Mark Washofsky
the work of lawyers and judges. Some scholars go so far as to deem analogy(or casuistry, as it is sometimes called) the distinctive method of legal reasoning.** Others recognize it as one mode of reasoning, albeit an important one, out of a number of modes that jurists customarily employ.” It is essentially a four-step process, beginning with the identification of a problem or target case(B), that is, a situation that requires an answer or solution. Step two is to find a basepoint or source case(4), a case that has previously been decided and that seems to be an appropriate starting point from which to reason and to analyze the problem or target case. In step three, one points out the respects in which the problem or target case is similar to the base-point case as well as the respects in which the two cases differ. Step four, finally, requires that one determine whether the two cases are sufficiently similar so that the solution or answer reached in the basepoint case should apply to the problem case as well or that they are sufficiently different so that the solution to the earlier case does not apply to the case at hand. In legal terminology, one argues that case 4 either serves or does not serve as a suitable precedent for case B, so that, on the basis of the principle that like cases ought to be treated alike, the solution to 4 should(or should not) control our response to B.
The phrase“legal terminology” raises an important theoretical issue. We say that analogy is a mode of something called legal reasoning, an approach to analysis presumably unique to the community of jurists and the practice of law, yet we recognize that this form of reasoning is precisely the way we think about and analyze many problems we encounter in everyday life. To take but one example:** Mother allows older brother to stay up until 9:00 p.m., and younger brother seeks the same treatment(step one). Younger brother argues(step two) that the rule governing older brother’s bedtime(4) is a source-case for his own issue(B), the problem case. He does so (step three) by pointing to the similarities between him and older brother: both are children in the same family, and this shared factor