W oodchopper Revisited 53
32. Olmstead(note 29, above), at 473.
33. Cass Sunstein , Legal Reasoning and Political Conflict(Oxford : Oxford University Press , 1996), p. 8. Sunstein sees analogical reasoning as a key element in a democratic society’s ability to arrive at what he calls“incompletely theorized agreements”: that is,“when people diverge on some(relatively) high-level proposition, they might be able to agree when they lower the level of abstraction” (p.37). Analogy is thus an example of“bottom-up” thinking, which proceeds from agreed-upon particulars and reaches agreement at a comparatively modest level of abstraction, as opposed to“top-down” thinking that starts from controversial general propositions and therefore has difficulty yielding agreement on particulars (p. 68). For a good example of how such low-level agreement is obtained in a situation of profound disagreement over basic moral principles, see Jonsen and Toulmin (note 34, below), pp. 18-19.
34. Albert R. Jonsen and Stephen Toulmin , The Abuse of Casuistry: A History of Moral Reasoning(Berkeley : University of California Press , 1988). The authors defend casuistry against the bad reputation that has attached to it since(in their reckoning) the days of Pascal’s strictures against the Jesuits . What Pascal should have attacked, they write, is not casuistry per se but the wrongful use or abuse of the method; hence, the title of the book(see p. 11ff.). A similar note is struck by Richard B. Miller , Casuistry and Modern Ethics: A Poetics of Practical Reasoning (Chicago : University of Chicago Press , 1996).
36. See Lloyd L. Weinreb , Legal Reason: The Use of Analogy in Legal Argument (Cambridge: Cambridge U. Press , 2005), p. 66:“[O]n its own the principle is too broad to express the court’s holding and requires reference to the analogy to ascertain its true scope. The direction of thought is from the analogy to the principle, rather than the other way around.”
37. Jonsen and Toulmin (note 34, above), p. 13. The examples are Michael Walzer , Justand Unjust Wars: A Moral Argument with Historical Illustrations(New Y ork: Basic Books , 1977) and Sissela Bok , Lying: Moral Choice in Public and Private Life(New York : Pantheon Books , 1978).
38. See Burton(note 25, above), pp. 31-40. The entire second section of his book is devoted to this question. Brewer(note 24, above), p. 951, uses the term“rational