Chapter 8
Analogy
Introduction
Nature
Making Common Law
Introduction
Analogy derives from the classical Greek
word a?a????a
(analogia). In its
original usage this meant proportionality, especially in the mathematical sense.
For this reason and it was sometimes translated to Latin as proportio. By this
means analogy came to refer to an identity of relation
between any two
ordered pairs, whether of mathematical nature or not. Immanuel Kant (1724-
1804) in his text Critique of Judgment
held to this notion, arguing that there
can be exactly the same relation between two completely different objects.
168
Analogy involves reasoning from like to like. If items are alike in one way the
may be alike in another way. Analogy is used in making common law.
Nature
Analogy in modern usage is an inference from one particular to another.
169
Thus, the premises and conclusion with analogy involve particulars. Analogy
involves a case by case extension of a rule or relationship, reasoning from the
particular to the particular.
170
___________________
168
Scholastic Aptitute Tests, which include "analogy questions" in the form "A is to
B as C is to what?" For example, "Hand is to palm as foot is to ____?" An
interesting comment can be made. Most people will intuitivley know the analogy
and thus know that the answer to this question is ‘sole.’ However, many would
have difficulty performing the necessary abstraction to describe the common
relationship between hand and palm on the one hand and foot and sole on the
other. Analogy and abstraction are different cognitive processes, and analogy is
often an easier one.
169
Although our concern is its use in legal reasoning, it is worth noting that
analogy plays a significant role in problem solving, decision making,
and
communication. It lies behind basic tasks such as the identification of places,
objects and people, for example
170
Twining and Miers (1999) pp 351-358
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