In jurisprudence, analogy is understood to mean the application of a legal norm with different factual requirements to a similar, unregulated fact. The conclusion by analogy thus extends the scope of a legal regulation to previously unregulated cases. This is based on the principle of equality , if and because the differences between the already regulated and the not yet regulated cases do not justify a different treatment.
The legislature also uses the analogy when it calls for a corresponding or analogous application of a standard. Methodologically, however, this is not a further development of the law by analogy, but the application of the law.
The legal figure of the analogy goes back to the glossators , who checked in the individual case-related sections of the Pandects whether the legal principles were applicable to similar cases.
The counterpart to the analogy is the teleological reduction , in which the fact of a norm is not expanded, but limited in retrospect.
The analogous application of a standard can be considered if there is no legal standard for a specific situation, i.e. H. there is a loophole in the law or regulation. It is often demanded that this is contrary to plan , i. H. was not intended by the legislature. On the other hand, it is argued that a violation of the plan can only be recognized as indispensable for an analogy if one only accepts the subjective method of interpretation. According to the objective method of interpretation, on the other hand, one could come to the conclusion that an analogous application is appropriate, i.e. there is a loophole in the law, although the historical legislature demonstrably did not want to attach any legal consequence to the case. The question of whether a gap can be filled by an analogy, however, has to be determined in both cases by interpretation.
The prevailing opinion must therefore demand that an analogy be considered when
- the “interests are comparable” and
- the lack of a suitable legal norm represents an "unintended loophole",
If these prerequisites are met, then the other standard can be applied accordingly, i.e. analogously to the situation.
No ban on analogy
Analogies are fundamentally permissible as long as they are not excluded according to the basic idea of the relevant law ( argumentum lege non distinguente ).
According to the principle of the Basic Law nulla poena sine lege , an analogy in criminal law to the detriment of the offender is prohibited. In contrast, an analogy in favor of the perpetrator is considered permissible. The same applies to administrative law. There, due to the reservation of the law, an analogy as a basis for encroachments on fundamental rights by the administration is fundamentally prohibited.
There must be a loophole and it must be contrary to plan.
A loophole exists if the matter cannot be subsumed under the wording of the law .
If the law provides for the corresponding application of other regulations, for which the phrase “must be applied accordingly” is characteristic, there is no regulatory gap, but a corresponding application of a standard provided by the legislature itself.
According to the subjective interpretation method, a loophole is unplanned if it can be assumed that the legislature has simply overlooked a regulation when regulating a complex. Often, however, it can also be deduced from the evaluations of the constitution or any general clauses that a loophole is unplanned, as the legislature would otherwise have contradicted fundamental evaluations.
If the legislature has deliberately not enacted the same regulation or has repealed one, an analogy is not possible: "An application of the law beyond the literal sense requires special legitimation. The analogy presupposes the existence of an unplanned regulatory gap the regulation or non-regulation of a certain issue has been decided, the courts are not empowered to disregard this legislative decision by interpreting the provision against its wording "
It is assumed that the interests are comparable if both facts are identical in all essential features. This is a value decision. In the words of the Federal Court of Justice (BGH): "In addition, the facts to be assessed must be legally comparable with the facts regulated by the legislator to the extent that it can be assumed that the legislature would be in a weighing of interests in which it differs from the same principles would have led to the same result as when the standard referred to was issued. "
For example, the interests are comparable if, from the point of view of the person concerned, it depends on chance whether a relevant standard exists or not (e.g. the time at which an administrative act is dealt with in the case of a continuation declaratory action ).
Legal analogy - legal analogy
According to a widespread arrangement is different laws analogy ( single analogy ) from the right analogy ( total analogy ) - depending on whether an analogy is carried to a rule of law or to an extracted from a plurality of control rules of law principle.
In the case of the legal analogy "the legal consequence of a standard is ... transferred to a comparable case".
In the case of legal analogy, a common legal idea is derived from several legal sentences and applied to similar cases.
There is also the possibility of using a regulation twice in the same way. This occurs when a legal regulation is not directly applicable due to two different aspects. This is e.g. B. necessary in a situation in the administrative process in which a coveted administrative act is necessary prior to the filing of the legal obligation z. B. has done because of time lapse. Section 113 (1) sentence 4 VwGO is used in this situation twice. Section 113 (1) sentence 4 VwGO is generally only applicable to the action for avoidance if the administrative act has been dealt with after the action has been brought. In the case described, however, there is a mandatory action and a settlement before the action is brought and thus requires the double analogy.
Conclusion by analogy in Islamic law
Even the Islamic law knows the instrument of analogy. It is called Qiyās ( Arabic قِيَاس), is the fourth source of Islamic law in Sunni Islam after the Koran , Sunna and scholarly consensus and is still used today as a method for obtaining norms. The rules for qiyās are dealt with in the compendia on Islamic legal theory .
- Example: Sura 17.24 forbids scolding parents for uncleanliness. From this it is concluded that on a similar occasion it is even more forbidden to hit the parents
- Elmar Bund : Legal Logic and Argumentation. 1983.
- Arthur Kaufmann: Analogy and the nature of the matter. 2nd Edition. 1982.
- Thorsten Ingo Schmidt: The analogy in administrative law. In: VerwArch . 97 (2006), pp. 139-164.
- Thomas Regenfus: The »double analogy« - manifestations and requirements , legal worksheets (JA) 2009, 579.
- Markus Würdinger: The ability of norms to be analogous - A methodological study of exceptional regulations and declaratory norms , in: Archive for civilist practice (AcP) 206 (2006), pp. 946–979.
- ↑ Bernd Rüthers : Legal theory. Munich 2010, ISBN 978-3-406-60126-2
- ↑ Reinhold Zippelius , Legal Philosophy, 6th edition, 2011, §§ 18 II, 40 I 3, II
- ↑ See Schwacke, Peter: Juristische Methodik. - 5th edition. - Kohlhammer, Stuttgart 2011, p. 132
- ^ Franz Bydlinski : Fundamentals of legal methodology Vienna 2012, ISBN 978-3-8252-3659-5
- ^ Ingeborguppe : Small School of Legal Thinking Stuttgart 2012, ISBN 978-3-8252-3053-1
- ^ Karl Larenz : Methods of Law in Berlin 1991, ISBN 3-540-52872-5
- ^ Carl Creifelds: Legal dictionary . 21st edition 2014. ISBN 978-3-406-63871-8
- ↑ BAG, judgment of 05.05.2010 - 7 AZR 728/08 - Rn. 26 = NZA 2010, 1025
- ↑ BGH, judgment of 04.12.2014 - III ZR 61/14 - Rn. 9 = NJW 2015, 1176
- ↑ Palandt / Grüneberg, BGB, 77th edition. 2018, introduction, Rn. 48
- ^ Karl Jaroš: Islam. , Böhlau, Vienna a. a. 2012, p. 100