Very Like a Whale: Analogy and the Law
Paper by Fulbright Scholar Jeffrey D. Kahn published in Law, Culture and the Humanities, vol.13(3), (2017)
The article presents problems of reasoning by metaphor, which is frequently an unspoken modus operandi in common-law systems, if not elsewhere. It presents some theory, drawing heavily on literature, before exploring the problem with concrete examples from U.S. federal cases concerning the right of police to search a cell phone, the use of terrorist watchlists to control air travel, and the use of military commissions in Guantanamo Bay, Cuba. Unusually, it ends with a picture of Guantanamo...
Hamlet: Do you see yonder cloud that’s almost in shape of a camel?
Polonius: By the mass, and ’tis like a camel, indeed.
Hamlet: Methinks it is like a weasel.
Polonius: It is backed like a weasel.
Hamlet: Or like a whale?
Polonius: Very like a whale.
– Hamlet, Act 3, Sc. 2