The Scope of Application of Analogical Reasoning in Precedential Law

Koszowski, Maciej

doi:10.1007/s10991-016-9178-y

Cited by 1 publication

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“…This scope can be even likened -if not equated -to the ambit of the employment of analogy in the field of precedential law [88]. Not only is analogy used in statutory law in order to fill divergent kinds of gaps, but it can be also useful in resolving conflicts between statutory rules and clarifying the meaning of their wordings.…”

Section: Discussionmentioning

confidence: 99%

Analogical Reasoning in Statutory Law

Koszowski¹

2017

J Forensic Res

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This article addresses the scope of the potential applications of an analogical argument in the domain of statutory law. The author thus shows how analogy leads to the liquidation of different sorts of legal gaps: extra legem, intra legem, contra legem, technical, logical and constructional. He also highlights the role which analogy can play as a universal method of applying particular statutory provisions in concrete cases, the way of coping with obsolete statutes with the help of an analogical inference, or the clarification of the wordings of statutory rules by recourse to reasoning from similarity. In the article, allowance has also been made for the linking of an analogical pattern of thinking with specific legislative techniques such as the 'ejusdem generis canon of construction' and 'pertinent application of statutory law.' In addition, the analogical basis of comparative arguments, the possibility of expanding the domain of statutory law with the use of analogy at the expense of the room reserved for customary and precedential law as well as special forms of analogical reasoning: argumentum a fortiori and analogia iuris have been discussed.

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Section: Discussionmentioning

confidence: 99%