Analogy#Law

In analogy is the application of a legal standard with other conditions for the application of a similar, unregulated state of affairs in jurisprudence.

• 2.3.1 example

Historical Background

The legal concept of analogy goes back to the glossators, each tested at the individual case-related sections of the Pandects, whether the legal rules are applicable to similar cases.

The counterpart of the analogy is the teleological reduction in which the facts of a norm in retrospect will not be extended but limited.

Requirements

See: Loophole / close the gaps

The analogous application of a rule would be considered, if in a given situation, there is no rule of law, ie a gap in the law or regulatory gap exists. In many cases it is required that this plan is unconstitutional, that is, was not intended by the legislature. In contrast, held that a Planwidrigkeit can only be recognized as essential for an analogy, if one only accepts the subjective interpretation method. According to the objective method of interpretation one could contrast come to the conclusion that an analogous application is installed, so there is a gap in the law, although the historical legislature intended to establish no legal consequence to the case proven. The question of whether a gap can be filled by an analogy is, however, to determine in both cases by design.

The presence of these conditions, then the other standard as may be so applied by analogy to the facts.

Loophole

A loophole exists when the facts are not subsumed within the wording of the law. Unless the law the appropriate application of other provisions providing for what the phrase " shall apply mutatis mutandis " is characteristic, it is in contrast to the normal case, a statutory analogy.

Analogy prohibitions

A loophole is but in any event not before, when a so-called analogy prohibition is applicable. According to the principle of the Basic Law " nulla poena sine lege " an analogy is prohibited in criminal law at the expense of the offender. In contrast, an analogy is, however, considered in favor of the offender as admissible. A similar result for the administrative law. There is an analogy is generally prohibited as a basis for violations of basic rights by the administration due to the reservation of the law.

Planwidrigkeit

According to the subjective interpretation method a loophole plan unconstitutional, if it is assumed that the legislature has simply overlooked in the regulation of a complex to make an arrangement. It is often possible but also from the values ​​of the constitution or any general clauses deduced that there is a gap plan unconstitutional because the legislature would otherwise set in contradiction to fundamental valuations.

Comparable interests

It is assumed that the interest in a similar position when both situations are similar in all essential features. This is a value judgment.

Example

For example, the interest in a similar position when dependent from the perspective of those affected by the accident, whether a relevant standard exists or not ( eg the timing of the execution of an administrative act in the pursuit of declaratory relief ).

Double analogy

Also the possibility to take a control twice analog, is. This occurs when a legal provision for two different aspects is not directly applicable. This is necessary, for example, in a situation in the administrative process, in which a sought administrative has done for timing, for example, preliminary legal obligation of the action. § 113 paragraph 1 sentence 4 Code of Administrative Procedure is used twice analogy in this situation. § 113 paragraph 1 sentence 4 Code of Administrative Procedure is generally applicable only to legal challenge if the administrative act has been done according to claim filing. In the case described, but there is an obligation lawsuit and a settlement before the action was brought and so requires twice the analogy.

Example

In § 961 BGB it says " Take off a swarm of bees, it is abandoned, unless the owner followed him immediately, or if the owner gives up the pursuit. " When this rule is applied to a bumblebee swarm (although literally is by swarm of bees talk ), then there is an analogy.

Analogy in Islamic law

Also, Islamic law recognizes the instrument of analogy. It is known as qiyas (Arabic قياس ), applies in Sunni Islam according to the Qur'an, Sunnah and scholarly consensus as the fourth source of Islamic law, and is still used today as a method for obtaining standards. The rules for the qiyas are discussed in the compendia of Islamic legal theory.