Gavin Howe
Analogical arguments are a common feature of discussions in law, ethics, and politics. An analogical argument claims that two distinct things are similar, and therefore what is true of one is also true of the other. In law, analogies are used to resolve issues on which there is no previous authority, by drawing on an inference from one situation to another based on similarity. The use of analogies in law provides a stable basis for replicable decisions and allows for the gradual evolution of the law. Legal analogies are distinguished by the need to use a legally relevant basis for drawing an analogy between two situations.
| Characteristics | Values |
|---|---|
| Provides a stable basis for replicable decisions | People need to be able to predict the actions of the courts and formulate plans accordingly |
| Allows for the gradual evolution of the law | New values and a new consensus can emerge in a series of decisions over time |
| Strikes a balance between conservative and progressive social values | Links the use of analogical reasoning to the optimal promotion of a common set of social values |
| Helps resolve issues where there is no previous authority | Involves an inference drawn from one particular situation to another based on similarity |
| Extends a precedent from one case to a legally similar one | Used to extend the scope of a statute beyond what is written |
| Provides a cornerstone of legal argument and judicial decision-making | Used to establish common law marriage |
| Allows for inductive reasoning | Helps derive a general rule from multiple legal norms or precedents and apply it to a new case |
| Used to argue for a woman's right to have an abortion |
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What You'll Learn
Analogies are used to fill gaps in existing laws
Analogies are used in law to fill gaps in existing laws, relying on the similarities between two objects or situations to derive a general rule or make a legal argument. This is known as analogical reasoning, and it is particularly useful when there is no previous authority or precedent to rely on.
In law, analogies are used to draw inferences from one situation to another based on their similarities. For example, in the famous article "A Defense of Abortion", philosopher Judith Thomson uses an analogy to argue for a woman's right to abortion. In her analogy, a woman wakes up one morning to find an unconscious violinist attached to her body, keeping the violinist alive. Thomson argues that the woman has the right to detach herself from the violinist, even if it leads to the violinist's death. This argument by analogy concludes that a woman has the right to abort an unwanted baby in certain cases.
The strength of an analogical argument depends on the number of similarities between the two objects or situations being compared. Aristotle's theory provides four criteria for evaluating analogical arguments: the number of similarities, the reduction of similarity to identical properties and relations, the presence of underlying common causes or general laws, and the absence of a presupposed acquaintance with the underlying universal.
Analogical reasoning in law can take the form of inductive or deductive reasoning. In inductive reasoning, a general rule is derived from multiple legal norms or precedents and applied to a new case. In deductive reasoning, the argument involves deduction from a rule that applies to both cases. However, some modern authorities, such as Richard Posner, argue that analogy may be inadequate for judicial reasoning, suggesting it is merely a mixture of induction, deduction, and rhetoric.
The use of analogies in law has a long history, particularly in common law systems, where it has been considered a cornerstone of legal argument and judicial decision-making. For example, in early English law, judicial extensions of statutory language were common, and by the 16th century, this practice was justified under the Aristotelian doctrine of "equity of the statute". Today, the use of analogies in law continues to be a valuable tool for resolving legal issues and extending precedents to legally similar cases.
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They are a cornerstone of legal argument and judicial decision-making
Analogies are a powerful tool in legal argumentation and judicial decision-making, providing a cornerstone for legal reasoning and judgement, especially in common law systems where the use of analogies has a long and established history.
At its core, an analogy draws a comparison between two objects or situations based on their shared similarities. In a legal context, this involves inferring from one situation to another based on their likeness, but with a critical twist: the analogy must be legally relevant. This legal relevance is the key differentiator between a simple analogy and a legal analogy, or "argument from analogy". The strength of an analogy lies in the number of similarities between the two objects or situations being compared.
The use of analogies in law serves multiple purposes. Firstly, it provides a stable basis for replicable decisions, allowing for predictability in court actions and enabling people to plan accordingly. This stability is a cornerstone of the legal system, providing a check against arbitrary judicial decisions. Secondly, the use of analogies allows for the gradual evolution of the law. Judges can distinguish poor decisions from good ones, and over time, new values and consensus can emerge, striking a balance between conservative and progressive social values.
Legal analogies are often employed when there is no previous authority on an issue, filling a gap in existing laws or precedents. This is particularly evident in statutory law and case law, where analogies are used to extend a precedent from one case to a legally similar one. For example, in Brazil, the Supreme Federal Court established same-sex common-law marriage by drawing an analogy with the provision for opposite-sex common-law marriage in the civil code. This demonstrates how analogies can be used to fill in legislative gaps and shape judicial decisions.
Despite their widespread use, some modern authorities have challenged the validity of analogies in legal reasoning. Critics argue that analogies may entrench past errors and that they lack argumentative force. Nonetheless, analogies remain a fundamental tool in legal argument and judicial decision-making, shaping the interpretation and application of the law.
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They can be used to justify progressive or conservative values
Arguments from analogy are common in the law because they can be used to justify progressive or conservative values. In common law systems, analogy has traditionally been seen as a cornerstone of legal argument and judicial decision-making. The typical use of analogy in common law is to extend a precedent from one case to a legally similar one. This can be seen as a conservative practice, as it provides a stable basis for replicable decisions, allowing people to predict the actions of the courts.
For example, in the American legal tradition, Richard Posner regards analogy as a mixture of induction, deduction, and rhetoric. He believes that analogy should be replaced by considerations of correctness and stability, which aligns with a conservative viewpoint. On the other hand, analogy can also be used to justify progressive values by allowing for the gradual evolution of the law. Careful judges can distinguish bad decisions and introduce new values and consensus over time.
An example of an argument from analogy being used to justify progressive values is the Supreme Federal Court's establishment of same-sex common-law marriage. This was achieved through analogia legis to the provision of the Brazilian civil code, which allowed for opposite-sex common-law marriage. This demonstrates how analogy can be used to extend legal principles to new situations, promoting progressive social change.
Additionally, arguments from analogy can be used to justify progressive or conservative interpretations of statutes. For instance, in early English law, judicial extensions of statutory language were common, but this practice was later deemed outside the judicial role. However, English courts continued to extend statutes by analogy when the "same mischief" was involved, and this was justified under the Aristotelian doctrine of "equity of the statute". This shows how analogy can be employed to interpret and apply statutes in ways that reflect either progressive or conservative values, depending on the specific context and the underlying reasons for the legal norms.
Overall, the use of arguments from analogy in the law is a powerful tool that can support both progressive and conservative values. It provides a balance between stability and change, allowing the law to evolve while also providing a predictable framework for decision-making.
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They are used to argue for moral correctness
Analogies are a common feature of legal argument and judicial decision-making, especially in common law systems. They are used to resolve issues where no previous authority exists, by drawing inferences from one situation to another based on similarities. The strength of an analogy depends on the number of similarities between the two situations being compared.
Arguments from analogy are often used to argue for moral correctness. For example, in her famous article "A Defense of Abortion", philosopher Judith Thomson uses an analogy to argue for a woman's right to have an abortion in the case of an unwanted pregnancy. In the analogy, Thomson imagines someone waking up one morning to find themselves attached to an unconscious violinist whose life depends on remaining attached. Thomson argues that, in this case, the person has the right to detach themself from the violinist, even if it leads to the violinist's death. By extension, she argues that a woman has the right to abort an unwanted baby, as the foetus is using her body to stay alive. This argument relies on the assumption that because the two situations share relevant similarities, what is true in one case is also true in the other.
Another example of an argument from analogy can be found in discussions of the creation of the universe. The analogy compares the universe to a watch, suggesting that just as a watch is too complex to have come about by accident and must have been created by someone, the universe is even more complex and must have been created by a highly intelligent being. This argument assumes that the similarities between the two objects support the conclusion that the universe was created by a superior intelligence.
Arguments from analogy can be a useful tool for advocating for moral correctness, as they allow for the extension of legal precedents or principles to new cases or situations. By drawing similarities between two cases, analogies can be used to argue for the application of the same legal principles or norms, even in situations where no previous authority exists. This helps to promote consistency and predictability in the law, as it provides a basis for replicable decisions that individuals can use to plan their actions.
However, it is important to note that arguments from analogy have been criticised for their potential to entrench errors made in past cases and their reliance on the assumption that similar principles should apply to similar cases. As such, some authorities argue that analogy is at best a heuristic tool, without any argumentative force of its own.
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They can be used to establish common-sense models
Analogies are a common feature of legal arguments and judicial decision-making, particularly in common law systems. They are used to establish common-sense models by drawing on similarities between two situations to extend a precedent from one case to another legally similar one. This is based on the presumption that similar principles should be applied to similar cases.
The strength of an analogy lies in the number of similarities between the two situations being compared. For example, in 1769, Priestley's argument established a prima facie plausibility by highlighting structural similarities between two domains. Aristotle's theory provides four influential criteria for evaluating analogical arguments: the number of similarities, identical properties and relations, underlying common causes or general laws, and the generalisation of the argument.
Analogies can be used to establish common-sense models by providing a relatively stable basis for replicable decisions. This allows people to predict the actions of the courts and make plans accordingly, serving as a check against arbitrary judicial decisions. In this way, the use of analogies strikes a balance between conservative and progressive social values.
However, it is important to note that analogies are not without their limitations and critics. Some argue that they are merely a mixture of induction, deduction, and rhetoric, and that they can entrench errors made in past cases. Nonetheless, analogies remain a common tool in legal reasoning, particularly when establishing new precedents or interpreting statutes.
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