I would like to comment on a significant part, albeit a rather small one contentwise, of Dr Sinclair’s very interesting book – To Reform the World: the use of administrative law analogies in relation with the making of modern international organizations. Before going further, we would need to agree on a definition of analogy. Popular culture may help in that regard. According to Britta Perry, a student at Greendale Community College in the TV Show Community (video available here), an analogy can be defined as “a thought with another thought’s hat on”. In her convincing de Beauvoiresque analogy between “weddings” and “little girls’ tea parties”, Britta however highlights three differences between them, while analogies are generally focusing on “accepted similarities between two systems” (P. Bartha, “Analogy and Analogical Reasoning”, The Stanford Encyclopedia of Philosophy, available here).
Legal analogy, for Chaïm Perelman and Lucie Olbrechts-Tyteca, is not defined as an imperfect resemblance, but as an identity of relations within different domains (See C. Perelman & L. Olbrechts-Tyteca, La nouvelle rhétorique. Traité de l’argumentation, PUF, 1958, p. 500). Analogy then implies that a is to b like c is to d. The goal is to explain a relation that is unknown (a to b), called theme, with the help of a known relations (c to d), called phore. The theme states what one means or wishes to prove, while the phore states what one says so that it may better be expressed or proven. For example, One good piece of news does not guarantee happiness is like one swallow does not make a summer (O. Reboul, “The Figure and the Argument”, in M. Meyer (ed.), From Metaphysics to Rhetoric, Kluwer Academic Publishers, 1989, pp. 175-176). The phore is generally more concrete, or at least more familiar, than the theme. It is the resemblance between the two relations which allows us to infer the fourth term from the three others. We prove b given a, c and d, since the relation between a and b resembles that between c and d. The point of the reasoning, in this example, is that “one has no right to generalize”.
We should also distinguish analogies from metaphors. The metaphor occurs when analogy is condensed through the omission of certain terms. It reduces the resemblance to an identity by evacuating the difference. One can say to reassure an old person anxious about death that it is only a kind of sleep. This metaphor implies an analogy : that death is to living like sleep is to waking (O. Reboul, “The Figure and the Argument”, op.cit., pp. 175-176).
I would like to focus on one particular specie of analogy, the one in which the phore (the known relation) is domestic law, also known as domestic analogies. Read the rest of this entry…