Review article
https://doi.org/10.25234/pv/7365
ANALOGY IN LAW: MEANING AND USE
Žaklina Harašić
orcid.org/0000-0002-4395-3114
; Associate Professor, Theory of Law and State Department, Faculty of Law, University of Split, Domovinskog rata 8, 21000 Split, Republic of Croatia
Abstract
Conclusions by analogy are common in all areas of human activities, including law. Conclusion by analogy in law can be reduced prima facie to the same form as the conclusion by analogy in general i.e. two premises and a conclusion. However, it differs from analogical conclusion in general, because one premise in law conclusion must be normative (not only factual). Researches into analogical conclusions (in general and in law) have been done from many aspects and by a number of authors. There is a consensus only on an elementary form, and it is founded on the similarity of two objects (two features) in some characteristics, which draws a conclusion that these objects (features) are similar in some of their features. When it comes to analogy in law, there are four types of analogies: A statutory analogy (analogia legis), law analogy (analogia iuris), the inter legem analogy, and an analogy we use in law of precedents. These analogies are utilized to interpret legal norms and the loopholes in the law are closed (with exception of criminal law where there are no loopholes). This becomes both particularly interesting and disputable when it comes to legal principles.
Keywords
Conclusion by analogy; similarity; precedents; closing loopholes in the law; legal principles
Hrčak ID:
214254
URI
Publication date:
31.12.2018.
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