Analogy (law)
Analogy in
In the
Although all legal systems use analogy in some fashion, different jurisdictions and legal traditions apply or limit analogy in many different ways. The civil law and common law traditions differ most prominently in the subject matter to which analogy is typically applied: in civil law courts, analogy is most typically employed to fill in gaps in a statute, while in common law courts it is most commonly used to apply and extend precedent. In addition, these legal systems have developed elaborate typologies of analogy, although these are often disputed.
The analogical extension of criminal penalties ("punishment by analogy") and tax liability is prohibited in many modern jurisdictions, under the various legal principles that safeguard legal certainty. Historically, however, punishment by analogy has been part of many legal systems, including those of
Related concepts
Legal analogy is usually considered distinct from extensive interpretation, which stays within the words of existing law. However, some authorities argue that the distinction between the two is unclear or untenable, as both approaches extending the effect of a statute beyond its literal words based on the purpose or intent of the legislature.[1] Some authorities do not distinguish between the two at all.[2]
The use of inductive reasoning to derive a general rule from multiple legal norms or precedents and apply it to a new case is sometimes regarded as a form of analogy, for example [[#Analogia iuris|analogia iuris]], but is sometimes considered a distinct form of legal argument since it does not involve a direct analogy from an established case to a new one.
Legal analogy is also distinguished from related forms of legal argument that also turn on the underlying reason for a legal norm, such as argumentum e contrario and argumentum a fortiori.
The analogical interpretation of statutes may also be distinguished from interpretation by implication, although this distinction is not commonly drawn in the civil law tradition.[3]
Method
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In broad terms, the use of analogy in law arises from the presumption that similar principles should apply to similar cases. In this broad sense, some legal scholars have argued that all legal reasoning is analogical.
More particularly, the general method of legal analogy has been described as having four steps:[5]
- An existing legal norm governs a known case.
- No legal norm governs the current case (in other words, this case represents a case of first impression).
- These two cases are relevantly similar, and are not relevantly dissimilar.
- Therefore, a new norm is created by applying the existing norm analogously in the current case.
The question of what makes the analogized case relevant generally turns on the reason for the existing norm (for example, the ratio legis of a statute or the ratio decidendi of a judicial precedent).[6]
The detailed application of this method varies by the
In case law
In
In one formulation, the method of analogy in applying precedent has the following steps:[7]
- An existing case has certain factual characteristics.
- The current case also has these characteristics.
- A particular legal characteristic applies to the existing case.
- The factual similarities between the current case and the existing case are also relevant to the legal characteristic.
- Therefore, unless there are countervailing considerations of equal or greater weight, the new case also shares the legal characteristic.
- There are no countervailing considerations of equal or greater weight.
- Therefore, the new case also shares the legal characteristic.
An often-cited example of analogical reasoning in case law is Adams v. New Jersey Steamboat Co., in which the New York Court of Appeals was called upon to decide whether a steamboat line was liable for money being stolen from a passenger's stateroom, even if neither the passenger nor the crew had been negligent.[8] There was no settled rule of precedent for steamboat liability. If the same event had occurred at an inn, the innkeeper would have been liable. In deciding the case, judge Denis O'Brien wrote that that a steamboat passenger "procures and pays for his room for the same reasons that a guest at an inn does" and that a "steamer carrying passengers upon the water, and furnishing them with rooms and entertainment, is, for all practical purposes, a floating inn".[4] He therefore concluded that "the duties which the proprietors owe to the passengers in their charge ought to be the same" and that "no good reason is apparent" for departing from the strict liability that applied to innkeepers.[4] Therefore, because the cases were analogous in relevant respects and there were no countervailing considerations, the steamboat company was also liable.[4][9]
In a more recent example, in
In statutory law
In statutory interpretation, analogy is used chiefly in civil law legal systems to extend a statute to cover new situations that are outside the actual language of the statute but within its underlying justification. This kind of statutory interpretation by analogy is formally recognized in the civil codes of most civil law jurisdictions, in both analogia legis and analogia iuris forms.[12] In practice, however, such analogies come into play in only a small minority of cases. A 1978 survey of approximately 1,000 German civil cases found that only 1/20 of them involved statutory analogies.[13]
In addition, a form of analogy also used by the courts in common law jurisdictions to interpret statutes is analogous interpretation: if there are two similar statutes and one has already been construed, the court may construe the second statute by analogy to the construction of the first. This has been referred to as "analogical extensive interpretation".[14]
Some statutes expressly provide for their provisions to be applied analogously. This statutory mandate to analogize gives the resulting analogies greater legal weight.[15] One form of statutorily-mandated analogy is mutatis mutandis application, often translated as "analogous application". For example, the Dutch euthanasia statute provides for the provisions regarding an informed decision by the patient to be applied mutatis mutandis where the patient is incapable of making such decisions.[16]
A more unusual example of mandated analogy is found in the Dutch civil code of 1992, where certain provisions governing liability for animals and dangerous objects call on the judge to analogize the case to a counterfactual. For example, Article 6:179 provides that the possessor of an animal is liable for damage unless the possessor would not have been liable, even if the animal was under his control, under the limitations of liability in the preceding section.[17]
In constitutional law
Even in jurisdictions that do not widely practice statutory analogy, analogical methods may be used for interpreting
In United States constitutional law, rights implied by analogy are often referred to as being in the
In 2022, in
The theory of penumbral rights developed by analogy with those articulated in the constitution has also been adopted in other countries. For example, courts in Bangladesh and India have used penumbral theory to extend a constitutional guarantee of the right to life to a right to a healthy environment.[21]
In treaty law
In addition, some treaties expressly call for their provisions to be interpreted analogously in certain situations. For example, the First Geneva Convention directly addresses the actions of belligerents, but in Article 6 also calls for neutral powers to apply its provisions by analogy.[23]
Classification
Various classifications of legal analogy have been proposed. One typology that has been influential in the civil law tradition classifies legal analogies as intra legem or extra legem based on the
- Extra legem (outside the law) refers to an analogy used to close a gap due to an issue not being clearly dealt with in existing law.[24]
- Intra legem (within the law) refers to an analogy that closes a gap in which a law-controlled provision regulates the case at hand, but is unclear or ambiguous. In such circumstances, to decide the case at hand, one may try to find out what this provision means by relying on law-controlled provisions which address cases that are similar to the case at hand or other cases that are regulated by this unclear/ambiguous provision for help.[24]
Other terms are also used:
- Contra legem (against the law) refers to an analogy used to avoid the unwanted application of a statute to a case. Such an analogy operates to create a gap rather than to fill one. For example, in 1961 the Supreme Court of Spain used analogy contra legem to reason that a statute that on its face applied to restrict the transfer of both bearer shares and nominative shares should not apply to bearer shares.[25]
Analogia legis and analogia iuris
Analogia legis, also known as "statutory analogy" or "analogy from statute", is a method of statutory interpretation in which the legal principle applicable to a fact pattern not covered by a legal norm is determined by analogy to a norm that governs a comparable situation.
The analogy is typically governed by the
When analogia legis is not possible then analogia iuris may apply, in which the analogy is derived not from a statute but from fundamental legal or constitutional principles. Analogia iuris has also been described as the court constructing a new, previously unarticulated general principle of law.[28][29] However, although the distinction between analogia legis and analogia juris is traditional, some authorities have argued that there is no tenable distinction between them, as both involve the same interpretive techniques.[29]
A prominent example of analogia iuris occurred in the Dutch case of
Analogia legis is formally recognized in the civil codes of many jurisdictions. The Portuguese Civil Code for example provides that "cases for which the law does not provide shall be governed by the norm applicable to similar cases".[31] Some countries, such as Ukraine, formally recognize both analogia legis and analogia iuris by name in their civil codes. A number of European countries, including Italy and Slovenia,[32] follow the example of the Austrian civil code in that they provide for both analogia legis and analogia juris, but describe them rather than naming them:
If a case cannot be decided based on either the words of a statute or the natural sense of the statute, consideration must be given to similar cases that have been decided in the statutes and the bases of other statutes related to it. If the case remains in doubt, the case must be decided according to natural principles of law, with regard to the carefully collected and maturely considered facts.[33]
Rule-based and principle-based analogy
Restrictions and criticisms
The principles of legal analogy vary among jurisdictions. Sometimes the use of analogy is forbidden: the most common such limitation is on the use of analogy to extend criminal liability.
Some authorities argue against the use of analogy in legal reasoning entirely, for example on the basis that it is essentially ad hoc or unscientific. In the American tradition, for example, Frederick Schauer argued that analogy in caselaw can only involve deduction from a rule that happens to apply to both cases.[36] Richard Posner regards analogy as merely a mixture of induction, deduction, and rhetoric, which would be better replaced by straightforward considerations of correctness and stability.[36] Lawrence A. Alexander criticized analogy for entrenching the errors made in past cases.[37] In Alexander's phrasing, analogical reasoning in law amounts to asking the question "what would be morally correct in a world in which moral errors were not errors?"[38] Less forcefully, some authorities argue that analogy is at best a heuristic tool, without any argumentative force of its own.[39]
For those authorities that recognize a proper role for analogy in law, some common limitations include the following:
- In common law legal systems, the casus omissus doctrine is often invoked to prohibit using analogy to extend the scope of a statute beyond the written text.[40]
- In tax law, in some jurisdictions, analogies may not be used to interpret tax laws in a way that would lead to an increase in taxation or would otherwise be harmful to the interests of taxpayers.[41] In Polish law, this principle dates to the 14th century, and is expressed by the Latin maxim "nullum tributum sine lege" (no tax without law).[42]
- In many jurisdictions, extending by analogy those provisions of administrative law that restrict human rights and the rights of the citizens (particularly the category of the so-called "individual rights" or "basic rights"). By the same token, analogy generally should not be used to increase a citizen's burdens and obligations.[43]
- Some authorities prohibit using analogy to extend the scope of statutory exceptions to more general provisions. German Federal Supreme Court applied this principle as recently as 1951 but has since largely rejected it.[44]
- Some jurisdictions prohibit using an analogy to extend lists that are enumerated in a statute.
- Some jurisdictions prohibit using analogy to broaden provisions that the legislature intended to be exclusive to a particular subject (such a manner is especially implied when the wording of a given statutory provision involves such pointers as: "only", "exclusively", "solely", "always", "never"), or that have a plain precise meaning.
In criminal law
In most legal systems today, analogy cannot be used in the interpretation of criminal statutes, unless the result is favorable to the accused.[45] Such a ban finds its footing in the maxim nullum crimen, nulla poena sine lege (no crime or punishment without law), which is understood in the way that there is no crime or punishment unless it is plainly provided for in a law-controlled provision or an already existing judicial precedent. Some jurisdictions such as Germany also extend this prohibition to lesser punishments such as contraventions, and to disciplinary proceedings against public servants, even if these are not considered criminal in nature.[46]
In its modern, absolute form, this prohibition is of relatively recent origin. Early modern common law commentators such as Edmund Plowden encouraged the analogical construction of both civil and criminal statutes.[47] In English law, the modern prohibition took hold in the 18th century and was adopted by commentators such as Blackstone and Matthew Bacon.[48]
Among civil law jurisdictions, punishment by analogy was expressly provided for under several early criminal codes, including the Prussian code of 1721 and the Constitutio Criminalis Theresiana of 1769.[49] This practice was criticized by Enlightenment theorists such as Montesquieu and Beccaria.[49]
The first criminal code to bar the use of analogy was the Austrian penal code of 1787.[50] Such bans quickly spread across Europe in the late 18th and 19th centuries, reaching Prussia in 1794 and Germany in 1871.[50] However, punishment by analogy continued to be allowed under the Russian penal code of 1845,[51] and also in Nazi German law following the decree of June 28, 1935.[52]
By legal tradition
Forms of legal analogy arose in antiquity in several traditions, including classical Greek, Indian, and Chinese law. The exact uses and doctrines surrounding legal analogy have developed differently in various different legal traditions.
Greek and Roman law
In the law courts of ancient Athens, where decisions were made by the jury of
In the Nicomachean Ethics, Aristotle advanced an "equitable" theory of statutory interpretation that became the basis of many Western approaches to analogical interpretation:
When therefore the law lays down a general rule, and thereafter a case arises which is an exception to the rule, it is then right, where the lawgiver's pronouncement because of its absoluteness is defective and erroneous, to rectify the defect by deciding as the lawgiver would himself decide if he were present on the occasion, and would have enacted if he had been cognizant of the case in question.[55]
Aristotle's teaching has been adopted historically by authorities in both civil law and common law.[56]
In Roman legal oratory, arguing for a statutory interpretation by analogy was one of several techniques for arguing against a literal interpretation. In that context it was called exemplo multarum legum, "by example of many laws".[57] This technique was widely used by orators but was not recognized by jurists such as Salvius Julianus. Instead, the jurists largely restricted their use of analogy to drawing analogies among similar juristic precedents.[58]
Early Irish law
In the
A Brehon law text that employed analogy particularly extensively was the
A famous although possibly apocryphal example of analogy in Brehon law was king Diarmait mac Cerbaill's sixth-century ruling on a dispute between Columba and Finnian of Movilla over the copying of a religious text, which has been described as the world's first copyright case. According to a possibly apocryphal account first recorded in the 16th century, the king resolved the dispute by analogy to the legal maxim "to every cow her calf", declaring likewise "to every book its copy", so that Columba's copy of the book remained Finnian's property.[62] This has been described as the oldest recorded copyright infringement case.[63]
Civil law
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In
Analogy in general is often described by one or another form of a medieval Latin maxim, Ubi eadem ratio, ibi idem ius (where the reason is the same, the law is the same). This maxim was formulated by the glossator Azo of Bologna in the thirteenth century.[66] It was used to justify extending a limited prohibition on criminal appeals for a few heinous crimes to cover all crimes, on the theory that the same reason applied in all cases.[67] It has subsequently become a commonplace of both civil and common law.
The modern systematic distinction between analogia legis and analogia iuris was first articulated in 1797 by the German jurist
In modern civil law, the most typical use of analogy is to fill
Common law
In common law systems, analogy has traditionally been considered a cornerstone of legal argument and judicial decisionmaking.[72] The most typical use of analogy in common law is to extend a precedent from one case to a legally similar one.[73] However, some modern authorities such as Richard Posner have challenged whether analogy is a valid method of judicial reasoning at all.[74]
The use of analogy in statutory interpretation has a long and controversial history in the common law. In early English law, judicial extensions of statutory language were commonplace.[75] After the mid-14th century, however, this came to be recognized as outside the judicial role.[75] English courts continued, however, to extend statutes by analogy to the extent that cases involved the "same mischief" with which the statute was concerned.[76] By the sixteenth century this practice was justified under the Aristotelian doctrine of "equity of the statute" (lequity de lestatut).[76] In an influential sixteenth-century formulation, Edmund Plowden analogized the relationship of the statute and its equitable interpretation to the relationship between a seed and the fruit around it.[77] Plowden described the use of analogy in statutory interpretation as the power of a court to extend the scope of a statute so that "when the words of a statute enact one thing, they enact all other things which are in the like degree."[78]
The equity of the statute doctrine largely fell out of favor in the late 18th century, coming to be regarded as a breach of the
In most common law jurisdictions today, analogy is largely reserved for the interpretation of precedent.[81] Analogizing a precedent to new facts is approximately the reverse of distinguishing a precedent, although the two are not exactly symmetrical.[81]
Islamic law
In Islamic law, the practice of qiyas (قياس) embraces analogy as well as other related forms of interpretation. Qiyas includes for example argumentum a fortiori and reductio ad absurdum.[82]
A classic example of analogical reasoning under qiyas is the extension of the Quranic prohibition on wine to cover all alcoholic beverages. The qiyas method was originally developed by the early Islamic jurist Abu Hanifa and is given particular prominence in the Hanafi school.
Qiyas is rejected by the
Socialist law
Attitudes toward analogy in socialist criminal law have varied. Acceptance of punishment by analogy has often been associated with legal nihilism.[86]
Punishment by analogy was permitted under the Basic Principles of the Criminal Law of the USSR adopted in 1924 and the subsequent RSFSR Penal Code of 1926, which served as a model for the criminal codes of many Soviet republics.[87] In practice punishment by analogy was rare and largely limited to political crimes.[88] Stalin's 1936 call for legal stabilization reduced the use of analogy in Soviet criminal law, but the practice continued thanks to the advocacy of the legal theorist Andrey Vyshinsky, who championed the limited use of analogy.[89] Legal reforms adopted in 1958, after Vyshinsky's death, eliminated the provision for punishment by analogy.[90]
Punishment by analogy was also formerly permitted under the criminal law of the
Although most Eastern European countries adopted a version of Soviet criminal law following World War II, some never adopted punishment by analogy; these included Czechoslovakia, East Germany, Hungary, and Poland.[94]
Among other countries in the socialist tradition, North Korea adopted punishment by analogy in 1950 but abolished it in the criminal code reform of 2004.[95] Vietnam originally provided for punishment by analogy but abolished it in 1985.[94]
Classical Hindu law
In classical Hindu law, the doctrine of atidesha (अतिदेश, atideśa), sometimes translated as "transference", developed in chapters 7 and 8 of the
Even after the imposition of British justice, atidesha continued to be applied in British colonial courts, often relying on English translations of the relevant texts, for lawsuits between Hindus.[97] For example, in the 1872 case of Tagore v. Tagore, the court applied atidesha to analogize the prohibition on gifts to an unborn person under Hindu law to also prohibit bequests to an unborn person.[98][99] The use of atidesha continued until the 1956 codification of Hindu law.[100]
Some Indian courts have more recently claimed to apply atidesha and other Mimamsa interpretive principles in circumstances outside of Hindu religious law. Justice B. N. Srikrishna criticized this practice and questioned whether these courts had properly applied Mimamsa principles.[101]
Traditional Chinese law
In traditional Chinese law, in contrast to most modern legal systems, magistrates were permitted to use analogy to extend criminal punishments to new situations. The use of analogy reflected a preference under Confucianism to avoid spelling out prohibitions in detail because doing so would encourage the public to merely do the bare minimum rather than aspiring to moral virtue.[102] As Confucius put it:[103]
If the people be led by laws, and uniformity sought to be given them by punishments, they will try to avoid the punishment, but have no sense of shame. If they be led by virtue, and uniformity sought to be given them by the rules of propriety, they will have the sense of shame, and moreover will become good.
Although Confucius himself favored leading by virtue alone, his followers adopted a more legalistic approach in which expectations of virtue were backed by penal sanctions.[104]
In the
Similar uses of analogy continued in subsequent phases of traditional Chinese law, down through the
By country
Australian law
China: Analogical application of precedents identified by the Supreme People's Court as Guiding Cases has been mandatory since 2010.[114] This practice is known as 参照 (cānzhào), sometimes translated as "reference"[114] or as "following by analogy".[115] In statutory law, the analogical extension of criminal statutes has been prohibited since 1998.
Cuba: The Cuban Penal Code of 2022 expressly prohibits the creation of crimes by analogy.[116]
Iceland: Article 69 of the Constitution of Iceland allows criminal provisions to be extended by analogy, but only where the accused conduct is "totally analogous" to "conduct that constituted a criminal offence according to the law at the time when it was committed".[120] This language, which is also found in Article 1 of the General Penal Code, was drawn from the 1869 Danish criminal code.[121] The view that analogy can itself be a source of law is considered outdated, and the provision is interpreted as permitting the Icelandic courts only to broadly construe criminal laws to ensure equal application.[122]
Indonesia: Certain forms of punishment by analogy were permitted under the modifications of Dutch-era criminal law by Article 5, Paragraph 3(b) of the Emergency Law No. 1/1951 on Temporary Acts for Organizing Unity and Uniformization of Civil Courts Powers and Procedures. This 1951 law provided that acts considered criminal under the unwritten "living law" (hukum yang hidup) are subject to the sentence for the most similar crime under the Indonesian Criminal Code.[123] In another form of punishment by analogy, in a famous case in 1983, Bismar Siregar held that the criminal code provision prohibiting theft by deception also applied to men persuading women to have sex through false promises of marriage; the Indonesian Supreme Court however rejected this holding in 1990, on the ground that "honor" was not a "good" to which that provision would apply.[124] Punishment by analogy is prohibited under Article 1 of the 2023 Indonesian Criminal Code, which will take effect in 2026. The effect of this prohibition is not yet clear, as the Article 2 of the 2023 code also provides for punishment of crimes under the living law.[125] The prohibition of punishment by analogy was controversial, and has been criticized for ignoring the Islamic principle of qiyas and for limiting the adaptability of the criminal law.[126]
Italy: The Italian Civil Code follows the Austrian language in calling on courts to use both analogia legis and analogia iuris to resolve cases.[127]
Portugal: The Portuguese Civil Code adopts the Swiss provision calling on courts to extend statutes to cover new situations by applying the law that it believes the legislature would have enacted had it been faced with such a case. In addition, Article 11 of the Code codifies the rule that exceptional rules (normas excepcionais) cannot be extended by analogy, although they can be broadly construed.[129][130]
South Africa: The South African legal system is a blend of English common law, which does not permit statutory analogies, and Roman-Dutch civil law, which contains a rich tradition of such analogies.[131] However, the South African courts follow a strict version of the English casus omissus rule, avoiding analogical extensions of statutes; exceptions are rare and controversial.[132]
Ukraine: Article 8 of the Civil Code of Ukraine expressly recognizes both analogia legis and analogia iuris as valid methods of judicial interpretation.[137][138]
United Kingdom: The United Kingdom consists of multiple countries:
England: The English courts generally follow the casus omissus rule in declining to extend statutes by analogy. As in other common law jurisdictions there is some disagreement on this point, and the rigid literalism of 19th-century English law is no longer followed.[139]
Scotland: The Court of Session may fill legislative gaps by the exercise of its high equitable jurisdiction, known as the nobile officium, although this power is only rarely exercised.[140] The Court of Session also applies analogy in determining which cases are appropriate for exercising the nobile officium.[140]
