Please speak clearly. Thank you!
There are four common types of legal arguments: deductive, inductive, analogical/disanalogical,
and policy-based. In this lesson we will be looking at analogy based arguments, both analogical
(looking at similarities) and disanalogical (looking at dissimilarities).
One of the main components of common law is the principle of stare decicis, latin for “stand by
the decision.” Essentially, if a rule has been established in a previous legal case, subsequent
cases that have similar issues or facts can be decided similarly. It is stare decicis that supports
the use of precedent, that is, the use of a previously decided case to support arguments when
deciding the present case. When using precedent in a legal argument, you’ll rely heavily on
analogical reasoning.
If you stop for a minute, it’s easy to consider how you’ve used an analogical argument in a nonlaw context. For example, say Mother allows 8 year old Older brother to stay up until 9pm. 5
year old Younger brother demands that he be allowed as well. Younger brother makes the
argument that he is similar to his older brother because they are both her children, therefore
they should be treated alike. Mother rejects this by saying that older children need less sleep –
arguing that there is an important difference in the facts.
An analogical argument is one that attempts to show that the issue and facts of the problem
case are substantially similar to those in a previously decided case, in order to argue that the
problem case should be decided in the same way as the earlier case. A disanalogical argument
is the flipside; it attempts to show that, although the issue in the problem case may be similar to
the earlier case, the facts differ sufficiently to justify a different outcome.
Making an analogical or disanalogical argument requires three primary steps: First, a base point
needs to be established. A base point consists of the relevant facts plus the desired outcome
from the original case. Second, you should align the relevant facts in the original case in terms
of their similarity (analogous) and dissimilarity (disanalogous) to the facts in the problem case.
This will allow you compare and contrast the two cases. Finally, for the facts described, relative
importance needs to be assigned to the facts. This needs to be done because you’ll want to
draw attention to the important ways the problem case is analogous or disanalogous to the
other.
When making an analogical argument, steps two and three are the most vital. By aligning
relevant facts, you can lay out the similarities and dissimilarities between the comparison case
and your own. Assigning weights is important because you want to judge which similarities and
differences are the most important to supporting your argument.
Let’s go back to our bedtime example. The Younger brother offered the similarity in the fact they
were both children of their mother, and therefore should have the same bedtime. The mother
offered the dissimilarity that three years in age separated them. The mother said this disanalogy
was more important than the fact they were both her children and justified the earlier bedtime for
the younger child.
You may note that I decided to pronounce the "/" in the word pairing in the first paragraph. It can often be read aloud in that manner, but you may often hear it changed to "and" to produce more natural sounding speech. For the purposes of this particular recording, and context, I thought pronouncing the punctuation would be most appropriate.
I hope you find my recording useful. Thank you for the interesting text. :)