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General Issue

Analogical Reasoning by Reference to Statute: What is the Judicial Function?

Author

The Hon Michelle Gordon AC

Analogy by reference to statute as a tool of legal analysis in the development of the common law is not prohibited. Recent cases confirm not only the existence of the tool but provide evidence of its use and application. However, to state that the judiciary on occasion develops the common law by analogy to statute – a concept that has been labelled the ‘doctrine of analogy’ – is simply to make a statement of conclusion. And that statement of conclusion invites several further questions. Is analogical reasoning by reference to statute qualitatively different from the usual type of analogical reasoning on which the common law depends? From what authority is this mode of reasoning derived? Put in different terms – what is the judicial function? This paper proposes that viewing the development of the common law through the lens of formal rules and substantive reasoning can assist in identifying the way the judiciary develops the common law by reference to statute, and the basis upon which the judiciary develops the common law by reference to statute.

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