Backwardness of law

The Illegitimacy of Analogy

Reasoning by analogy is a staple of legal practice, but entirely illegitimate. Suppose that the legislature prohibits the separation of a product from its trademark. Suppose now that Facebook posts newspaper stories without placing the trademark of the newspaper beside the story. The lawyer might say: “that’s just like selling an iPhone with the name iPhone scraped off of the package!” And so it is. But if there is no reason to think that the legislature was thinking about newspapers when the legislature passed the law, there is no basis for interpreting the law to apply to newspapers. What matters for legitimacy is intent, not analogy. Put another way, lawyers suppose that legislatures intend all cases that apply by analogy to be covered by their laws. But what basis have we to think that? And yet lawyers interpret through analogy all the time.