The Research On The Point Of Comparison In Analogy

In legal methodology, the "analogy" has been a controversial existence.Kaufman is unique to introduce the philosophy concept of " type" and "natureof things" into legal research, eloquently proclaiming the existence ofanalogy. Whether in the interpretation of statute in civil law system, or inthe analysis of judicial precedent in common law system, the core point ofanalogy has always been the "judgment of similarity", or the so-called "pointsof comparison". Generally, the research of it is made in two ways, namely onthe value orientation taken by judges in determining the "points ofcomparison", as well as the specific operation of the comparative pointsduring the administration of justice. The former take the attitude of legalcommunity as the main determining factor, which is strictly restrained by theintention of previous precedents. While in the latter way, the judge will firstly integrate his understanding of the entire law with the features extracted fromthe target cases, and then identify the appropriate statute or precedent.Secondly, the judge will restate the rules contained in the statute or precedent.Thirdly, the judge will assess the rules and attempt to abstract them asprinciples. And then, by examining the value orientation of the principles, thejudge will decide whether to apply it to the target case. At this point, what isthe reason in the selection and judgment of the points of comparison? Howcould it be convincing? This issue, related to the soul of the administration ofjustice, is not about the procedure of comparative point selection, or thejudge’s procedure confidence, as well as his recognition of legal professionalcommunity attitudes and previous substantial rules.