COURT DECISIONS BY ANALOGY IN THE CONTEXT OF THE THEORY OF SEPARATION OF POWERS
Rubrics: LEGAL SCIENCES
Authors:
1.
Russian Technological University — MIREA
2.
Russian Technological University — MIREA
Type:
Article
Pages:
from 122
to 127
Status:
Published
Received:
20.10.2023
Accepted:
05.12.2023
Published:
26.12.2023
Subject area:
UDC 34
Language:
Russian
Keywords:
analogy of law, analogy of statute, reasoning by analogy, separation of powers, the negative-answer question
Abstract:
Reasoning by analogy is one of the oldest methods of decision—making. In cases where the similarity between two situations prompts us to solve one case like the other, they talk about an analogy. In addition, reasoning by analogy is an integral part of legal reasoning. It can be argued that every legal tradition uses some variant of analogy to justify judicial decisions. Currently, judicial decisions by analogy are one of the most difficult, important, but at the same time controversial problems of jurisprudence. The increased pace of technological progress has determined the impossibility of the law (whether it is a written law or a precedent) to provide for all cases that must be covered by law. Due to the fact that the law lags significantly behind changing public relations, the issue of solutions by analogy is now more acute than ever. The main views on solutions by analogy are considered and analyzed. A comprehensive comparative legal analysis of current trends in the development of solutions by analogy in Germany and the Russian Federation has been carried out. It can be said unequivocally that domestic law, as well as German law, departs from the principle of separation of powers in favor of the functionality and reality of law. It seems that this should be interpreted exclusively positively, since the purpose of law, first of all, is to effectively regulate public relations, which is impossible without its relevance, which solutions by analogy are designed to provide.
Reasoning by analogy is one of the oldest methods of decision—making. In cases where the similarity between two situations prompts us to solve one case like the other, they talk about an analogy. In addition, reasoning by analogy is an integral part of legal reasoning. It can be argued that every legal tradition uses some variant of analogy to justify judicial decisions. Currently, judicial decisions by analogy are one of the most difficult, important, but at the same time controversial problems of jurisprudence. The increased pace of technological progress has determined the impossibility of the law (whether it is a written law or a precedent) to provide for all cases that must be covered by law. Due to the fact that the law lags significantly behind changing public relations, the issue of solutions by analogy is now more acute than ever. The main views on solutions by analogy are considered and analyzed. A comprehensive comparative legal analysis of current trends in the development of solutions by analogy in Germany and the Russian Federation has been carried out. It can be said unequivocally that domestic law, as well as German law, departs from the principle of separation of powers in favor of the functionality and reality of law. It seems that this should be interpreted exclusively positively, since the purpose of law, first of all, is to effectively regulate public relations, which is impossible without its relevance, which solutions by analogy are designed to provide.
Keywords:
analogy of law, analogy of statute, reasoning by analogy, separation of powers, the negative-answer question
analogy of law, analogy of statute, reasoning by analogy, separation of powers, the negative-answer question
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