ABSTRACT
Analogical reasoning is thus a method that conforms to Amartya Sen's description of a comparative, as opposed to a transcendental, approach to justice. Analogical reasoning 'allows people who diverge on abstract principle to converge on particular outcomes'. The use of analogical reasoning in international law is liable to attacks from two directions: From one direction, proponents of voluntarist positivism still challenge its legitimacy on the grounds that it might give rise to rules to which the states have not explicitly consented. Processes of generalisation and systematisation are well-known in the domestic legal doctrine of many nations. It has rightly been pointed out that principles drawn from municipal law are applied only with caution by the International Court of Justice (ICJ). From individual rules of customary international law, then, certain patterns may be derived by way of analogical reasoning.
