Very Like a Whale: Analogy and the Law

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