Analogy (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.

In one formulation, the method of analogy in applying precedent has the following steps:[7] 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.

[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][9] In a more recent example, in Popov v. Hayashi, a valuable baseball was caught by two different people, confronting the California Superior Court with a fact pattern not governed by established legal standards for possession.

[10] The court reasoned by analogy with a New Jersey case involving children tossing an abandoned sock that turned out to contain money in determining that possession required both physical control and intent, and that under the circumstances it was appropriate to order an equitable division among the two people who caught the baseball.

[11] The court's decision in Popov has been analogized to the civil law practice of analogia legis to fill in gaps in existing legal norms.

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.

The court generalized from these existing provisions to create a new cause of action for unjust enrichment, allowing the builders to recover from the property owner.

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.

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.

Early modern common law commentators such as Edmund Plowden encouraged the analogical construction of both civil and criminal statutes.

[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] Forms of legal analogy arose in antiquity in several traditions, including classical Greek, Indian, and Chinese law.

[54] 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.

[61] 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.

[63] In the civil law tradition, the systematic use of analogy dates to medieval times, when the glossators and subsequent commentators used it to fill in gaps in the topics covered by the Roman legal authorities such as the Codex of Justinian.

[64] The fourteenth-century jurist Lucas de Penna wrote that "where the reason is the same or greater, the law is drawn to a similar case even if not expressed".

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).

[76] By the sixteenth century this practice was justified under the Aristotelian doctrine of "equity of the statute" (lequity de lestatut).

"[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 separation of powers or of parliamentary sovereignty.

This principle is often referred to as the "casus omissus rule" or in contemporary United States textualist scholarship the "omitted-case canon".

[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.

[91] Efforts to reform Chinese criminal law along Soviet lines, including limiting or abolishing the use of analogy, failed in 1957 with the beginning of the Anti-Rightist Campaign.

[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.

[94] In classical Hindu law, the doctrine of atidesha (अतिदेश, atideśa), sometimes translated as "transference", developed in chapters 7 and 8 of the Purva Mimamsa Sutras was used to extend rules by analogy.

[100] Some Indian courts have more recently claimed to apply atidesha and other Mimamsa interpretive principles in circumstances outside of Hindu religious law.

[101] 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.