Analogia legis and analogia iuris

an overview from a rhetorical perspective

Giovanni Damele

pp. 243-256

in: Henrique Jales Ribeiro (ed), Systematic approaches to argument by analogy, Berlin, Springer, 2014

Abstract

Legal theory differentiates between statutory analogy (analogia legis) and legal analogy (analogia iuris). Traditionally, statutory analogy (analogia legis) is considered an interpretive argument, which refers to the application of a legal norm regulating a case to an essentially similar case for which no legal norm exists. On the contrary, legal analogy is used in order to fill IN gaps where the statutory analogy does not provide a solution. In these cases, the analogy is not established according to norms, but to the so-called "general principle of law". The analogia iuris can be conceived of as a reference to principles deduced from the "natural law" or from the laws shared by the "civilized nations". In this case, the analogy is ideologically dependent on a peculiar cultural point of view (i.e. the natural law school or traditional legal liberalism). Thus, "legal principles' can also be drawn from the legal system or from constitutional provisions. In this case, however, there is no apparent difference from statutory analogy. In other words: either the analogia iuris is a strategic device used in order to cover an ideological position, or it is an interpretive scheme, which is no different from the statutory analogy. More generally, considering analogy from a rhetorical point of view, that is as a rhetorical argument whose persuasive force depends on degrees of resemblance, the distinction between analogia iuris and legis become marginal, and a reductionist approach can be applied to the analysis of judicial discourse.