The historical and epistemological obstacles 163 situation using the tools of quasi-normative concepts. This may look, at first sight, like the inductive method of reasoning since the mental process is, seemingly, one that goes fromthe particular to the general. But this is just to apply the rule-model to a process that is not exclusively based on symbolic knowledge."*^ Indeed this aspect of legal reasoning is incorporated into the common law notion of ratio decidendi itself. In order to be binding the material facts of a precedent must be analogous to the facts of a litigation problemin hand; and so to arrive at the conclusion that ‘for the purpose of the rule in Rylands v Fletcher electricity is analogous to water’ or ‘electricity is within the rule in Rylands v Fletcher one is reaching a conclusion by a reasoning process that involves the use of non-symbolic knowledge. For there is no rule as such that forces a judge to conclude that electricity is analogous to water. It is simply dictated by considerations outside of the rule of Rylands v Fletcher itself and while some, perhaps many, of these considerations might be reducible to the symbolic language of propositional rules, the actual process itself of comparing the image of water and electricity is not one that is reached through the manipulation of propositional symbols. It is a form of reasoning consisting “nonpas dc symboles mais d’images, d’états affectifs, de schemes, de prototypes souvent intraduisihles par une expression linguistique”And when a translation into rules is possible, “elle s’accompagne d’nne perte dhnformation, de dimension ... considérahle”.^^ 8. Analogy and the interpretation of facts The point can be illustrated by reference to another example involvingan accident at sea which resulted in the discharge of oil which in turn caused damage to the plaintiff’s property.According to the trial judge “if one seeks an analogy from traffic on land, it is well established that persons whose property adjoins the highway cannot complain of damage done by persons using the highway unless it is done negligently”. And he concluded that these “cases amplify the principle in Holmes v. Mather which dealt with collisions on the highway itself and which is the foundation of the modern practice whereby a plaintiff in a running- down action sues for negligence and not for trespass”-"’-. Nowthere is no logical reason why, given the choice of two lines of precedent, such an accident had to be treated as being analogous to a road accident where damages Sec generally Samuel, Entre Ics mots ct Ics choses, op.cit. Lord Simon in FA & AB Ltdv Lupton [1972] AC634, 659. Delacour, op.at., p. 35. Ibid., pp. 35-36. Esso Petroleum Ltdv Southport Corporation [1953] 3 WLR733; [1954] 2 QB 182; [1956] AC 47 218. [1953] 3 WLR 773 at 777 per DevlinJ.
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