Electronic copy available at: http://ssrn.com/abstract=2017469 Electronic copy available at: http://ssrn.

com/abstract=2017469

Thomas Bustamante
*

Finding Analogies between Cases: On Robert Alexys Third
Basic Operation in the Application of Law





A. Introduction

The point of this essay is to discuss in a critical way one of Robert Alexys recent
developments to his theory of legal argumentation. While in his earlier writings
Alexy distinguished only two basic operations in the application of law, subsumption
and balancing, he has recently changed this theory to claim that legal analogy, or
comparison of cases, also figures as a third basic operation which shares the same
general features of the former two. My purpose, therefore, will be to answer whether
Alexy is right when he holds that the comparison of cases can stand besides balancing
and subsumption as a basic operation in the application of law.


B. The Two Original Basic Operations in the Application of Law

Alexy has held since his earlier writings that the distinction between rules, as
definitive requirements, and principles, as optimization requirements, was correlative
to a differentiation between the basic operations of subsumption and balancing. Since
rules have a binary structure and contain fixed points which require one to do exactly
what they say, they are norms which are always either fulfilled or not.
1
Every legal
rule can be applied, hence, according to a deductive structure in which a statement of
the facts of the case can be subsumed under its universal formulation. In order to
illustrate this basic operation, Alexy has proposed the following scheme:












*
The author would like to thank Carlos Bernal Pulido and Lara Pratt for the very helpful comments on
this chapter.
1
Robert Alexy, A Theory of Constitutional Rigths, trans. Julian Rivers (Oxford University Press:
Oxford, 2002), 48.
(1) (x) (Tx ORx)
(2) (x) (M
1
x Tx)
(3) (x) (M
2
x M
1
x)
.
.
.
(n+2) (Sx M
n
x)
(n+3) Sa
(n+4) ORa

Electronic copy available at: http://ssrn.com/abstract=2017469 Electronic copy available at: http://ssrn.com/abstract=2017469

This scheme was referred to by Alexy as the Subsumption Formula. It is meant to
exhibit all the premises comprised in subsumption: (1) is a norm which attaches a
consequence R to all class of individuals who share the predicate T; (2) (n+2) are
semantic rules connecting the concept used to give expression to the antecedent
condition of the norm (T) with the concept used to describe the case (S); (n+3) is
the description of the case; and (n+4) is the legal judgment expressing the solution
to the legal problem.
2

For Alexy, the subsumption formula has three basic features: it is formal,
necessary, and specific.
3
To say that it is necessary means that it must be employed
in all cases in which legal rules are to be applied, and its specific character stems
from that fact that it works according to the rules of logic, which are a specific kind of
rule.
4
Its formal character, in turn, means that it says nothing about how the rule
should be interpreted or how the facts should be constructed, which implies that the
scheme stands in need of saturation by means of substantive arguments.
5

When it comes to an argumentation based on legal principles, however, the
subsumption formula is not enough to express all the steps which need to be taken in
the application of law. In Alexys theory of fundamental legal rights, principles are
defined as optimization requirements which can be satisfied to varying degrees.
6
As
such, they require that something be realized in the greatest extent possible given the
legal and factual possibilities.
7
Since the legal possibilities can only be determined
with regards to opposing principles, whose scopes need to be contrasted, this type of
norm stands in need of balancing. For Alexy, there are at least three variables which
need to be considered in the basic operation of balancing: (i) the degrees of
interference in one principle and of satisfaction of the other; (ii) the abstract weight of
each of the principles in opposition; and (iii) the reliability of the empirical premises
relied upon to establish the degrees of interference in P
i
and of satisfaction of P
j
.
8

To express the relationship between these variables, Alexy proposes the
Weight Formula, which works as a basic scheme for the operation of balancing and
runs as follows:





Although it might be preferable to avoid a long quotation, the easiest way to explain
this formula is to transcribe Alexys own words on it, which are very clear and
concise:

This formula represents the core of a complex argument-structure. In standard cases,
where only two principles are involved, balancing begins with the subsumption of the
case under two competing principles (P
i
, P
j
), and continues with an assignment of values,
first, to the intensity of interferences (I
i
, I
j
) with P
i
and P
j
, second, to the abstract weights

2
Robert Alexy, On Balancing and Subsumption. A Structural Comparison (2003) 16 Ratio Juris,
433-49, at 434.
3
Robert Alexy, Two or Three?, in: On the Nature of Legal Principles, ed. Martin Borowski, ARSP-
Beiheft 119 (Franz Steiner: Stuttgart, 2010), 9-18, at 10.
4
Ibid., 10.
5
Ibid., 10.
6
Alexy, A Theory of Constitutional Rights (n. 1), 47-8.
7
Ibid., 47.
8
Alexy, On Balancing and Subsumption (n. 2), 436-440 and 443-8.
W
i,j
= I
i
W
i
R
i
I
j
W
j
R
j

(W
i
, W
j
) of both principles, and, third, to the degree of reliability of the empirical
assumption (R
i
, R
j
) respecting what the measure in question means for the non-realization
of P
i
and the realization of P
j
. Once numbers are assigned to these variables, calculation
of the concrete weight (W
i, j
) is no more difficult than deduction, once the class of
premises is complete.
9


Once the concrete weight (W
i,j
) is determined, the argument goes, one can
demonstrate that under the circumstances C one of the principles (P
i
) takes
precedence over the other (P
j
). At this point one has reached a new rule which has as
its protasis C and as its apodosis the legal consequence (Q) of the prevailing principle
(P
i
).
10

We can see, thus, that the basic operation of balancing is a process by means
of which one creates an individual (Kelsen
11
) or derivative (Alexy
12
) rule upon which
the case C can be subsumed. The basic operation of subsumption appears both at the
beginning and at the end of the process of balancing. That does not mean, however,
that balancing cannot be classified as a basic operation according to Alexys three
criteria to identify it, since, first, it is specific, for it works according to a specific kind
of rules (the rules of arithmetic), second, it is necessary, since it must be employed in
all cases in which legal principles are to be applied, and, third, it is formal, since it
can be connected to all other sorts of arguments with a view to determine the values to
be ascribed to each of the variables of the Weight Formula.
13



C. The Third Basic Operation: Analogy or Comparison of Cases

The idea of a third basic operation first appears in an article in which Alexy analyses
Arthur Kaufmanns theory of law-making, where he suggests the following schemes
to represent the comparison of cases:

A
1
: In every case c
i
, each case c
j
may be adduced with the argument that c
i
shares with c
j

the features F
j
1
, , F
j
n
, and that c
i
, for that reason and because the rule F
j
1
, , F
j
n
Q
is valid, ought to be treated, as c
j
, to the effect that Q.

A
2
: In every case in which an argument for the form A
1
is put forward, it may be claimed
that c
i
is distinguished by the features F
i
1
, , F
i
n
from c
j
, and that c
i
, for that reason and
because the rule F
i
1
, , F
i
n
Q is valid, ought not, in contradistinction to c
j
, to be
treated to the effect that Q.
14


This formula has been heavily criticized by Bcker
15
and Broek,
16
who argued,
amongst other things, that Alexys comparison schemes presuppose the existence of a

9
Alexy, Two or Three? (n. 3), 11.
10
Ibid., 11.
11
Hans Kelsen, Pure Theory of Law, trans. Max Knight (University of California Press: Berkeley,
1967), 269.
12
Alexy, A Theory of Constitutional Rigths (n. 1), 33, 54.
13
Alexy, Two or Three? (n. 3), 10-1.
14
Robert Alexy, Arthur Kaufmanns Theorie der Rechtsgewinnung, in: Verantwortetes Recht, ed.
Ulfrid Neumann, Wingrid Hassemer, and Ulrich Schroth (Franz Steiner: Stuttgart, 2005), 47-66, at 65-
66; Alexy, Two or Three? (n. 3), 9.
15
Carsten Bcker, Begrnden und Entscheiden (Nomos: Baden-Baden, 2008), 298, cf. Alexy, Two or
Three? (n.3), 9.
16
Bartosz Broek, Analogy in Legal Discourse (2008) 94 Archiv fr Rechts-und Sozialphilosophie,
188-201, at 198-200.

rule, either F
j
1
, , F
j
n
Q or F
i
1
, , F
i
n
Q, which applies directly and
explicitly to both cases, in such a way that there is no need for analogical reasoning
here, as we are not in a situation in which there is a case for which there exists no
relevant legal rule.
17
Rather than create a new rule by analogical reasoning, the
scheme would merely subsume cases c
i
and c
j
under another rule.
This objection was strong enough to lead Alexy to reformulate his Analogy
Scheme, replacing the clause because the rule F
j
1
, , F
j
n
Q is valid in A
1
and
because the rule F
i
1
, , F
i
n
Q is valid in A
2
by because there are reasons for
the rule F
j
1
, , F
j
n
Q and because there are reasons for the rule F
i
1
, , F
i
n

Q. Thus, the revised Analogy Scheme now reads as follows:

A
1
: In every case c
i
, each case c
j
may be adduced with the argument that c
i
shares with c
j

the features F
j
1
, , F
j
n
, and that c
i
, for that reason and because there are reasons for the
rule F
j
1
, , F
j
n
Q, ought to be treated, as c
j
, to the effect that Q.

A
2
: In each case in which an argument of the form A
1
is put forward, two counter-claims
may be raised:

A
2.1
: It may be claimed that c
i
is dintinguished by the features F
i
1
, , F
i
n
from c
j
, and that
c
i
, for that reason and because there are reasons for the rule F
i
1
, , F
i
n
Q, ought to
be treated, in contradistinction to c
j
, to the effect that Q.

A
2.2
: It may be claimed that c
i
shares with c
k
the features F
k
1
, , F
k
n
, and that c
i
, for that
reason and because there are reasons for the rule F
k
1
, , F
k
n
Q, ought to be treated,
as c
k
, to the effect that Q.
18


In Alexys view, the Analogy Scheme, like the Subsumption Formula and the Weight
Formula, has the three distinctive features which are necessary to qualify it as a valid
scheme for a basic operation in the application of law: it is formal, necessary, and
specific.
19
Its formal character lies in the fact that the formula says nothing about
which features are to be classified as relevant, and equally nothing on the question
of whether the argument according to A
1
or the argument according to A
2
prevails.
20

The necessity of the Analogy Scheme, in turn, stems from the fact that it is not
possible to refer in a rational way to other cases without using the scheme.
21
And
finally, its specific character stems from the dialectic of reference to features of other
cases.
22
According to Alexy, this is sufficient to qualify analogy or comparison as an
autonomous basic operation in the application of law.


D. A Critical Assessment of Alexys Account on Legal Analogy

The first thing to be noticed in Alexys Analogy Scheme is that it is, in fact, a
formally correct structure to explain the way jurists raise claims and put forward
arguments on the basis of analogical reasoning. If one is to criticise Alexys views on
analogy, this shall not be done on the basis of the formal aspects of the Analogy
Scheme or of the lack of accuracy in its description of precedent-based legal

17
Ibid., 199.
18
Alexy, Two or Three? (n. 3), 17.
19
Ibid., 17-8.
20
Ibid., 17.
21
Ibid., 18.
22
Ibid., 18.

reasoning, but rather on the basis of the unsoundness of the claim that such scheme is
actually necessary and of the inability of the scheme to contribute to the
justification of legal decisions. Furthermore, one can successfully argue that Alexys
conception of basic operations is ambiguous and needs to be redefined in a way that
excludes analogy between cases from the scope of the notion of a basic operation in
the application of law. In the following sub-sections, I attempt to explain these
objections.

1. Objections to the Necessity and Relevance of the Analogy Scheme

One of the great contributions Alexy has made to contemporary jurisprudence was to
clarify the relations between rules and principles in legislation and adjudication in a
way that was not entirely evident in, for instance, Dworkins earlier writings about
legal principles. With his so-called Law of Competing Principles (LCP), Alexy
demonstrated that principles are the fundamental reasons which justify legal rules and
operate as standards on the basis of which every rule of the system should be
interpreted. In addition, he was able to unveil that a rule is constructed as a result of a
balancing of principles. In fact, the LCP shows that from every balancing of
principles one necessarily reaches a derivative norm which has the character of a rule,
as it is visible in its canonical formulation:

(LCP): If principle P
1
takes precedence over principle P
2
in circumstances C: (P
1
P P
2
)
C, and if P
1
gives rise to legal consequences Q in circumstances C, then a valid rule
applies which has C as its protasis and Q as its apodosis: C Q.
23


This meta-rule demonstrates that balancing principles always gives rise to a rule
which has as its apodosis the same consequences of the principle that takes
precedence in the light of the concrete case. Hence, for every rule one can think of,
there is a principle as its leading justifying reason. Each legal rule may be presented
as a result of a weighing and balancing of principles, performed by the lawgiver.
24

When it comes to a legal analogy there is no other way to justify it other than
through a balancing of the principles which were considered in the precedent case. In
the case of precedent-based reasoning, the rationes decidendi should not be regarded
as rules which may be detached from the principles which figure in their
justifications, as it happens in a system of binding precedents inspired by legal
positivism,
25
but as rulings on law stated as necessary parts of justifications of
decisions relatively to cases and the arguments put by given parties.
26
Once this
connection between rules, reasons, and the principles which underlie them is
recovered, it becomes clear that no rule can be analogically extended without a
balancing of principles. As Alexy recognized while he was speaking of his Analogy

23
Alexy, A Theory of Constitutional Rigths (n. 1), 54.
24
Aleksander Peczenik. Jumps and Logic in the Law: What can one expect from Logical Models of
Legal Argumentation?(1996) 4 Artificial Intelligence and Law 297-329, at 298.
25
This is, in fact, the traditional way that precedents figure in the discourse of British jurisprudence, as
one can see in the works of Goodhart, who holds that the reason which the judge gives for his decision
is never the binding part of the precedent (Arthur L. Goodhart, Determining the Ratio Decidendi of a
Case in: Essays in Jurisprudence and the Common Law (Cambridge University Press: Cambridge,
1931), 2), or Cross, who thinks that precedents may be authoritative even in cases in which no reasons
are given for the decision (Rupert Cross; J. W. Harris. Precedent in English Law. 4
th
ed. Clarendon:
Oxford, 1991), p. 47).
26
Neil MacCormick, Why Cases Have Rationes and What These Are, in: Precedent in Law, ed.
Laurence Goldstein (Clarendon: Oxford, 1987), 155-181, at 171.

Scheme, the features in A
1
and A
2
acquire their relevance by virtue of the fact that
they are related to reasons undergirding the rules that contain them as antecedents,
and these reasons normally have the character of principles.
27

All this seems to me to be very straightforward and correct, and this is, in fact,
one of the merits of Alexys theory of norms. Yet this explanation of the relationship
between rules and principles loses much of its practical significance if the new formal
scheme for the basic operation of analogy is adopted. In fact, the so-called Analogy
Scheme seems to fall back into the traditional way to explain analogies, which
focused entirely on the similarities between cases or features and was unaware of
the fact that best way to justify analogies is by means of an argument based on the
principles which underlie the precedent rule and the new rule to be ascribed to the
instant case.
28
Whenever an old rule is to be extended to cover situations which were
not originally subsumed into its operative conditions, this interpretive process has to
be done on the basis of the principles which justify it, for, as MacCormick correctly
points out, the relevance of analogy depends on the broader principle of which each
of the cases can be shown to be an instantiation.
29

As I had a chance to express in a short essay published in the same volume as
Alexys new paper, the notion of similarities between facts is not enough to face the
challenges that appear in analogical reasoning, since the value judgments required to
establish the similarities that allow an inference in the Analogy Scheme remain
obscure and cannot be objectively controlled.
30
As I wrote in my previous essay,

Instead of comparing the facts of the precedent with the facts of the current case it is
better to compare the rules that are presupposed in the reasoning that leads to the decision
of each of the two situations. We should look not to the similarity of facts, but to the
similarity of rules. In fact, when arguing by analogy one requires a base line or point
from which we can start and by reference to which we can compare and contrast any
particular problem case or situation [Cfr. Bankowski]. This baseline for the analogy
between cases is much more visible when we compare rules than when we compare brute
facts: rules are immediately linked to legal principles, while facts are not. Principles can
bridge the gap between rules, and nothing seems to be able to do the same job with mere
facts [or, as I now add, with any feature of the facts of the case].
31


Hence, if I am right in this, when Alexy formulates his Analogy Scheme
without incorporating the steps needed to balance the principles to be compared, he is
hiding away one of his most relevant contributions to the theory of norms, which is
the explanation of the precise relationship between principles and rules. By missing
the interactions between these norms, the Analogy Scheme fails to explain how one is
to choose between the alternative solutions that may be available to a legal problem.
To be sure, that scheme would be much more useful to a sceptic who denies the

27
Alexy, Two or Three? (n. 3), 14.
28
Indeed, the Analogy Scheme holds that analogies are properly justified because there are reasons
for a rule, more specifically, a general rule that covers both c
i
and c
j
(Ibid., 17), but it neither makes
clear what kind of reasons these are nor expounds how they are to be weighed. This reference to
reasons is so vague that it does nothing more than stating that the process of comparison should be
rational, which is in fact true, but trivial. Since these reasons are unspecified, it can be said that
analogical reasoning in the Analogy Scheme is entirely driven by the comparison between the features
of the cases.
29
Neil MacCormick, Rhetoric and the Rule of Law (Oxford University Press, Oxford, 2005), 207.
30
Thomas Bustamante, Principles, Precedents and their Interplay in Legal Argumentation: How to
Justify Analogies Between Cases, in: On the Nature of Legal Principles, ed. Martin Borowski, ARSP-
Beiheft 119 (Franz Steiner: Stuttgart, 2010), 63-77, at 71.
31
Ibid., 71.

existence of legal principles than to a jurist who decides to apply Alexys own theory
of norms to decide a case by means of an analogical construction. For the sceptic the
scheme would suffice, although she might struggle to justify the sameness of the
cases or the relevance of the features of the situations that must be compared; but for
the follower of Alexy the scheme would lead us only half-way to the conclusion,
since she would not be able to avoid balancing principles in order to arrive at the rule
that has to be issued for the case.
It makes more sense, thus, and it is also more coherent with Alexys previous
theoretical commitments (which were never dismissed in the papers in which he
advocates a third basic operation), to endorse Broeks Partial Reducibility Thesis,
according to which one shall weigh the principles standing behind the rules that
govern both similar cases
32
with a view to justify a conclusion by legal analogy.
It should be clear, however, that to endorse the Reducibility Thesis a follower
of Alexys theory of norms does not need to accept all the criticisms that Broek
directs towards his theory, including that which invites us to abandon the LCP on the
assumption that it is unnecessary if a system of defeasible logic is adopted.
33
As I
wrote in a previous attempt to analyse the structure of analogical argumentation, it is
precisely the Law of Balancing that makes the Partial Reducibility Thesis plausible,
for it is the fact that the collision of principles leads to the formulation of a rule that
makes it possible to determine, with a certain degree of objectivity, the principles that
stand behind the rules which need to be compared in order to validate the argument by
analogy.
34

This reasoning provides, therefore, a good reason for us to claim that the
Analogy Scheme, at least in the current formulation, is not actually relevant for a
jurist who is up to the task of justifying analogies, for it works under the assumption
that legal analogy is only a judgment about the relevant features of different cases,
rather than a judgment about the relevant principles contributing to the rules assumed
for the solution of these cases.
Furthermore, I do not think that Alexy is right when he argues that the
Analogy Scheme is necessary in the sense that it is not possible to refer in a
rational way to other cases without using the scheme.
35
If he were claiming that it is
not possible to refer to other cases without using a formal scheme, rather than the
scheme that he advocates, it would be quite easy to agree with him. None the less, this
is obviously not the case, and this weak claim (the latter) would not be enough to
vindicate the view that the Analogy Scheme should be adopted. Hence, in order to
show that Alexys argument is implausible one needs merely to demonstrate that it is
possible to imagine any alternative scheme to compare the features of the cases that
need to be contrasted in analogical reasoning.
In the remaining part of this section, I attempt to provide an alternative scheme
which is, nevertheless, entirely based on Alexys ideas on the inter-relations between
rules, principles and cases, but which takes into consideration Laura Clricos
developments of the LCP into the direction of a model of balancing oriented toward

32
Broek, Analogy in Legal Discourse (note 15), 195.
33
Bartosz Broek, Rationality and Discourse Towards a Normative Model of Applying Law
(Oficyna: Warsaw, 2007), 150.
34
Bustamante, Principles, Precedents and their Interplay in Legal Argumentation (note 26), p. 37.
35
Alexy, Two or Three (note 3), 18.

rules
36
which takes very seriously the universalization of the results of a balancing
operation
37
and the balancing exercise required to move from one rule to the other.
In fact, while Alexys Analogy Scheme expounds only the structure of the
judgment about the consequences of the relevant features of the cases, it is equally
feasible to adopt an alternative scheme which describes the structure of the balancing
exercise that is needed to vindicate the universal norms that stem from the solution of
the case. In effect, the move from Norm
i
, which stems from C
i
, to Norm
j
, which stems
from C
j
, can be described according to the following argument form:

(1) N
i
: (x) (C
i
x ORx)
(2) (P
1
P P
2
) C
i

(3) (P
1
P P
2
) C
j

(4) N
j
: (x) (C
j
x ORx).
38


This formal scheme may be expanded so the norms N
i
and N
j
include more
predicates in their operative conditions, in which case it would read as:


(1) N
i
: (x) ([C
1
i
C
2
i
C
n
i
]x ORx)
(2) (P
1
P P
2
) C
1
i
C
2
i
C
n
i

(3) (P
1
P P
2
) C
1
j
C
2
j
C
n
j

(4) N
j
: (x) ([C
1
j
C
2
j
C
n
j
]x ORx).
39


This demonstrates that it is not very difficult to develop an alternative scheme
for comparison of cases. Furthermore, we can see that this argument form is more
interesting than Alexy's Analogy Scheme because it shows the structure not only of
the rules and the features of the cases, but also of the priority relations between the
principles that are used to justify these rules.
Moreover, there is yet another advantage in this scheme, since it illustrates
more explicitly that in analogical legal reasoning we are comparing rules, not merely
unspecified features of the cases. Here we can see the that Clrico is right when she
states that a rule resulting from balancing (regla-resultado de la ponderacin) is
[considered as] universalizable if it is applicable to the solution of a new case, and if
the operative conditions of the rule resulting from balancing and the circumstances
of the (new) particular case can be justified as equal or similar.
40
This connects in a

36
Laura Clrico, El examen de proporcionalidad en el Derecho Constitucional (Eudeba: Buenos Aires,
2009), 180.
37
Ibid., p. 180.
38
If one concludes that the claim to generalization (Clerico, La estructura [n. 36], 184) which is
raised to justify an analogical extension of N
i
cannot be vindicated, then a negative version of the
scheme applies, which runs as follows:
(1) N
i
: (x) (C
i
x ORx)
(2) (P
1
P P
2
) C
i

(3) (P
2
P P
1
) C
j

(4) N
j
: (x) (C
j
x ORx).
39
As it happens in the simpler version of the scheme, one may need a negative version, which can be
formulized thus:
(1) N
i
: (x) ([C
1
i
C
2
i
C
n
i
]x ORx)
(2) (P
1
P P
2
) C
1
i
C
2
i
C
n
i

(3) (P
2
P P
1
) C
1
j
C
2
j
C
n
j

(4) N
j
: (x) ([C
1
j
C
2
j
C
n
j
]x ORx).
40
Ibid., p. 182.

reasonable way the feature of the cases to the justificatory and universalistic
dimensions of legal argumentation, which are characteristic of the rules.
One may be wondering why it is important to stress that any scheme to
represent analogies shall be based on the comparison of rules, rather than features of
cases. Why does it make a difference, it may be asked, to come up with an Analogy
Scheme which compares cases on the basis of their relevant features or on the basis
of the universal rules that follow from the decisions?
This question may be answered in different ways depending on how one
applies the operation of balancing. If the point of our inquiry is merely descriptive,
then it does not make any difference at all to focus on features of the cases or on the
rules that stem from precedent decisions. From the analytical point of view, it is
irrelevant if we concentrate our analysis on the rules (i.e. on the major premise of the
legal syllogism) or on cases (i.e. on the minor premise of the legal syllogism). For a
rule to be instantiated in a case it must necessarily be true that there is semantic
equivalence between the predicates which figure in the operative conditions of the
norm and in the description of circumstances of the case. As Wrblewski explains, the
uses of precedent oriented towards facts and precedent oriented towards rules are
interconnected, since rules always rule upon facts, and facts in legal discourse cannot
be understood apart from rules.
41
So it can be said, for instance, that distinguishing,
overruling and fact-adjusting are functionally equivalent, since they serve as
alternative means to the same end, the result desired by the judge.
42
The only
differences between these alternative approaches to the ratio decidendi of a precedent
are the type of justification that the judge provides for her decision and the influence
of this decision in future cases.
None the less, if the point of the inquiry is normative for instance, when one
is using the structure for the purpose of providing a justification, rather than a
description, of a case then it is more advisable to concentrate the comparison on
rules than on the features of the case. Apart from the argument that one can see better
the connection between cases and the principles which justify the decision, stated
above,
43
the model that describes precedents as rules should be adopted in order to
avoid misunderstanding the universalist character of legal argumentation. While a
comparison of rules is clearly directed towards the universalizability of the solution of
c
j
, which is of key importance for the rational justification of a legal decision, a
comparison of cases or features appears to provide a context that is very attractive
for particularism, which does not take the principle of universalizability seriously
enough. Although it is not necessarily the case that the user of a conception of
analogy centred on the similarities of features would embark on a particularistic
approach to legal reasoning, she would find a context that is favourable to such an
approach, since the Analogy Scheme would emphasize the comparison of the features
of the cases and would say nothing about the character of the reasons that will be used
to justify the decision. This is, indeed, another reason to stick with a rule-
comparison description of legal analogy. In this sense, it should be reminded that to
justify a decision means to construct it in a rule-based way, as MacCormick argues
when he states: To justify requires one to put ones claim, defence, or decisions on

41
Jerzy Wrblewski, Il Precedente nel Sistemi di Civil Law, trans. Riccardo Guastini, in: La
Giurisprudenza per Massime e il Valore del Precedente, ed. G. Visintini (CEDAM: Padova, 1988),
25ff, at 29-30.
42
Svein Eng, The Doctrine of Precedent in English and Norwegian Law: Some Common and Specific
Features (2000) 39 Scandinavian Studies in Law, 275-324, at 316.
43
See supra, text above note 30.

the footing that because the facts F1, F2, Fn, the judgment j ought to be
pronounced, and that because-clause requires a commitment to universal.
44
If one
describes analogies without using the language of rules, one is exposed to the risk of
losing track of the fact that justificatory discourses always claim universality, as
Alexy has convinced us in his Theory of Legal Argumentation, where it is stated that
any legal judgment must follow logically from at least one universal norm together
with further statements.
45


2. A note on the concept of a basic operation in the application of law

The argument developed in the previous section provides an objection to the formal
scheme that Alexy has recently offered to describe the structure of analogy or
comparison in legal argumentation. However, even if the objection is sound Alexy
may still be right in the assertion that analogy figures as a third basic operation in the
application of law. To decide whether this is the case, one no longer needs to consider
the formal properties of the argument by analogy, but rather to concentrate on the
meaning of the notion of a basic operation in the application of law.
To begin, we should notice that Alexy does not define in precise terms what
he means by a basic operation in the application of law, although he tells us that it
must be formal, specific and necessary. There is a great deal of ambiguity with
regards to the contents of the notion of a basic operation and with regards to its
object.
From the point of view of modern hermeneutics, the notions of understanding,
interpreting and applying an object, in our case a norm, are seen as an integral part of
the hermeneutical process.
46
Nevertheless, from the analytical point of view we can
distinguish the psychological process of judicial decision-making and the
justification of a legal decision,
47
which can be studied separately for the purposes
of the construction of legal knowledge and evaluation of legal arguments. Hence,
although at the hermeneutical level it may be true that the activities of interpretation

44
MacCormick, Why Cases have Rationes and What these are (n. 26), 162.
45
Robert Alexy, A Theory of Legal Argumentation: The Theory of Rational Discourse a Theory of
Legal Justification, trans. Ruth Adler and Neil MacCormick (Oxford University Press: Oxford, 1989),
rule n. J.2.2., at 223. The risk of particularism has always been considered a problem by Alexy, who
warns us, for instance, against the risk of misunderstandings that may arise if Habermas distinction
between application discourses and justification discourses is accepted. The idea of an application
discourse is easy to misunderstand because it houses the danger of a nonuniversalist practice of
decision making (Robert Alexy, Jrgen Habermass Theory of Legal Discourse (1996) 17 Cardozo
Law Review, 1027-1034, at 1032-3). As Alexy persuasively argues, a harmonization as unification of
the law in the sense of a universalist practice of decision making is only possible if, in deciding
individual cases, rules are formed which can win the power of precedence (ibid, 1033). This is, hence,
a good argument that can be deployed to substitute a model based on the features of the cases by a
model oriented toward the justification of universal rules, since the latter is better equipped to defend
the most important claims of Alexys general theory of legal discourse. I must stress, however, that I
am not accusing Alexy of advocating particularism. In fact, I am well aware that his Analogy Scheme
even says that c
i
and c
j
ought to be seen as similar because there are reasons for a rule which
prescribes that the features that they share lead to a common consequence. Yet, I argue that the
Analogy Scheme still contains an invitation to focus on the features of the situation, which seem to
drive the reasoning process, and thats why it may lead to misunderstandings (see, also, supra, note
27).
46
Hans-Georg Gadamer, Truth and Method, trans. Joel Weinsheimer and Donalg G. Marshall, 2
nd
ed.
(Continuum: London, 2004), 307.
47
Jerzy Wrblewski, Legal Syllogism and Rationality of Judicial Decision (1974) 3 Rechtstheorie 1,
33-46, at 35 ff.

and application of law are inseparable, these steps should be neatly differenced for the
purpose of the analysis of the justification of legal judgments.
With regards to the discourses of justification of legal decisions, the notion of
application of law in a broad sense can be divided into four groups of fractional
decisions that need to be justified as separate steps in legal argumentation. These
fractional decisions are: (i) decisions of validity, in which one identifies the valid legal
norms that are relevant for the decision at stake; (ii) decisions of interpretation, which
concern meaning of the norms applicable to the case; (iii) decisions of evidence,
which concern the material facts considered to be proved; and (iv) decisions of choice
of the consequences, which concern the establishment of the legal consequences
appropriate to the proven facts.
48

The last group of decisions (decisions of choice of the consequences) can also
be defined as application of law in a narrow sense, which refers to the application of
a particular norm. In its sense, to say that a norm is applied means that in decisions
in which its conditioning facts are assumed to exist, it forms an integral part of the
reasoning underlying the judgment and has been therefore one of the decisive factors
determining the conclusion at which the court has arrived.
49

There are thus two alternatives open for us: either we accept that Alexys basic
operations in the application of law take place in the fourth group of fractional
decisions (or the so-called application of law in the narrow sense), which takes
place when all the difficulties concerning validity, interpretational and evidence
decisions are solved;
50
or we have to claim that when we speak of basic operations in
the application of law, this expression must be understood in its wider sense, which
comprises all the four groups of fractional decisions stated above.
Broek, for instance, accepts the first alternative and holds that the notion of
application of law is used by Alexy as consisting on a decision [on] which of the
valid and interpreted legal norms to apply in the given case.
51

This alternative seems to be attractive when we speak of the basic operations
of subsumption and balancing. To subsume a fact under the description of a rule one
must have already asserted the validity and the final interpretation of the norm in
analysis, as well as decided that this norm has the structure of a rule. By the same
token, to balance rights or principles one must have decided, first, that the norms
applicable to the case are valid, second, that they have the structure of principles, and
third, that the facts of the case fall within the scope of application these norms. As we
can see, the operations of balancing and subsumption can easily be comprised as
formal operations which are necessary to determine the consequences of (previously
interpreted and indisputably valid) norms and (previously constructed) facts in a given
case.
Nevertheless, the same cannot be said about legal analogy. In fact, analogy or
comparison is not about the application of a legal norm in strict sense or a decision at
the final stage of the process of application of law, but rather about the creation of a
new rule which cannot be considered a mere act of determining the consequences of
the rule which served as a point of departure for the argumentation. If we think of
analogy as a form of argument by means of which one applies the consequences of a
norm to cases that cannot be subsumed in its operative conditions, what seems to be a

48
Jerzy Wrblewski, The Judicial Application of Law, trans. Zenon Bankowski (Kluwer: Dordrecht,
1992), 11.
49
Alf Ross, On Law and Justice (The Lawbook Exgange: Clark, NJ, 2004), 42.
50
Broek, Analogy in Legal Discourse (n. 16), 38.
51
Ibid., 38.

necessary implication of the reference to analogous or similar cases, then it is
analytically true that there is no legal analogy when the conditioning facts of that
norms are assumed to exist.
52
We can talk of analogy only when, after there is no
more disagreement about the contents of the rule R (properly interpreted), we cannot
resolve the case by simply subsuming it under R. We can see, therefore, that the very
concept of application of law in the narrow sense by definition excludes the
possibility to include analogy within its range of basic operations.
Hence, we are only left with the second alternative: the locution application
of law is understood in its wider sense, which includes the four classes of fractional
decisions described by Wrblewski. Here, the creation of a new rule by comparison or
analogy is viewed as a decision about the validity of a new rule, which is developed
on the basis of the principles underlying the rule that served as a paradigm for the
analogical reasoning. None the less, although this alternative is not impossible, it is in
my opinion unattractive because it brings nothing but confusion into the theory of
law. If we understand the locution application of law in its wider sense, then not
only analogy, but all other argument forms that can be employed to reconstruct the
fractional decisions of a judge would equally be classified as a basic operation in the
application of law. In effect, one can think of many operations in legal reasoning that
are formal, necessary and specific, and all of them can equally be classified as
operations of application of law in the broad sense. To name some of them, these
would include decisions on the proof of facts and on the normative qualification of
these facts (which are both decisions of evidence); on the formal and material validity,
derogation, constitutionality, analogical extension, reduction etc. (which are decisions
of validity); and decisions on which canon of interpretation is to be applied and on
which of these canons must prevail in case of conflicts or oppositions (which are
decisions of interpretation).
In fact, these decisions can all be classified as formal, necessary and
specific, and can equally be formalized by an analytical scheme (or argument form)
that can be used in legal justification. None the less, nothing is gained if we call all
these fractional decisions basic operations in the application of law, for this very
notion would be banalised and would make reference to decisions which have nothing
to do with the application of norms as we normally understand it in legal discourse
(where the expression is usually used in the narrow sense).
To escape these unattractive consequences, the best alternative seems to be to
claim that, at the end of the day, analogy is not a basic operation in the application of
law, but rather one of the forms of legal reasoning by means of which one establishes
a new norm that was not previously settled in the legal system. To put it very simply,
it is a form of judicial construction or development of the law that is, at the end, based
on a balancing or principles.


E. Final Considerations

We can conclude, thus, that Alexys theory of norms is still a very powerful device
for the justification of analogies in legal reasoning. The LCP makes it very clear that
there is a connection between subsumption, balancing and analogy or comparison of
cases. This connection shall not be missed by those who intend to justify in a
satisfactory way the making of a novel decision by analogy with precedents or

52
Ross, On Law and Justice (n. 48), 42.

statutory rules. None the less, it is perfectly possible, and even preferable, to do so
without qualifying analogy as a basic operation in the application of law. The very
idea of a basic operation in the application of law was useful, in my opinion, because
it made clear the structural differences between rules and principles, and the modes of
application of these norms, but nothing is gained if we extend this notion to a form of
reasoning which is not a case of application of law in a narrow sense. Application
of law, therefore, shall be interpreted for a user of Alexys theory of norms as
equivalent to application of norms, for this is the only way to avoid confusion and
obscurity, and to interpret his theory at its best light.