A semiotic perspective on the comparison of analogical reasoning in secular and religious legal systems
pp. 295-325
in: Arend Soeteman (ed), Pluralism and law, Berlin, Springer, 2001Abstract
The characterisation of religious systems of law as "analogical", as opposed to "analytical" Western systems (suggested by Schacht in relation to Islamic law) requires refinement. Analogy has been shown to play a major role in legal reasoning in Common Law systems. There may, however, be a relevant distinction between propositional and non-propositional analogy, secular Western systems claiming to eschew the latter while religious systems (particularly, here, Jewish law) endorse it. It is tempting to correlate such a distinction with that between secular and religious ideologies. But this would be inadequate. Viewed within the context of a semiotic model, and taking account of the relations between decision-making and justification, the differences would appear to be ones of degree and presentation rather than reflect essential differences between such types of legal system.