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Analogical reasoning

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What it is: general definition of analogy[edit]

Analogy constitutes a mode of human and animal reasoning based upon similarity (resemblance) existing between the items (objects) being compared. Under this notion it is sometimes also comprehanded a result of such reasoning, called then also analogical conclusion, or a fact that the comparison bewteen concrete items (objects) has been made - and such different meaning of analogy is usually known directly from the context in which this word has been used.

The aforementioned items (objects) can be here persons, animals, plants things, features (properties) behaviours, actions, relations, causal relations in given situations or more complex states of affairs - provided one of them is better known than the other.[1]

Analogy results in the conclusion that if one item (object) is relevantly similar to another that means that the latter possesses also this characteristic or characterizes of the former that we know for certain that characterizes the former but do not know that characterizes the latter.[2]


Applications and types of analogy[edit]

Language, literature and humour[edit]

  • Under the guise of metaphor, analogy enables people to transmit their thoughts and outlooks in an indirect or allusive manner.[3]
  • In literature and poetry analogy is used in order to make people laugh. The humoristic value of analogy can easily be noticed in cartoons and comic performances.[4]
  • Analogy helps humans in making linguistic generalizations and categorization.[5]
  • Analogy can be discerned in the creation and emergence of terms present in language (similarity that obtains between the persons, animals, things or events yields the need of understanding them together under one common notion).[6]
  • Analogy may facilitate the using of particular terms and concepts as well as understanding - upon the terms and phrases coined in language - the ways in which people comprehend the world and relate to each other.[7]


Rhetoric and argumentation[edit]

Analogies can be used for purpose of persuasion, formation of attitudes and other forms of argumentation. They seem to function here more as ex post justification (or rationalization) of a decision one made before than as a means of inventing solutions for a given problem. The persuasive force of an analogy used for the sake of argumentation may stem not only from the mere similarity between the items (situations) compared, but also from the very emotions (both positive and negative) that are transferred from the things, persons or events chosen as a point of comparison.[8]


Science[edit]

  • Analogies are above all used as a means of conceiving new ideas and hypotheses, which is called a heuristic function of analogical reasoning.[9]
  • Analogical arguments can play also probabative function, serving then as a means of proving the rightness of particular theses and theories. This application of analogical reasoning in science is, however, debatable. Probative value of analogy is of importance especially to those kinds of science in which logical or empirical proof is not possible such as theology, philosophy or cosmology in part where it relates to those areas of the cosmos (the universe) that are beyond any empirical observation and knowledge about them stems from the human insight and unsensory cognition.[10]
  • Analogy may be used in order to illustrate and teach (in order to enlighten pupils on the relations that happens between or inside certain things or phenomena, a teacher may refer to other things or phenomena that pupils are more familiar with).[11]
  • Analogy may help in creating or elucidating one theory (theoretical model) via the workings of another theory (theoretical model).[12]
  • Analogy can be helpful for the creation of notions and their systematization and classification, especially enabling scientists to make generalizations upon the discovery of an analogous structure or analogous internal laws present in different events or objects.[13]


Law[edit]

In law, analogy is primarily used to resolve issues on which there is no previous authority. A distinction can be made between analogical reasoning employed in statutory law and analogical reasoning present in precedential law (case law).


Analogies in statutory law[edit]

In statutory law analogy is used in order to fill the so-called legal gaps or loopholes or lacunas (lacunae).

First, a gap arises when a specific case or legal issue is not explicitly dealt with in written law. Then, one may try to identify a statutory provision which covers the cases that are similar to the case at hand and apply to this case this provision by analogy. Such a gap, in civil law countries, is referred to as a gap extra legem (outside of the law), while analogy which liquidates it is termed analogy extra legem (outside of the law). The very case at hand is named: an unprovided case.

Second, a gap comes into being when there is a statutory provision which applies to the case at hand but this provision leads in this case to an unwanted outcome. Then, upon analogy to another statutory provision that covers cases similar to the case at hand, this case is resolved upon this provision instead of the provision that applies to it directly. This gap is called a gap contra legem (against the law), while analogy which fills this gap is referred to as analogy contra legem (against the law).

Third, a gap occurs when there is a statutory provision which regulates the case at hand, but this provision is vague or equivocal. In such circumstances, to decide the case at hand, one may try to ascertain the meaning of this provision by recourse to statutory provisions which address cases that are similar to the case at hand or other cases that are regulated by vague/equivocal provision. A gap of this type is named gap intra legem (within the law) and analogy which deals with it is referred to as analogy intra legem (within the law).

The similarity upon which statutory analogy depends on may stem from the resemblance of raw facts of the cases being compared, the purpose (the so-called ratio legis which is generally the will of the legislature) of a statutory provision which is applied by analogy or some other sources.

Statutory analogy may be also based upon more than one statutory provision or even a spirit of law. In the latter case, it is called analogy iuris (from the law in general) as opposed to analogy legis (from a specific legal provision or provisions).

In statutory law analogy is also sometimes applied in order to liquidate the so-called conflicting or logical gap (i.e. the situation when two or more statutory provisions contradict each other) or the sui generis gap which stems from the lack of statutory regulation enabling the delivering of a decision whose passing is required by the law. Some other - less common as so-called ‘pertinent application of law’, ejusdem generis, typological notions or presence of analogical pattern of reasoning in an a fortiori and comparative argument - usages are also distinguished.[14][15]


Analogies in precedential law (case law)[edit]

First, in precedential law (case law), analogies can be drawn from precedent cases (cases decided in past). The judge who decides the case at hand may find that the facts of this case are similar to the facts of one of precedential cases to an extent that the outcomes of these cases are justified to be the same or similar. Such use of analogy in precedential law pertains mainly to the so-called: cases of first impression, i.e. the cases which as yet have not been regulated by any binding judicial precedent (are not covered by a ratio decidendi of such a precedent).

Second, in precedential law, reasoning from (dis)analogy is amply employed, while a judge is distinguishing a precedent. That is, upon the discerned differences between the case at hand and the precedential case, a judge reject to decide the case upon the precedent whose ratio decidendi (precedential rule) embraces the case at hand.

Third, there is also much room for some other usages of analogy in the province of precedential law. One of them is resort to analogical reasoning, while resolving the conflict between two or more precedents which all apply to the case at hand despite dictating different legal outcome for that case. Analogy can also take part in ascertaining the contents of ratio decidendi, deciding upon obsolete precedents or quoting precedents form other jurisdictions. It is too visible in legal eductaion, notably in the US (the so-called 'case method').

An argument from analogy employed in precedential law is called case analogy as opposed to analogy employed in statutory law which is accordingly termed statutory analogy.[16][17]


Analogies as a means of application of legal rules[edit]

In precedential law as well as in statutory law, analogy is also considered as a means of application of legal rules (statutory and precedential), serving thus as an alternative to legal deduction (legal syllogism). Then, there are compared instances to which a given rule applies with certainty with the facts of the case at hand. If the sufficient (relevant) similarity between them obtains, the rule is applied to the case at hand. Otherwise, the rule is deemed as inadequate for this case. Such analogy becomes a legal method.

Application of legal rules through analogy is more typical of the common law legal systems, especially when one deals with the so-called holdings (the denotation of a binding element of a judicial precedent in the US), being in civil law legal systems rather a proposition than an official mode of applying the law.

The instances from which analogy starts here off are called: base points, typical instances or paradigmatic cases.[18][19]


Restrictions on the use of analogy in law[edit]

In legal matters, sometimes the use of analogy is forbidden (by the very law or common agreement between judges and scholars). The most common instances concern criminal, administrative and tax law.

Analogy should not be resorted to in criminal matters whenever its outcome would be unfavorable to the accused or suspect. Such a ban finds its footing in the very principle: “nullum crimen, nulla poena sine lege”, a principle which is understood in the way that there is no crime (punishment) unless it is expressly provided for in a statutory provision or an already existing judicial precedent.

Analogy should be applied with caution in the domain of tax law. Here, the principle: “nullum tributum sine lege” justifies a general ban on the employment of analogy that would lead to an increase in taxation or whose results would – for some other reason(s) – be to the detriment to the interests of taxpayers.

Extending by analogy those provisions of administrative law that restrict human rights and the rights of the citizens (particularly the category of the so-called “individual rights” or “basic rights”) is as a rule prohibited. Analogy generally should also not be resorted to in order to make the citizen's burdens and obligations larger or more vexatious.

The other limitations on the use of analogy in law, among many others, pertain to:

  • the analogical extension of statutory provisions that invlove exceptions to more general statutory regulation or provisions (this restriction flows from the well-known, especially in civil law continental legal systems, Latin maxims: “exceptiones non sunt excendentae”, “exception est strictissimae interpretationis” and “singularia non sunt extendenda”)
  • the making of the use of an analogical argument with regard to those statutory provisions which comprise enumerations (lists)
  • extending by analogy those statutory provisions that give impression that the Legislator intended to regulate some issues in an exclusive (exhaustive) manner (such a manner is especially implied when the wording of a given statutory provision involves such pointers as: “only”, “exclusively”, “solely”, “always”, “never”) or which have a plain precise meaning.

In civil (private) law, the use of analogy is as a rule permitted or even ordered by law. But also in this branch of law there are some restrictions confining the possible scope of the use of an analogical argument. Such is, for instance, the prohibition to use analogy in relation to provisions regarding time limits or a general ban on the recourse to analogical arguments which lead to extension of those statutory provisions which envisage some obligations or burdens or which order (mandate) something. The other examples concern the usage of analogy in the field of property law, especially when one is going to create some new property rights by it or to extend these statutory provisions whose terms are unambiguous (unequivocal) and plain (clear), e.g.: be of or under cartian age.

The aforementioned bans on the use of analogy concern rather analogy which goes beyond the possible linguistic meaning of a statutory provision in question and do not pertain to analogy whose conclusions would remain within this meaning.[20][21][22]


Nomenclature[edit]

Analogy in law – apart from the terminological distinctions mentioned above – can be found also under such Latin names and phrases as:

  • “argumentum a simile (a simili)”, i.e. an argument from similarity or an inference based upon similarity
  • an argument or reasoning “a pari”
  • “argumentum a similibus ad similia”
  • “argumentum (inference) per analogiam”
  • an argument "ab exemplo", i.e. an argument from a paradigmatic example.[23][24]


Uniqueness of legal analogy[edit]

Legal analogy is sometimes claimed to be of a different nature than analogy that occurs in empirical science and everyday life. It is due to several peculiar factors. First, there is the lack of possibility of verification of conclusions of legal analogy on empirical grounds, which entails the necessity of performance of a legal analogical argument both heuristic and probative function. Second, legal analogy, as the law itself, is by definition prescriptive, non-descriptive. Third, it has an obligatory character: a judge is in many circumstances obliged to reason by analogy (treat similar cases in a similar manner). Fourth, the use of analogy in law rather does not hinge on complex underling doctrines or theories. Fifth, serious practical consequences flow from the use of analogy in law. Sixth, the points of comparison are easily recognizable in case of legal analogy. Seventh, analogy in law becomes a vehicle for extension of authority. Eighth, how to reason by analogy is a subject of legal training and education. Ninth, legal analogy has gained enormous amount of attention and scrutiny amongst scholars.[25]


Structure of legal analogy[edit]

Legal analogy usually assumes the classical structure:

A case A possesses features X, Y, Z and has ascribed legal consequence G (the first premise).

An unregulated (unprovided) case B possesses features X, Y, Z (the second premise).

Therefore, the case B should be ascribed the legal consequence G (the analogical conclusion).

or:

There is a rule in force which addresses cases which features are A, B, C, D (the first premise).

There are unregulated (unprovided) cases which features are A, B, C and E or cases which features are A, B, C, D and E or cases which features are A, B, C and non-D (the second premise).

Therefore, there should be also a rule in force which addresses cases which features are A, B, C and E or A, B, C, D and E or A, B, C and non-D that prescribes the same or similar legal consequece for these cases as the rule which addresses cases which features are A, B, C, D (the analogical conclusion).

Legal analogy can, however, assume also the structure of (mathematical) proportion, i.e.: A is to B as C is to D or A is to B as B is to C.[26]

The contemporary proponents of proportional analogy, including legal one, are Chaïm Perelman and Lucie Olbrechts Tyteca.[27][28]

Specifically, in law, analogy of proportion takes the form:

1) Determination of the relation that obtains between the facts of the regulated (provided) case and its legal consequence.

2) Determination of the relation that obtains between the facts of the case at hand and their posited legal consequence (i.e. the consequence that is supposed to be potentially adequate for this case).

3) Having ascertained that the relations pointed out in points 1 and 2 are identical or similar to each other, attribution to the case at hand the legal consequence which has been posited for that case.[29][30]


Everyday life[edit]

  • Analogy can be used in order to find solutions for the problematic situations (problems) that occur in everyday life. If something works with one thing, it may also work with another thing which is similar to the former.[31]
  • Analogy facilitates choices and predictions as well as opinions/assessments people are forced to do daily.[32]
  • Analogy is helpful in distribution of goods and privileges, partition of burdens and dispension of treatment of other kind people deal with in everyday life.[33]


Relevant (sufficient) resemblance[edit]

The most intriguing in analogy is the very resemblance (similarity) which ascertainment leads to posing the conclusion through this kind of reasoning. On logical grounds it cannot be explicated, not least utterly. Some of its explication is linking analogy with intuitive thinking, the thinking which features, inter alia, consist in making associations, including those based upon similarity, contiguity and causal relations.[34]

Tying analogy to intuitive thinking explains both that it can be trustworthy and that it can plany not only heuristic function but also probative one. It also elucidates why analogical conclusions can be arrived at very fast, some of such conclusions appears – to people – to be better than others despite they all are logically plausible, and that analogical conclusions reached by people who possess vast knowledge and experience are more valuable that analogical conclusions to which laypersons come. It also makes it clear that reasoning by analogy may be conducted without mediation of general rules, which let this reasoning to be visibly distinct from deduction and induction, and hence representing a separate category of inference on its own terms.[35]

Connecting analogy with intuitive thinking reveals also the very source form which people know that something is similar to something else as well as explains how people are able to choose between competing analogies.[36] It also explains why analogy is non-transitive (A may be relevantly similar to B, but at the same time A may be not relevantly similar to C which is relevantly similar to B), or even non-symmetrical (A may be relevantly similar to B, but B may be not relevantly similar to A).[37] It gives also an answer to the question how the same analogical conclusions reached in some moment may be valid while in another moment invalid.[38]


Relation to metaphor[edit]

Interestingly, metaphors, which are figures of speech but may also serve as arguments in dispute or discourse, are sometimes perceived as akin to analogy. It is thus, for instance, claimed that a metaphor is 'a condensed analogy' or that it is 'analogical fusion' or that they both 'operate in a similar fashion', are 'based on the same mental process' or that 'the basic processes of analogy are at work in metaphor'. Some mention also that 'a border between metaphor and analogy is fuzzy' or that 'the difference between them might be described (metaphorically) as the distance between things being compared'.[39]


Notes[edit]

  1. Maciej Koszowski, Analogical Reasoning in Law, Cambridge Scholars Publishing: Newcastle upon Tyne 2019, pp. 28-30, 143-160.
  2. Maciej Koszowski, Analogical Reasoning in Law, Cambridge Scholars Publishing: Newcastle upon Tyne 2019, p. 23.
  3. Maciej Koszowski (2017) Multiple Functions of Analogical Reasoning in Science and Everyday Life. Polish Sociological Review no. 1/2017, pp. 13-14.
  4. Maciej Koszowski (2017) Multiple Functions of Analogical Reasoning in Science and Everyday Life. Polish Sociological Review no. 1/2017, pp. 13-14.
  5. Maciej Koszowski (2017) Multiple Functions of Analogical Reasoning in Science and Everyday Life. Polish Sociological Review no. 1/2017, pp. 16-17.
  6. Maciej Koszowski (2017) Multiple Functions of Analogical Reasoning in Science and Everyday Life. Polish Sociological Review no. 1/2017, pp. 15-16.
  7. Maciej Koszowski (2017) Multiple Functions of Analogical Reasoning in Science and Everyday Life. Polish Sociological Review no. 1/2017, pp. 16-17.
  8. Maciej Koszowski (2017) Multiple Functions of Analogical Reasoning in Science and Everyday Life. Polish Sociological Review no. 1/2017, p. 13.
  9. Maciej Koszowski (2017) Multiple Functions of Analogical Reasoning in Science and Everyday Life. Polish Sociological Review no. 1/2017, pp. 4-5.
  10. Maciej Koszowski (2017) Multiple Functions of Analogical Reasoning in Science and Everyday Life. Polish Sociological Review no. 1/2017, pp. 7-10.
  11. Maciej Koszowski (2017) Multiple Functions of Analogical Reasoning in Science and Everyday Life. Polish Sociological Review no. 1/2017, pp. 6-7.
  12. Maciej Koszowski (2017) Multiple Functions of Analogical Reasoning in Science and Everyday Life. Polish Sociological Review no. 1/2017, p. 6.
  13. Maciej Koszowski (2017) Multiple Functions of Analogical Reasoning in Science and Everyday Life. Polish Sociological Review no. 1/2017, pp. 5-7.
  14. As to the whole section, see Maciej Koszowski, The Scope of Application of Analogical Reasoning in Statutory Law. American International Journal of Contemporary Research no. 1/2017 (v. 7): 16-34.
  15. Maciej Koszowski, Analogical Reasoning in Law, Cambridge Scholars Publishing: Newcastle upon Tyne 2019, pp. 171-181, 187-190.
  16. As to teh whole section, see Maciej Koszowski, The Scope of Application of Analogical Reasoning in Precedential Law. Liverpool Law Review no. 1/2016 (v. 37): 9-32.
  17. Maciej Koszowski, Analogical Reasoning in Law, Cambridge Scholars Publishing: Newcastle upon Tyne 2019, pp. 170-171, 173, 176, 177-178.
  18. As to the whole section, see Maciej Koszowski, Legal Analogy as an Alternative to the Deductive Mode of Legal Reasoning. The Indonesian Journal of International & Comparative Law no. 1/2017: 73-87.
  19. Maciej Koszowski, Analogical Reasoning in Law, Cambridge Scholars Publishing: Newcastle upon Tyne 2019, pp. 171-173.
  20. As to the whole section, see Maciej Koszowski, Restrictions on the Use of Analogy in Law. Liverpool Law Review no. 3/2016 (v. 37): 137-151.
  21. Maciej Koszowski, The Scope of Application of Analogical Reasoning in Precedential Law. Liverpool Law Review no. 1/2016 (v. 37): 29-30.
  22. Maciej Koszowski, Analogical Reasoning in Law, Cambridge Scholars Publishing: Newcastle upon Tyne 2019, pp. 181-183.
  23. As to the whole section, see Maciej Koszowski, The Scope of Application of Analogical Reasoning in Statutory Law. American International Journal of Contemporary Research no. 1/2017 (v. 7): 16-17.
  24. Maciej Koszowski, Analogical Reasoning in Law, Cambridge Scholars Publishing: Newcastle upon Tyne 2019, pp. 190-191.
  25. As to the whole section Maciej Koszowski, Why is analogy in empirical science and everyday life different from analogy in law?. Studia Iuridica Lublinensia no. 2/ 2016: 127-143.
  26. Maciej Koszowski, Perelman and Olbrechts-Tyteca’s Account of Analogy Applied to Law: the Proportional Model of Analogical Legal Reasoning, Archiwum Filozofii Prawa i Filozofii Społecznej no. 2/2016, pp. 8-10.
  27. Maciej Koszowski, Perelman and Olbrechts-Tyteca’s Account of Analogy Applied to Law: the Proportional Model of Analogical Legal Reasoning, Archiwum Filozofii Prawa i Filozofii Społecznej no. 2/2016, pp. 6-10.
  28. Chaim Perelman and Lucie Olbrechts-Tyteca, The New Rhetoric: A Treatise on Argumentation, Notre Dame 1969, for instance, p. 372.
  29. Maciej Koszowski, Perelman and Olbrechts-Tyteca’s Account of Analogy Applied to Law: the Proportional Model of Analogical Legal Reasoning, Archiwum Filozofii Prawa i Filozofii Społecznej no. 2/2016, pp. 10-11.
  30. Maciej Koszowski, Analogical Reasoning in Law, Cambridge Scholars Publishing: Newcastle upon Tyne 2019, pp. 161-169.
  31. Maciej Koszowski (2017) Multiple Functions of Analogical Reasoning in Science and Everyday Life. Polish Sociological Review no. 1/2017, p. 11.
  32. Maciej Koszowski (2017) Multiple Functions of Analogical Reasoning in Science and Everyday Life. Polish Sociological Review no. 1/2017, pp. 11-12.
  33. Maciej Koszowski (2017) Multiple Functions of Analogical Reasoning in Science and Everyday Life. Polish Sociological Review no. 1/2017, pp. 12-13.
  34. Maciej Koszowski, Analogical Reasoning in Law, Newcastle upon Tyne 2019, pp. 63-107.
  35. Maciej Koszowski, Analogical Reasoning in Law, Newcastle upon Tyne 2019, pp. 108-125, 131-133.
  36. Maciej Koszowski, Analogical Reasoning in Law, Newcastle upon Tyne 2019, pp. 110-112, 116-118.
  37. Maciej Koszowski, Analogical Reasoning in Law, Newcastle upon Tyne 2019, pp. 125-126.
  38. Maciej Koszowski, Analogical Reasoning in Law, Newcastle upon Tyne 2019, p. 126.
  39. For details, see Maciej Koszowski (2017) Multiple Functions of Analogical Reasoning in Science and Everyday Life. Polish Sociological Review no. 1/2017, pp. 13-14.


References[edit]

  • Koszowski, M. (2017). Legal Analogy as an Alternative to the Deductive Mode of Legal Reasoning, The Indonesian Journal of International & Comparative Law no 1/2017: 73–87.
  • Koszowski, M. (2017). Multiple Functions of Analogical Reasoning in Science and Everyday Life. Polish Sociological Review no. 1/2017: 3–19.
  • Koszowski, M. (2017). The Scope of Application of Analogical Reasoning in Statutory Law. American International Journal of Contemporary Research no. 1/2017 (v. 7): 16-34.
  • Koszowski, M. (2016). The Scope of Application of Analogical Reasoning in Precedential Law. Liverpool Law Review no. 1/2016 (v. 37): 9-32.
  • Koszowski, M. (2016). Restrictions on the Use of Analogy in Law. Liverpool Law Review no. 3/2016 (v. 37): 137-151.
  • Koszowski, M. (2016). Why is analogy in empirical science and everyday life different from analogy in law?. Studia Iuridica Lublinensia no. 2/ 2016: 127-143.
  • Koszowski, M. (2016). Perelman and Olbrechts-Tyteca’s Account of Analogy Applied to Law: the Proportional Model of Analogical Legal Reasoning, Archiwum Filozofii Prawa i Filozofii Społecznej no. 2/2016: 5-13.
  • Perelman, Ch, Olbrechts-Tyteca, L. (1969). The New Rhetoric: A Treatise on Argumentation, Notre Dame 1969.
  • Koszowski, M. (2019). Analogical Reasoning in Law, Cambridge Scholars Publishing: Newcastle upon Tyne 2019, ISBN-13: 978-1-5275-2232-9, ISBN-10: 1-5275-2232-6.


External links[edit]


See also[edit]


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From Analogy from Wikipedia: https://en.wikipedia.org/w/index.php?title=Analogy&action=edit&oldid=862345200


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