Sample from Chapter 8 of Becoming a Critical Thinker

1.4 Analogical arguments in law

One field where analogical arguments abound is law. Judges and lawyers are fond of defending their positions by appealing to precedents analogous to the case at hand. For example, In Stanley v. Georgia the court wrote, "If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his house, what books he may read or what films he may watch." Several years later a lawyer cited Stanley as being analogous to the case he was arguing, viz., a case in which the defendant had been charged with violating the Georgia sodomy statute by committing that act with another adult male in the privacy of his own bedroom. The attorney argued that since the Court recognizes that States have no business in telling a person what to read in the privacy of his own home, they have no business in telling a person what sex acts he can perform in the privacy of his own home. However, Justice Byron White noted some significant differences in the two cases. White argued that just because the two cases involve acts done in private isn't sufficient to make them so analogous that a State has no business in telling a person what sex acts they can perform in privacy. Reading books is a First Amendment issue (freedom of speech, freedom of the press); having sex is not. White also pointed out that there are many other acts which, though done in the privacy of one's own home, doesn't protect them from State legislation: "...the possession and use of illegal drugs do not escape the law where they are committed at home." In other words, there is a strong disanalogy between the two cases.

An even more telling example is the analogical reasoning used by the court to decide People v. Duglash, 41 N.Y.2d 725 (1977). The court cited United States v. Thomas, 13 U.S.C.M.A. 278 (1962). Duglash was charged with attempted murder. The person Duglash shot, however, was already dead when Duglash fired his pistol. Since it is not logically possible to murder a dead person, it seemed plausible that Duglash could not have attempted to murder that person. To do so would be to attempt to commit a crime which is factually impossible to commit. The court ruled that the Duglash case was like the Thomas case. Thomas has been charged with attempted rape but it was established that his victim had died before he had sex with her. The court ruled that since the defendant believed his victim was alive, he could be charged with attempted rape. Thus, the court ruled, since Duglash believed his victim was alive, he could be charged with attempted murder. Thus, it had been established in the Thomas case that all that is necessary to attempt to commit a crime is the belief that you are doing so. If your actions demonstrate that you intended to hurt the victim, you can be said to have attempted to commit a crime, even if the victim is dead before your action, thereby making it factually impossible to commit the crime you intend.

What is most interesting to one outside the legal profession is the fact that all this analogical reasoning by precedent ultimately is based upon non-analogical reasoning. For example, the Thomas case was decided without precedent. How was it decided? By analysis of the concepts of `attempted act', `belief,' `intent', etc. It seems reasonable to think that even if Thomas had never existed, the same reasoning that was deemed valid in that case would be valid in the Duglash case. Thus, it seems that argument by precedent, that is by analogy, which plays such an immense role in legal reasoning, is ultimately a search for authoritative support of one's position. One can see it as either bypassing the need for fresh reasoning in new cases or as the search for other's reasoning to support your position or to aid you in forming your arguments. In either case, its importance in legal reasoning would seem more as a way to give the appearance of consistency and authoritativeness than to be truly useful in advancing thought.