Introduction
In this post, I analyze the forms of comparative arguments in judicial decisions from Robert Alexy’s perspective (1989, p. 239-240). Such forms adopt as a reference the state of affairs in one society to argue that an interpretation of a norm should or should not be accepted in another society.
Forms of comparative arguments
Consider that an interpretation of a legal rule is a solution to a legal problem of a society A, and that a similar solution when applied to a legal problem of society B produced a positive or negative effect.
Forms of comparative argument use knowledge of facts to argue that an interpretation applicable to one society should or should not be accepted according to the evaluation of the effect of that solution on another society as positive or negative.
One of the forms of comparative arguments has four premises and one conclusion:
1) The problem discussed in society A has already been solved in society B;
2) This solution led to consequence C;
3) C is undesirable;
4) C can occur in society A because its situation and the situation of society B are similar;
5) Thus, the solution is not acceptable to society A.
Conclusion
Forms of comparative arguments employ empirical knowledge about the positive or negative effect of a legal interpretation on one society to justify whether a similar legal interpretation should or should not be accepted in another society.
Bibliographic references
ALEXY, Robert. A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification. Translated by Ruth Adler and Neil MacCormick. 1st ed. New York: Oxford University Press, 1989.