52 Mark Washofsky
24.“The basic pattern of legal reasoning is reasoning by example”; Edward H. Levi , An Introduction to Legal Reasoning(Chicago : University of Chicago Press , 1949), p. 1.“[L]egal argument is often associated with its own distinct method, usually referred to as‘reasoning(or argument) by analogy’; Scott Brewer, “Exemplary Reasoning: Semantics, Pragmatics , and the Rational Force of Legal Argument by Analogy,” Harvard Law Review 109(1996) pp. 923-1028(quotation at p. 926).“So what is it that lawyers and judges know that philosophers and economists do not? The answer is simple: the Law. They are the masters of‘the artificial Reason of the law.” There really is a distinct and special subject matter for our profession. And there is a distinct method.... It is the method of analogy and precedent”; Charles Fried ,“The Artificial Reason of the Law; or, What Lawyers Know,” Texas Law Review 60(1981), pp. 35-58(quotation at p. 57). Richard Posner calls reasoning by analogy“the heart of legal reasoning as conceived by most modern lawyers,” even as he criticizes it as having“no definite content or integrity”; The Problems of Jurisprudence(Cambridge : Harvard University Press , 1990), p. 86.
25. See Steven J. Burton, An Introduction to Law and Legal Reasoning(Boston : Little, Brown and Company , 1985), 59-82, describing“the two forms of legal reasoning,” deductive and analogical, that lawyers combine in their work. See also James R. Murray ,“The Role of Analogy in Legal Reasoning,” UCLA Law Review 29(1982), pp. 833-871(“Analogy is a vital tool in legal reasoning”; p. 833).
26. See Burton(note 25, above), p. 26. 27. Burton(note 25, above), p. 27.
28. Posner (note 24, above), pp. 99-100, argues that“legal reasoning” is not a method but a language,“a culture, a vocabulary, a set of representative texts and problems.” I make a similar point with respect to halakhic reasoning in general in “Against Method”(note 14, above) and“On the Absence of Method in Jewish Bioethics: Rabbi Yehezkel Landau on Autopsy,” in Alyssa Gray and Bernard Jackson , eds., Jewish Law Association Studies XVII(2007), 254-278.
30. Ibid., at 464-465.