On Analogy

Analogy has a long history. It is one of the most important epistemological tools. It is also a common method that judges use in legal process. The Common-law legal family consider analogy the core of legal reasoning, while in Roman-law legal family, analogy first was a usual method and then was limited to a method that remedy legal loopholes. Furthermore, it was forbidden in some legal branches. In fact, analogy is inevitably used in legal process, because it can't be terminated in solid foundation. The premises of analogy is the existence of legal loophole. Through comparison, hypotheses, conclusion and deduction, the rules of one case is analogized to another. Wholly speaking, the basis of analogy contains type, legal principle and the nature of things. The analogical process is ultimately open, and values play important role in it. We should restrict judges internally and externally, including promoting the quality of judges and explaining the judgment, etc. In legal philosophy, there can't be two things totally the same. The so-called same things are only things that are similar to each other in some respects. So are two cases. From this kind of epistemology, analogy is the true reflection of judicial process. The lawmaking and judicial process both connect life to rules in this way. So analogy is the midpoint of being and ought-to-be. Analogy is universal.