ДА ЛИ ЈЕ ДОПУШТЕНА АНАЛОГИЈА У КРИВИЧНОМ ПРАВУ?
Admissibility of Analogy In Criminal Law

Summary/Abstract: In the first part of this paper, the authors present the general theory on analogy, which is first observed as a kind of conclusion and then as a kind of interpretation of law. In the former case, reasoning by analogy is defined as a process of deductive reasoning based on the prior inductive reasoning. In the latter case, the authors present different standpoints of the general legal theory on the statutory and legal analogy. With regards to the debate on the position of analogy in the theory of law, the authors point out to the theoretical standpoint of the Pandectists that analogy is a process which is half way between the interpretation of law in the strict sense and the act of creating the law. The first part of the paper also contains an elaboration on the contradictory standpoints on the existence of legal gaps, which are closely related to the authors’ opinion that the concept of analogy in law has always been associated with and served as an instrument for filling in the legal gaps. In the central part of the paper, the authors provide a comprehensive discussion on the admissibility of analogy in the substantive criminal law. Relying upon the detailed analysis of their mutual relations, the authors conclude that the principle of legality determines the limits of admissibility and application of analogy in criminal law. On these grounds, the authors draw a conclusion that the legal analogy is always prohibited in the contemporary criminal law because it is in direct contradiction with the principle of legality; on the other hand, the application of statutory analogy shall not be excluded outside the prohibited zone, which is determined by this principle. In particular, the authors focus on the analogy intra legem, which is perceived as a third type of analogy and considered to be an admissible method for interpreting the norms of criminal law. This type of analogy is designated as a method for interpreting legal rules on the basis of similarity, where the specific case is resolved within the given legal framework when the law makes allowances for the argument of similarity.

• Details
• Contents