On the Filling of Statutory Gaps Using Analogy, or How to Increase the Legitimacy and Pro-systemicity of Analogical Argumentation in Law
Abstract
The article presents the current state of knowledge regarding the use of analogy in domestic jurisprudence, with the aim of outlining its place and role in the process of finding the law. The performed analysis makes it possible to identify two main functions that the analogy performs, namely the heuristic function and, under certain circumstances, the legitimization function.
If the analogy is to constitute a legitimate and retrospectively verifiable instrument of filling statutory gaps, the reasoning behind its use in a case under consideration must be presented in a logical form, which means the premises lying behind the argumentation by analogy must be reconstructed. Therefore, a deciding authority should, in particular, deal with a question of why the given case was a so-called analogous situation in law, justify the choice of the source of analogy (a particular legally regulated case or legal principle), and the way to resolve discrepancies between the case under consideration and the analogous one.
The article concludes with an overview of the main problems that deciding authorities should pay attention to in situations where they fill statutory gaps using analogy, in which case their resolutions can be expected to increase the pro-systemic approach to law in the processes of law finding.