1–27; L.L. Wein- reb, Legal Reason: The Use of Analogy in Legal Argument, New Cf. also Ch. Perelman, Imperium retoryki: Retoryka i argumentacja [Eng. The. Retoryka i argumentacja [Empire of rhetoric. Footnotes based on the Polish edition: Aristotle, Retoryka. . 29 Ch. Perelman, Imperium retoryki, op. cit., p. PDF | Eristic methods of the Stalinist courts are a phenomenon, on the one hand, Imperium. retoryki. Retoryka i argumentacja [Empire of rhetoric. Rhetoric and.
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Dame Chaïm Perelman, Imperium retoryki: Retoryka i argumentacja, Judicial Intuition, enbillitaco.ga, pp. Pojcie retoryki Chaim Perelman, Imperium retoryki. Retoryka i argumentacja, t. Mieczysaw Chomicz, Warszawa imperium retoryki pdf American. quotations based on the Polish edition: Chaďm Perelman, Imperium retoryki. Retoryka i argumentacja [Empire of rhetoric. Rhetoric and argumentation].
In consequence, thus comprehended resemblance does not entail the necessity of having identical or even similar legal outcomes in every such case. The outcomes may differ even significantly, provided the relations involved in the cases being compared are the same.
Obviously, this does not mean that these outcomes will never be identical, which in practice may happen too. Incidentally, even if we choose the three-term variant of legal proportional analogy, the legal con- sequences of cases being compared appear to be able to differentiate, at least to some extent.
Indeed, according to Ch. Olbrechts-Tyteca, the common term of such an analogy is to be, by definition, ambiguous. That, in turn, should entail the allowance of having some differences within this term as well. On reflection, however, such proportional legal analogy presents itself as too myste- rious in order to be utilized trustworthily in legal settings.
The process of determining the occurrence of the identity between relations existing between the facts of the cases being compared and their legal consequences is utterly opaque here and needs to be unfolded if we are to trust or even believe it to be workable. The presence of any such factors, however, seems to make the proportional account of legal analogy close to the traditional understanding, depriving it of its uniqueness.
It is noteworthy that the very advocates of proportional analogy, Ch.
Olbrechts-Tyteca, appear to have adopted the same stance. Olbrechts-Tyteca, analogy is something which cannot be either understood in terms of logical inference or in terms of causal relations, being far more complex and puzzling. This account, however, lacks any explanation as to how the identity or similarity of proportions is to be determined. That, in turn, makes it hard to trust such analogy, all the more so in legal matters, whose impact on the life of people is of grave importance and cannot be utterly unpredictable or hap- hazard.
It remains an open question whether the very relations between the facts of the cases used for comparison and their legal consequences can in practice be ascertained at all. Without being able to do that, this account of legal analogy will, however, not go beyond the sphere of merely speculative cerebration. In consequence, all things being equal, the proportion-based account of analogical reasoning does not find the justification necessary for its reliable employment in the legal domain.
Furthermore, it is also highly questionable whether such an account oc- curs in other fields, including the spiritual domain, as its proponents claim. Olbrechts-Tyteca, The New…, p Zarys logiki.
Aldisert, R. Logic for Lawyers. A Guide to Clear Legal Thinking. Notre Dame: LexisNexis. Alexander, L. Demystifying Legal Reasoning. Cambridge: Cambridge University Press.
Nerhot Ed. Fragments of Legal Epistemology, Hermeneutics and Linguistics. Dordrecht: Springer. Wnioskowanie z analogii. Brewer, S. Harvard Law Review , Warszawa: Wolters Kluwer.
Burton, S. An Introduction to Law and Legal Reasoning. Austin: Aspen Publishers. Calleros, C. Legal Method and Writing. New York: Aspen Publishers. Warszawa: C. Christie, G. Cross, R. Precedent in English Law. Oxford: Clarendon. Dwa studia z teorii naukowego poznania. Golding, M. Legal Reasoning. Peterborough: Broadview Press. Hage, J. Studies in Legal Logic.
Hesse, M. Models and Analogies in Science. Holyoak, K. Mental Leaps: Analogy in Creative Thought. Hunter, D. Teaching and Using Analogy in Law.
Journal of the Association of Legal Writing Directors 2. Wprowadzenie do prawoznawstwa. Warszawa: LexisNexis. Koszowski, M. Lamond, G. Precedent and Analogy in Legal Reasoning. In The Stanford Encyclopedia of Philosophy. Lechniak, M. Lublin: Wydawnictwo KUL. Lenoble, J. In: P. Zagadnienia teorii stosowania prawa.
Doktryna i tezy orzecznictwa. Levi, E. An Introduction to Legal Reasoning. Chicago: University of Chicago Press. The Nature of Judicial Reasoning. The University of Chicago Law Review 32 3 , MacCormick, N. Legal Reasoning and Legal Theory. In social science, analogy of a probative nature seems also to be the basis of the method called introspection. Comparing our own experiences and feelings with those of other people, especially those who held prominent positions and are important in public life, we can project how these people will act or what motives stand behind their past behaviors cf.
Ossowski, , pp. Moreover, the recourse to the probative function of analogy appears to be indispensable in cases in which experiments on humans are prohibited. Indeed, in such circumstances one is condemned to conduct research on animals or other non-human organisms and apply the obtained results to human beings only upon analogy without having proven the aptness of these results in this point of reference in any other way.
Among the sciences, the sharing of such characteristics may be seen for instance in: physiology, pathology, physiopathology, psychology or psychopathology see Biela , pp. The same applies to the necessity of experimental study as to how people would behave in situations that cannot easily be provoked in reality such as an economic crisis, the outbreak of war or a nuclear catastrophe Niiniluoto , p.
It is even more striking that all of the research experiments that are carried out in a laboratory presuppose in a sense the taking of the advantage of the probative aspect of analogy. It is due to the very assumption that laboratory conditions are comparable to those that occur outside. In this way, analogy with probative force would come into psychology, biology, chemistry, physics and other sorts of technical sciences see Biela , pp Mutatis mutandis, the same goes for the presence of such analogy in the employment of induction whenever it leads to conclusions about instances objects that were not put under examination.
Another issue is the degree of the probative force of analogy. Indeed, although analogy can serve as an effective means of proof in the above-described settings, that does not mean that its outcome are certain and unchallengeable. How high this probability is seems, however, to be an open question. On the other hand, however, Perelman and Olbrechts-Tyteca point out that despite their being for unconstrained 6 Cf.
Functions of analogy in everyday life Analogy occupies an important place in science but it occurs in daily life and ordinary decision-making as well. Our lives depend on it p. What is also important, however, is that while ordinary people reason by analogy, they may be not aware of the fact that they have just used the aforementioned kind of reasoning.
That is, they do not pay attention to how they think; they simple make pertinent decisions or form opinions which pop up in their minds. Solving ordinary problems, making everyday choices or predictions and stating what is just First and foremost, analogy helps with solving the problematic situations one may encounter in everyday life.
When approaching some problem that needs to be resolved, it seems natural to look at a similar problem which has already been successfully resolved before in the past. Maciej Koszowski that the solutions reached by analogy can easily be checked whether they are the right ones.
When only Mary pours salt on the tablecloth, she will be able to observe if the stains have disappeared or remained. Similarly, after Charlie has turned off his lawn mower and waited a while, there will be no difficulty in determining whether such a solution works or not.
In such cases, analogy can be of some guidance and is one that one may and usually — due to the lack of other pointers — actually does rely on. Comparing goods, events or behaviors, one is thus able to decide what to buy, what to do and of what opinion to be. And Posner , pp. The classic example of the use of analogy made by Aristotle refers also to the sort of practical decisions politicians make in everyday life.
There, upon the fact that the war between Phocians and Thebans, who was neighbors, proved to be an evil to the Thebans, one comes to the conclusion predicts that the war between Athenians and Thebans would also turn out to be an evil to the former since the Athenians and Thebans neighbor to one another too see Nowacki , p.
Equally good illustrations concerning the use of analogy in ordinary situations are those of Holyoak and Thagard and White In addition, as every realtor knows, the most important factor that governs real estate prices is location, and no two properties are located in exactly the same place.
Against the above-mentioned examples one may easily observe that the predictive, opinion- forming and choice-facilitating functions of analogical reasoning are very close to each other.
The same goes for the making of preferences and choices of other kind. It is additionally worth intimating that in all the aforementioned examples, as it was the case in problem-solving, one shall sooner or later get to know whether the analogical conclusions are the correct one. With time, we learn of whether a given shepherd dog is a gentle or aggressive one, whether Sue enjoys her new meal or dislikes it or whether another Toyota Camry also starts in the winter with ease. Regarding options and choices, it is also noteworthy that analogies that seem plausible can in a sense delineate the range of possibilities that are subsequently taken into consideration see Markman and Moreau , pp.
In addition, analogy can feature not only in choices that consist of comparing past with new situations but also in deciding on many alternatives alone. Moreover, analogy is readily employed in everyday life when the distribution of goods, partition of privileges or dispensing of other kind of treatment is at stake. People are eager to compare themselves with others in order to assess whether they are treated fairly or equally.
A good example of such a use of analogical argument in everyday situations is that which is presented by Burton , i. Younger Brother may make an argument for his view by claiming that he is like Older Brother because both are children. Therefore, he thinks, they should be treated alike. When Mother rejects his claim, explaining that older children need less sleep than younger children, she is arguing that there is an important difference between her two children.
This time, however, the nature of the outcome reached by analogy is diametrically different from the nature of the outcomes one obtains in the previously presented applications of analogical reasoning in daily matters.
That is, here, we cannot perform any empirical test that will objectively show if a given analogical conclusion is true or false.
The passage of time is also of no aid here and aptness of an analogical conclusion cannot be perceived in terms of workability or treated as a verifiable fact. The same applies to the opinions one comes to via analogical thinking that concerns the issues of good and evil. Argumentation Analogy in everyday life is amply utilized also for purpose of persuasion, attitude-formation and argumentation.
As such its function consists more in providing justification or rationalization of a decision or option one endorses than in inventing plausible solutions to the problem at hand. Persuasive and argumentative use of analogy is especially prominent in politics see Dunbar , pp. Hesse, , pp. Moreover, the persuasive force of a given analogy has its source not only in its very aptness, but also in the emotions, positive or negative, that are transferred from the item, person or event selected for sake of comparison see Thagard and Shelley, p.
Maciej Koszowski 3. Literature, poetics and humor Analogy, as a means of thought expression, is very familiar to literature, poetry and humor see Holyoak and Thagard , pp. In these domains, it often features, however, not in its pure form, but under the guise of metaphor.
Posner also claims that metaphors are a form of analogy p. The difference between them might be described metaphorically as the distance between things being compared. Likewise, Holyoak and Thagard , p. To Sunstein , p. If we deal with metaphor, we know that the speaker believes that his or her statement is not true.
This statement is not acknowledged to be literally untrue. Metaphors have a less constraining effect on reasoning than do analogies, but they operate in a similar fashion.
Metaphor is an expression forming a non-literal similarity comparison between two things, which has an expressive or affective content and thereby carries meaning. Unlike analogies, metaphors do not have a predictive content and do not strongly constrain the outcome of the 9 They discern some benefits of such an indirect communication.
These benefits range from the very safety of the speaker to the more persuasive or engaging way of getting a message across to the readers from their standpoint. Analogy in its pure or metaphorical form is used in literature, poetry and other sorts of expression not only as a vehicle of more or less direct thought transfer but also in order to make people laugh.
The humoristic value of analogy can easily be noticed in cartoons, comic performances, jokes and a multitude of funny sayings see Holyoak and Thagard , pp. The same goes for inspiration and self-confidence whenever they stem from the comparison of oneself 11 Interestingly, Perelman and Olbrechts-Tyteca , pp.
These metaphors are dormant since with time they have become normal expressions in a particular [natural] language and people have just forgotten their metaphorical meaning — mainly due to the fact of their often [unreflective] repetition.
Hence, to be alive once again, these metaphors need to be awakened, which can be made for instance by developing a fresh analogy with the metaphor as its starting point, or by using the same word twice.
As to analogy in the context of such figures of speech as: allegory, parable and hyperbole see Perelman and Olbrechts-Tyteca , p. On personification see also Lakoff and Johnsen , pp. There is, however, a counter-reason as well, namely the findings [contrary to experiments with rats] do not transfer to humans see Thagard and Shelley , pp.
Maciej Koszowski with the pertinent role model especially someone famous and successful see Thagard and Shelley , pp. Linguistic categorization and conceptualization In everyday life conversations, as speakers of a natural language, we use a vast variety of general terms that denote innumerous objects, relations, features and behaviors.
Astonishingly or not, the emergence of such linguistic notions is likely to involve analogical argument too. These notions be they divided into: common, singular, collective, attributive or abstract terms may be brought into being just through the comparison of different things acts, events, relations and so on and noting what they have in common or in what aspects they differ from each other.
That is, for instance, a shared or unshared feature may be named and form a linguistic term, like particular colors, patterns and many other epithets. From an external vantage point, we can readily observe that objects falling under a particular term are in effect similar analogues to each other in certain relevant respect or respects.
Similarly, we may easily note that objects to denote which language uses two different terms are usually different in some aspects. Such a capacity to categorize appears also to be hard-wired in human minds and be a preliminary condition for effective communication and abstract thinking see Fowler , pp. Furthermore, rendering a successful analogy may, incidentally, result in the extension or confining of the present ambit of notion, especially the abstract one, and thus to the pertinent modification in its current meaning.
Such an analogy can also cause a confusion that calls for some other changes in the ongoing state of language, e.
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