Woodchopper Revisited 11

basis of something other than formal demonstration. All of this is reminiscent of the famous remark of Justice Oliver Wendell Holmes, Jr. :“General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise.” In dealing with issues of moral or legal import, it is rare that we proceed from a general concept to the solution of a specific case, for the applicability of that concept to the case is itself a matter of analogical reasoning.’(How do we know that principle X covers case Y unless we have already identified the similarities between them?) Yet that reasoning itself requires a judgment of the relative importance of those similarities. And such judgment, by its nature, is not determined by logical necessity. Some theorists, to be sure, make a stronger claim for analogy, namely that it is a“valid”(and not merely“probable”) approach to truth in that its conclusions are supported by the professional skills and craft virtues of those who employ it.** This notion strikes me as excessively mystical,* an all-too-sure confidence in the capacity of the jurist or the ethicist to make correct inferences. The very fact that analogical inference involves an act of the imagination(one“sees” or intuits a potential similarity between cases and then tests that intuition) suggests that we should be careful about speaking of its“validity,” a term more suited to deductive analysis. The weaker claim, at any rate, is more easily defended. Analogy is a necessary and ubiquitous element of human reasoning, but it requires an act of judgment on the part of its advocate in order to prove its point. That judgment, to win wide acceptance, will necessarily draw upon the advocate’s educated sense of what the relevant interpretive community will generally hold to be the correct legal or ethical resolution of the case. Such is perhaps the best that anyone can do in the field of legal or ethical reasoning, and for that reason, the conclusion will probably pass the test of legitimacy: that is, the interpretive community will accept it as a legitimate(if not the only legitimate) answer to the question. It remains, however, a judgment; it does not enjoy the status of demonstrable proof.