Very Like a Whale: Analogy and the Law

This is a draft. The final version is published in Law, Culture and the Humanities, Vol. 13, No. 3, pp.335-352, 2017, DOI: 10.1177/1743872115606009

SMU Dedman School of Law Legal Studies Research Paper No. 383

33 Pages Posted: 15 Jun 2016 Last revised: 29 Mar 2018

See all articles by Jeffrey Kahn

Jeffrey Kahn

Southern Methodist University - Dedman School of Law

Date Written: 2015

Abstract

Analogical reasoning is common in legal writing, just as analogies are a part of everyday life. Indeed, they may be inescapable features of human cognition. Used well, analogies illuminate the writer’s reasons and persuade the reader. Used poorly, however, they may obscure or even replace the precision and detail in reasoning that is crucial to the development of law. Without entering the ongoing debate about the nature of human thought, this article explores some of the dangers present in the relationship that analogy maintains with law. In particular, the article examines the risks inherent in analogizing across a technological or social divide. The article concludes by noting the long-term consequences of analogies and metaphors in shaping thought and, therefore, society.

Keywords: analogy, metaphor, simile, rule of law, technology, social context, terrorist watchlists, Riley v. California, Terry v. Ohio, Latif v. Holder, U.S. v. Al-Nashiri, Guantánamo Bay

Suggested Citation

Kahn, Jeffrey, Very Like a Whale: Analogy and the Law (2015). This is a draft. The final version is published in Law, Culture and the Humanities, Vol. 13, No. 3, pp.335-352, 2017, DOI: 10.1177/1743872115606009 ; SMU Dedman School of Law Legal Studies Research Paper No. 383. Available at SSRN: https://ssrn.com/abstract=2795115

Jeffrey Kahn (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States
(214) 768-2792 (Phone)
(214) 768-4330 (Fax)

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