing concepts and (especially legal) rules.
Hart's reply to legal realist rule skeptics: open-texture explanation of deduction in legal reasoning
"If a penumbra of uncertainty must surround all legal rules, then their application
to specific cases in the penumbral area cannot be a matter of logical deduction,
and so deductive reasoning, which for generations has been cherished as the very
perfection of human reasoning, cannot serve as a model for what judges, or
indeed anyone, should do in bringing particular cases under general rules. In this
area men cannot live by deduction alone."4
"None the less, the life of the law consists to a very large extent in the guidance
both of officials and private individuals by determinate rules which, unlike the
application of variable standards, do not require fresh judgment from case to
case." [COL 135.8]
A "punctuated equilibrium" model of revisable deductively applicable rules5
The "punctuated equilibrium" model of revisable deductively applicable rules has the
grand ambition of being plausible, fully consistent with what we know about our actual
world (including facts about legal systems and the nature of legal argument), and offering
the best explanation of those actual facts about this world and the legal arguments
constructed within it. Like Hart's open-texture argument (with which the punctuated
equilibrium model is fully consistent), this model can compete with the explanation of
legal argument proposed by Holmes (?), Dewey, and other like-minded legal realists.
The model can be presented with an abstract example and then with a concrete example.
Abstract hypothetical example for the "punctuated equilibrium" model
Consider a regime of rules in which the following occurs. At time T1 it is established
that
(1) All F are G
4
H.L.A. Hart, Positivism and the Separation of Law and Morals: 71 HARV. L. REV. 593, 607-08 (1957)
(emphasis added); see also J.L. AUSTIN, PHILOSOPHICAL PAPERS 67-68 (1979)
5
This is a slightly edited version of an argument presented in Brewer, On the Possibility
of Necessity in Legal Argument: A Dilemma for Holmes and Dewey.
page 29
("all things that are F are G") is true. At a later time, T2, it is established that
(2) Some F are H
and
(3) No H is G
("some things that are F are H" and "no things that are H are G") are both true. (1), (2),
and (3) form an inconsistent set of propositions, that is, there is no possible world in
which all three propositions are true. We have at least three explanatory options if we
were to try to explain what has happened in the transition from time T1 to time T2.
Option 1: We say that, in light of the fact that (2) and (3) came to be established
as truths, we should revise (1) in the following way. We should give up the view
held at time T1 that (1) was true (was a true universal generalization about all
members of the F category), and, in light of the new information provided by (2)
and (3), say that actually, even at time T1, only a logically weaker version of (1)
was true, namely,
(4) Some F are G ("some things that are F are also G").
Option 2: We say that, in light of the fact that (2) and (3) came to be established
as truths, we should revise (1) in the following way. We should say that, at time
T2 , what is true is the logically narrower proposition
(5) All F that are not also H are G ("all things that are F and are not also H are
G").
A crucial difference between Option 1 and Option 2 is that in Option 2 we hold (5) true
without also saying that (1) was not true at time T1. Instead, we allow that (1) was true at
time T1 and that (5) is true at time T2 .
Option 3: We say that all three propositions, (1), (2), and (3), are true at time T2
(we are here not concerned about time T1 ). This means that our total set of
propositions is inconsistent (there is no possible world in which all three
propositions are true), which among other things means that every (well formed)
proposition follows validly from the conjunction of (1), (2), and (3)--including
two contradictory propositions.
Concrete hypothetical example for the "punctuated equilibrium" model
Let's look at these three basic options for explaining rule change with a less abstract
example. At some time within the past two decades, the National Basketball Association
("NBA") adopted a new rule for the scoring of "field goals." A field goal is an in-bounds
shot made during regular play (a shot is made when the ball goes through the hoop), not
during time-out, not during time for foul shots, etc. Before the adoption of the new rule,
every field goal was worth exactly two points. Under the new rule, a field goal shot from
a certain specified perimeter distance beyond the basket is worth exactly three points.
The perimeter area is marked by a clearly visible line on the court (call this the "three
page 30
point boundary"), so that players and spectators and referees can fairly easily determine
which shots were taken from beyond the perimeter (though of course there would be
some "vague shots," namely, those shots in which it was not clear whether the player was
outside of the perimeter). Let us call time T1 the time before this new rule was adopted,
i.e., the time at which this proposition was true in the "jurisdiction" of the NBA:
(6) All field goals are to be scored at exactly 2 points.
Let us refer to time T2 as the time after which the new rule was adopted, i.e., the time at
which this proposition was true in the "jurisdiction" of the NBA:
(7) All field goals shot from beyond the three point boundary are to be scored at
exactly 3 points.
Once again, there are at least three options for explaining the change in rules from T1 to
T2 .
Option 1: We say that, in light of the fact that (7) came to be established as a truth
in the NBA regime, we should revise (6). We should give up the view held at
time T1 that (6) was true (that is, that it was a true universal generalization about
the scoring value of all field goals), and, in light of the new information provided
by (7), say that actually, even at time T1 , only a logically weaker version of (6)
was true, namely,
(8) Some field goals are to be scored at exactly 2 points.
Option 2: We say that, in light of the fact that (7) came to be established as true in
the NBA regime, we should revise (6) in the following way. We should say that,
at time T2 , what is true is the logically narrower proposition:
(9) All field goals shot from within the three point boundary are to be
scored at exactly 2 points, and all field goals shot from beyond the three
point boundary are to be scored at exactly 3 points.
Once again, a critical difference between Option 1 and Option 2 is that in Option 2 we
come to hold (9) true without also saying that (6) was not true at time T1. Instead, we
allow that (6) was true at time T1 and that (9) is true at time T2.
Option 3: We say that both propositions are true at time T2 (we are here not
concerned about time T1). This again would mean that our total set of
propositions is inconsistent, and would allow for one and the same shot (one taken
from beyond the three point boundary) to be scored at exactly three points and
also to be scored at exactly two points.
Here's the payoff of these two examples. If applied to the NBA example, the HolmesDewey defeasibility thesis is committed to Option 1 as an explanation of the change in
page 31
rules, while the deductive punctuated equilibrium model is committed to Option 2.
Notice that, as a matter of educated intuition, the Holmes-Dewey option seems rather
unpromising as an explanation of the change in the NBA rules. Should we really say that
now (our current period is within time T2) the three-point rule (9) is defeasible, simply
because the authorized NBA rule makers might modify it sometime in the future? That
is, must we deny that we can deduce that any particular shot taken from beyond the three
point boundary is worth exactly three points?
page 32
Answers to Selected Exercises
i
Exercise 1
Roughly speaking: when the analogical reasoning converts the example of what I am doing into a rule, the
rule will read
If one does X [X is the relevant description of what Brewer is doing] then one is doing what
Brewer is doing.
From which one then can make the argument with the minor premise,
I am doing X [analogical]
I am not doing X [disanalogical]
therefore
I am doing [analogical] what Brewer is doing
I am not doing [disanalogical] what Brewer is doing
ii
Exercise 2
ARGUMENT BY ANALOGY:
sources for the analogical argument:
x1 cows
x2 chickens
x3 pigs
x4 sheep
target:
y (Fido)
Shared characteristic:
F: helps to produce income on the farm
Inferred characteristic:
I: included in the sale of the farm
AWRule:
anything that has F also has I
AWRationale:
Perhaps: intent of the contracting parties, or, what a reasonable person
would interpret from this contract language (see Holmes, "The Theory
of Legal Interpretation," posted to the course site for Session 6.1.1)
ARGUMENT BY DISANALOGY:
sources for the disanalogical argument:
x1 cows
x2 chickens
page 33
x3 pigs
x4 sheep
target:
y (Fido)
Shared characteristic:
F: is used for income production on the farm
Unshared characteristic:
Is primarily used for income-production on the farm
Inferred characteristic:
I: included in the sale of the farm
AWRule:
anything that has F also has I
AWRationale:
Perhaps: intent of the contracting parties
or perhaps" what a reasonable person would interpret from this contract
language (see Holmes, "The Theory of Legal Interpretation," posted to
the course site for Session 6.1.1)
iii
Exercise 4a
[See my discussion from previous handout on propositional logic applied to the law on "domination"
of logical operators to understand the following representation of the argument-enthymeme in
Monge]
(1) IF
there is a termination by the employer of a contract of employment at will which is motivated by
bad faith
OR
there is a termination by the employer of a contract of employment at will which is motivated by
malice
OR
there is a termination by the employer of a contract of employment at will which is based on
retaliation
THEN
there is a firing that “is not in the best interest of the economic system or the public good”
AND
there is a firing that constitutes breach of the employment contract
(warrant for this step in the argument?)
page 34
declaration by legal authority, Monge majority, of (new) legal rule
(2) IF (there is sufficient evidence to support a jury finding that there is a termination by the employer of a
contract of employment at will which is motivated by bad faith or malice or based on retaliation), THEN
(there is a termination by the employer of a contract of employment at will which is motivated by bad faith
or malice or based on retaliation).
(warrant for this step in the argument?)
declaration by legal authority, Monge majority, of (existing) legal rule
(3) There is sufficient evidence to support a jury finding that there is a termination by the employer of a
contract of employment at will which was motivated by bad faith or malice or based on retaliation,
(warrant for this step in the argument?)
declaration by legal authority, Monge majority – factual judgment
Therefore (first conclusion),
(4) There was a termination by the employer of a contract of employment at will which is motivated by
bad faith OR malice OR based on retaliation
warrant?: from 2 and 3
Therefore (second conclusion),
(5) The firing “is not in the best interest of the economic system or the public good” AND constitutes
breach of the employment contract.
warrant: from 1 and 4
page 35
iv
Exercise 4b
x:
y:
source cases, involving landlords-tenants
target case, involving at-will employee Monge
Shared characteristic
F:
was a case in which a "long-standing common law rule" (17.7, 17.8) is heavily
weighted to give one party substantial power over another
[note: there may be other accurate characterizations of the shared characteristic -- does any occur
to you?]
Inferred characteristic
G:
the common law rule is to be modified to "conform to modern circumstances", to
"reflect changing legal, economic, and social conditions"
Argument:
(1)
x has F
(2)
y has F
(3)
x also has G
(4)
?? All things that have F have G
[deductive commitment in the analogy-warranting rule?]
?? Some things that have F have G
[inductive commitment in the analogy warranting rule?]
[Note: this is the "analogy warranting rule"]
Therefore,
(5)
z is G
AWRa???
v
Exercise 5
Target (“y”) = Howard facts, the case "sub judice"
Source (“x”) = Monge facts
Shared characteristic - F: an employee is fired in malice, retaliation, or bad faith
Inferred characteristic - H: the employer's act of firing is an actionable wrong
Unshared characteristic - G: the employee was fired for doing something public policy
required or for refusing to do something that public policy prohibited
DWRa: ???

Note: Howard apparently assumes that y has F, at least for the sake of argument; if it did not make that
assumption, there would be no reason to consider characteristic G (and that discussion would be pure
page 36
"dictum"), since the Howard plaintiff would already have failed to satisfy the other condition of
Monge, namely, F.

The Howard court's disanalogical argument about Monge, a use of disanalogy to "narrow" and
"distinguish" Monge, adds an additional jointly sufficient individually necessary condition.

The court's reasoning then has two steps: disanalogy and then deduction using the new rule the court
fashioned by disanalogy.
vi
Exercise 7
target:
"My senses sometimes deceive me, therefore it's possible that they could always deceive me."
[Put in a form more obviously structurally the same as the source examples above: Some
sensings are deceivings, therefore it's possible that all sensings are deceivings.]
sources:
"Some paintings are forgeries, therefore it's possible that all paintings are forgeries."
"Some numbers are less than 6, therefore it's possible that all numbers are less than six."
Shared characteristic:
The argument has the logical form:
Some things that are X are Y, therefore it's possible that all things that are X are Y.
Inferred characteristic:
is an invalid argument
Analogy warranting rule:
Any argument that has the logical form Some things that are X are Y, therefore it's possible that
all things that are X are Y is invalid.
Analogy Warranting rationale
The principle of deductive logic that says, any argument that has the same logical form as an
invalid argument is itself invalid.
Here the analogy is completely deductive. By the way -- and for closely related reasons -- sometimes
abductive arguments (inferences to the best explanation) are wholly deductive, and sometimes inductive.
For a fascinating exploration of deductive abductions, see G. Polya's two-volume set Mathematics and
Plausible Reasoning.
Note also that much creativity is required to discover the relevant source examples as well as to discover
the best explanation of relevant similarity (or dissimilarity) that is indicated by the analogy warranting rule.
That's true even when the analogy or disanalogy is in a deductive field like logic or math, and massively
more true (?) when the analogies and disanalogies are in law.