Legal Analogy

a court’s decision on a particular case not directly provided for by law which is reached either by applying a law covering other similar cases or by applying general and legal principles and the spirit of legislation if the particular case falls within the sphere of legal regulation subject to these principles. The administration of law by analogy is made necessary by imperfections in legislation, by gaps and omissions in the law at the time it is issued, by the subsequent appearance of new social relations subject to regulation by this law, and so forth.

According to Soviet law, the use of analogy in certain specified instances must be directly stipulated by law. Thus, in the USSR, analogy may be applied in civil relations; this is directly stated in the 1961 Fundamentals of Civil Procedure of the USSR and the Union Republics (art. 12): “In the absence of any law regulating a contested relation, the court shall apply the law regulating analogous relations, and in the absence of such law, the court shall proceed from the general principles and meaning of Soviet legislation.” The court must, in each particular instance, thoroughly examine whether the case under consideration is not directly covered by some law so as to exclude any possibility of arbitrary application of law by the courts.

The 1958 Fundamentals of Criminal Legislation of the USSR and the Union Republics, which are now in force, as well as the criminal codes of the union republics adopted on the basis of these fundamentals exclude the application of law by analogy in criminal proceedings, although the previous Soviet criminal legislation allowed its use in exceptional cases and under conditions specified by law. The renunciation of the use of analogy in criminal cases has been dictated by the need to further strengthen socialist legality and to reinforce and increase the guarantees of the rights of citizens on the basis of the democratic principle:’ There cannot be any crime or any punishment unless stated in the law.” In view of the aforementioned, current Soviet criminal legislation presents more precise and differentiated definitions of the formal elements of crimes and the degree and types of punishment.

The doctrine of analogy also does not exist in the present-day legislation of other socialist states (Bulgaria, Hungary, Poland, and Yugoslavia, among others) nor do the courts and investigative agencies of these states apply the doctrine of analogy.

The doctrine of analogy is not explicit in contemporary legislation of bourgeois states. In practice, however, the courts of the countries with the Anglo-Saxon system of law (USA and Great Britain) apply analogy in criminal law by means of so-called judicial precedents.