Is Legal Analogy Reducible to Balancing? A Critique of Bartosz Brożek’s “Partial Reductibility Thesis”
摘要
This article deals with what is traditionally called “legal analogy”. Despite being one of the classic topics of general jurisprudence, our understanding of this type of argument remains quite limited. Indeed, there are at least three central questions that are still far from receiving an uniform answer: What is the structure of legal analogy? What are its rules of use? And, finally, what is its force? Over the past fifteen years, several authors have proposed a new kind of reductionist explication, according to which the structure, rules of use, and force of legal analogy are reducible—either wholly or partially—to those of another argumentative scheme: balancing. Among this group of authors, it is Bartosz Brożek who has developed the most detailed version of this type of reductionist explanation, which he himself has named the “Partial Reductibility Thesis”. My aim here is precisely to rebut this thesis.