I've been reading through a fascinating book by Lloyd Weinrib, entitled Legal Reason: The Use of Analogy in Legal Argument.  In it,  Professor Weinrib seeks to rescue law from the pesky realists and restore analogy to its rightful place at the centerpiece of legitimate legal argument. I'm the type of pesky realist he decries, but I'll try to relay his argument, not to demolish it (I'll leave that argument on both sides to the legal philosophers) but rather to show a comparable precedent in Muslim experience to his other nemeses, the logicians of the world.

The general criticism of analogy is that it is not logically rigorous, which to Weinrib is obviously true and equally obviously irrelevant.  That is, deductive logic is quite unassailable once one accepts the premises.  All sheep are white, that animal is a sheep, therefore that animal is white.  The truth of the conclusion can only be questioned if the premises are wrong.  Clearly analogy doesn't work the same way.  The Qur'an prohibits the consumption of wines, for example.  Does that extend to beer?  Opiates?  Liquids?  Clearly logic can't provide you a certain answer.  Some logicians would then say the uncertainty basically makes this not reason but unreason, a fallacy, a silly way to go about making decisions because so fundamentally unreliable that it's not worth paying attention to.  It's like the guy who bets all his money on black at roulette because the wheel has turned up red the last three times and it's due.  It's just wrong, as wrong as a gut instinct.

Weinrib's point is that experience drives the determination, not logic, but that doesn't mean it's not reasoning or that it is some sort of mental fallacy.  If I see some animal I've never seen before in my life and someone asks me if it is dangerous, I'm likely to compare it to the other animals I know that look pretty similar and make a guess.   Will I be right?  If I use the right criteria, criteria I gain from experience, I am more likely to be, or so the argument goes.  For example, the size of teeth, or the motions the animal makes, or the sound of its voice.  If I go by color (an infant might), I'm not analogizing properly, I'll get myself into some trouble.  And so it is reasoning, it is used to get you to a result and it's not based on deducing from a rule really, it's an experiential guess.  It's not going to be right always, but it's good enough as it goes.  We live pretty well by it anyway, he argues.

He applies this to an actual case where a court was asked to decide whether or not liability extends to steamboat operators for goods stolen from a passenger's room. We have two rules, one makes innkeepers liable for goods stolen from a tenant's room, and one says railroad operators are not liable for goods taken from a sleeping carriage, consistent with the general rule of tort which would not impose liability.  Weinrib's point is that when asked to decide, the court does engage in a legitimate form of experiential reasoning.  Why does liability extend in hotels, not railroads?  One moves and one does not is on its face, a little silly.  There must be something else at work, the court's job is not to make the law but to discover it, to extent the analogies properly.

The idea, Weinrib says, is one of trust, when you go to a hotel, you trust the innkeeper to keep your room safe, it's part of what he does, and the railroad carriage car by contrast carries no such special relationship given all the people wandering all over the train, the coaches are usually shared, etc.  The steamboat's private quarters, like a cruise ship's private quarters, are really hotel rooms, as a result, they do carry the same trust and the court rules with the folks who lost their stuff.

Now to be clear, I don't buy any of this.  I think you have to search long and hard to come up with a case that is this neat.  Here's what usually happens next.  Some fellow in the cruise ship industry calls up his Senator, whose boats the Senator uses a lot, and the guy sticks into midnight legislation an overrule of this decision.  Following that, railroad passengers turn out to be quite upset about their missing stuff, and an enterprising young Congressman realizes his district has a lot of them who travel to Chicago from work (let's just say he's from Gary) and introduces legislation that makes the railroads liable.  Both laws pass.  Now what?  What's the analogy now? Extend to cover what? Either we make one up that's rather lah lah land or we acknowledge this whole business is sausage making ugly. And it's not just legislative either, judges with biases can make their own analogies from a case like this that will take them the other direction. Sure there are good analogies and bad ones, based on experience, just as there are good arguments and bad in statutory interpretation, but the one you ultimately pick is a policy preference.  I'm with Posner, the rest is rhetoric, not reasoning.

But none of this is my point, my point is how the debate that Weinrib has with the logicians in many ways replicates the precisely same argument you hear between the Shi'a and the Sunnis.  The Shi'a jurists categorically reject analogy as unreliable and imprecise.  The Shi'i story goes that Abu Hanifa and Ja'far as-Sadiq got into an argument once about the acceptability of using qiyas.  Ja'far as-Sadiq, the sixth Shi'i Imam, asked Abu Hanifa, eponym of the largest Sunni school, to opine on which crime is worse, murder or adultery.  Abu Hanifa replies murder, and Imam Sadiq then asks why only two witnesses are required for it and four for adultery, if the former is a more serious accusation.  Imam Sadiq then asks him which is more important, fasting or prayer, and Abu Hanifa says prayer.  So Imam Sadiq says, then why must a menstruating woman make up the days she fails to fast due to her period, and yet does not need to make up the days she is not permitted to pray for the same reason.  Imam Sadiq concludes, and I quote:

Fear God, and apply no analogy in religious matters, which is based on your arbitrary opinion (ra'y), for it was Satan who has invented the analogy.

First, no comments on how this exchange didn't happen, the point isn't historicity for heaven's sake, it's about each community's views, as revealed by this wonderful narrative.  But it is a Shi'i story, so Abu Hanifa more or less is the foil for Imam Sadiq's brilliance, he can't muster a response to anything.  If he did, I suppose he might provide analogies that are justifiable (murder as a worse crime requires easier proof to carry out the more important punishment; prayers come too often to be made up easily) and the response would be that this is an "opinion", it is arbitrary, it is unreliable and therefore cannot be used for religious justifications of God's Will. 

Abu Hanifa might then argue that it is hardly arbitrary, for if Abu Hanifa had said all liquids could not be drunk because of a ban on wines, everyone would recognize this as silly, that the analogy has a basis in reason.  And Imam as Sadiq would say is caffeine part of it?  How about opium?  And at what point are you going to admit it's not God's Will but your own opinion that is wandering about? 

To be clear, Imam as Sadiq, or the Shi'a construction of him, is not as a Scalia ultra-textualist who demands following the words and only the words.  That's a Sunni school known as the Zahiris, he is not close to there.  Rather, he is an ultra-rationalist in that he believes fervently in the purity of reason, and in its capacity to guide and enlighten, and does not find analogy to fulfill the requirements of reason, but rather understand it.  He seeks the certainty and elegance of deductive logic, the Cartesian notion that the world can be explained through reason, that God operates through reason, but that analogy is not reason, but a thought fallacy, Satan's delusion.  Abu Hanifa understands it differently, to him an analogy may guide, it may enlighten, it may extend law where it might not otherwise fall, and yes it isn't elegant, and yes it isn't pure, but it works, it works for dangerous animals and it works for God's Will.

And so the argument turned then and so it turns now.

HAH