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"Smart people (like smart lawyers) can come up with very good explanations for mistaken points of view."

- Richard P. Feynman, Physicist

"There is a danger in clarity, the danger of over looking the subtleties of truth."

-Alfred North Whitehead

January 24, 2011

Critical Thinking - The Similarity/Uniqueness Paradox

To “think like a lawyer” law students are taught to “reason by analogy”. Reasoning by analogy is a form of inductive reasoning in which one compares a group of facts associated with one phenomenon with the facts associated with another phenomenon and then comes to some reasoned conclusion. In law, the phenomenon being considered is usually a case in front of one court, and another appellate case.

The legal process uses reasoning by analogy to compare one set of facts in a case with another set of facts in a published appellate case, and then make a conclusion on whether or not the cases are similar enough to make a reasoned decision on whether the appellate case is controlling precedent. Reasoning by analogy also comes into use in the law, in evidentiary questions, such as whether or not “other-acts” evidence are relevant to an issue that they are being offered for. We compare the circumstances of the case before us with the circumstances of the “other-acts”.

Reasoning by analogy will involve a potential source of thought error called the similarity-uniqueness paradox.[i] This paradox states that all things are both similar and different. One can identify an infinite number of similarities between two things, and at the same time identify an infinite number of differences. The error arises: “…first, by allowing genuine differences to be obscured by similarities, and second, by allowing genuine similarities to be obscured by differences.”[ii]

For example, the first error is committed when we stereotype groups of people to come to a conclusion about a single individual. We see similarities and allow these similarities to obscure any differences.

I see this error also occurring in the context of sentencing, when the prosecution makes the argument that the defendant is “pure evil”. I have not yet met the person about whom I could not find something good (or bad.)

The second error is committed when we only see the difference and allow these differences to obscure the similarities. That error comes into play when we see only differences and don’t recognize similarities between two different groups. For example, one group of citizens may be comprised of Republicans and the other Democrats, but they are both groups of citizens of the United States, both groups of human beings, etc.

The antidote to this error is to first identify the criteria that will be used for evaluating whether an item is similar or different. The reasons for the criteria must bear on condition that is probative to an issue in the case. For example, why should we care, when comparing cases, if one car was red and the other car was white, or that they were both white? Is the color of the car probative to an issue in the case? Why is the criterion probative?

After probative dimensions are selected, we must ask what similarities and what differences exist between the items being compared. We should be aware of “points of critical distinction” which is the point where two similar items start to differentiate.[iii]

Part of the job of an accomplished advocate is to take all cases that are arguably precedential, and then, through arguing similarities and differences, show the Court, in a credible manner, how all cases support the client’s position. The Court must first decide if the criterion for identifying the similarities and differences are probative of the issue, and then consider all the probative similarities and differences, to determine the precedential mandate of the cases on the case before the court. Some analyses are easier than others.



[i] Levy, David A., 1997, Tools of Critical Thinking-- Metathoughts for Psychology, Waveland Press, Inc. Long Grove, ILL., pp. 34.

[ii] Ibid. p. 41.

[iii] Ibid. p 43.

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

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