The danger of analogy lies in the fact that we prefer naturally to
depend on something already known, and that the preference is the
greater in proportion to our feeling of the strangeness and ominousness
of the particular intellectual or natural regions in which we find
ourselves. I have already once demonstrated[141] how disquieting it is
to notice, during the examination of the jury, that the jurymen who ask
questions try to find some relation to their own trades even though this
requires great effort, and seek to bring the case they are asking about
under the light of their particular profession. So, however irrelevant
the statement of a witness may be, the merchant juryman will use it to
explain Saldo-Conti, the carpenter juryman to explain carpentry, the
agriculturist to notice the farming of cattle, and then having set the
problem in his own field construct the most daring analogies, for use in
determining the guilt of the accused. And we lawyers are no better. The
more difficult and newer a case is the more are we inclined to seek
analogies. We want supports, for we do not find firm natural laws, and
in our fear we reach out after analogies, not of course in law, because
that is not permitted, but certainly in matters of fact. Witness X has
given difficult testimony in a certain case. We seek an analogy in
witness Y of an older case, and we observe the present issue thus
analogically, without the least justification. We have never yet seen
drops of blood on colored carpets, yet we believe in applying our
experience of blood stains on clothes and boots analogically. We have
before us a perfectly novel deed rising from perverted sexual
impulse--and we presuppose that the accused is to be treated altogether
analogously to another in a different case, although indeed the whole
event was different.
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account