The Forms of Analogy

Benoit Frydman systematically analyzes the formal structures and epistemic functions of analogical reasoning in legal discourse, drawing on the rhetorical philosophy of Chaïm Perelman. He distinguishes carefully between analogy in the strict philosophical sense—understood as a homology of relations (A:B::C:D) that permits reasoning from known to unknown domains—and analogical reasoning in the properly juridical sense, which involves the extension of established legal regimes to cases deemed equivalent under some relevant aspect. The article identifies two distinct categories of juridical analogy: analogy by resemblance, which operates through metaphorical substitution within a paradigm and grounds itself in the principle that similar situations deserve equal treatment; and analogy by proximity, which operates through metonymic displacement within a syntactic sequence and lacks clear rational foundation. Frydman argues that although formal prohibition of analogy is impractical and epistemically counterproductive, its deployment in legal reasoning should nevertheless be constrained by demanding requirements of explicit justification, demonstrated pertinence, and interpretive economy that privilege arguments requiring fewer rhetorical transformations.