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Аналогия права vs. аналогия закона

English translation: analogy in law v analogy in statutes

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07:04 Aug 29, 2008
Russian to English translations [PRO]
Law/Patents - Law (general)
Russian term or phrase: Аналогия права vs. аналогия закона
Как было бы правильнее указать эту пару на английском:
analogy of law - analogy of statute
analogy to law - analogy to statute
analogy of jus - analogy of lex ???
Ilyanna
Local time: 05:22
English translation:analogy in law v analogy in statutes
Explanation:
European Cooperation Between Tax, Customs and Judicial ... - Результат из Google Книгиавтор(ы): John A. E. Vervaele, André Klip - 2002 - Law - Количество страниц: 302
Parts of the Tax Ordinance are declared applicable by analogy in statutes of the individual states (Lander) to state taxes: Hiibschmann/Hepp/Spitaler § 1 AO ...
books.google.com.ua/books?isbn=9041117474...


In law, analogy is used to resolve issues on which there is no previous authority. A distinction has to be made between analogous reasoning from written law and analogy to precedent case law.
In civil law systems, where the preeminent source of law is legal codes and statutes, a lacuna (a gap) arises when a specific issue is not explicitly dealt with in written law. Judges will try to identify a provision whose purpose applies to the case at hand. That process can reach a high degree of sophistication, as judges sometimes not only look at a specific provision to fill lacunae (gaps), but at several provisions (from which an underlying purpose can be inferred) or at general principles of the law to identify the legislator's value judgement from which the analogy is drawn. Besides the not very frequent filling of lacunae, analogy is very commonly used between different provisions in order to achieve substantial coherence. Analogy from previous judicial decisions is also common, although these decisions are not binding authorities.

http://en.wikipedia.org/wiki/Analogy


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Note added at 1 hr (2008-08-29 08:59:41 GMT)
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or
ANALOGY(ANALOGIES) IN LAW v ANALOGIES WITH STATUTES

Argument by Analogy In Europian Law
analogies with statutes
...... legitimate place for reasoning by ANALOGY WITH STATUTES ...
journals.cambridge.org/production/action/cjoGetFulltext?fulltextid=1542


--------------------------------------------------
Note added at 1 hr (2008-08-29 09:01:19 GMT)
--------------------------------------------------

Judicial Reasoning by Analogy with Statutes:
lr.oxfordjournals.org/cgi/content/citation/14/2/84


--------------------------------------------------
Note added at 1 hr (2008-08-29 09:04:08 GMT)
--------------------------------------------------

SSRN-Teaching and Using Analogy in Law by Dan Hunter.
papers.ssrn.com/sol3/papers.cfm?abstract_id=1089669 -

Analogy and precedent in law
among many others, have pronounced on analogy in law. ...
papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID239739_code000907510.pdf?abstractid=239739&mirid=1

Fragments of Legal Epistemology, Hermeneutics and Linguistics THE FUNCTION OF ANALOGY IN LAW: RETURN TO KANT AND W1TTGENSTEIN JACQUES LENOBLE From the very ...
books.google.com.ua/books?isbn=0792310659...

Selected response from:

Serhiy Tkachuk
Ukraine
Local time: 05:22
Grading comment
Спасибо!
4 KudoZ points were awarded for this answer

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Summary of answers provided
4analogy in law v analogy in statutes
Serhiy Tkachuk


  

Answers


1 hr   confidence: Answerer confidence 4/5Answerer confidence 4/5
analogy in law v analogy in statutes


Explanation:
European Cooperation Between Tax, Customs and Judicial ... - Результат из Google Книгиавтор(ы): John A. E. Vervaele, André Klip - 2002 - Law - Количество страниц: 302
Parts of the Tax Ordinance are declared applicable by analogy in statutes of the individual states (Lander) to state taxes: Hiibschmann/Hepp/Spitaler § 1 AO ...
books.google.com.ua/books?isbn=9041117474...


In law, analogy is used to resolve issues on which there is no previous authority. A distinction has to be made between analogous reasoning from written law and analogy to precedent case law.
In civil law systems, where the preeminent source of law is legal codes and statutes, a lacuna (a gap) arises when a specific issue is not explicitly dealt with in written law. Judges will try to identify a provision whose purpose applies to the case at hand. That process can reach a high degree of sophistication, as judges sometimes not only look at a specific provision to fill lacunae (gaps), but at several provisions (from which an underlying purpose can be inferred) or at general principles of the law to identify the legislator's value judgement from which the analogy is drawn. Besides the not very frequent filling of lacunae, analogy is very commonly used between different provisions in order to achieve substantial coherence. Analogy from previous judicial decisions is also common, although these decisions are not binding authorities.

http://en.wikipedia.org/wiki/Analogy


--------------------------------------------------
Note added at 1 hr (2008-08-29 08:59:41 GMT)
--------------------------------------------------

or
ANALOGY(ANALOGIES) IN LAW v ANALOGIES WITH STATUTES

Argument by Analogy In Europian Law
analogies with statutes
...... legitimate place for reasoning by ANALOGY WITH STATUTES ...
journals.cambridge.org/production/action/cjoGetFulltext?fulltextid=1542


--------------------------------------------------
Note added at 1 hr (2008-08-29 09:01:19 GMT)
--------------------------------------------------

Judicial Reasoning by Analogy with Statutes:
lr.oxfordjournals.org/cgi/content/citation/14/2/84


--------------------------------------------------
Note added at 1 hr (2008-08-29 09:04:08 GMT)
--------------------------------------------------

SSRN-Teaching and Using Analogy in Law by Dan Hunter.
papers.ssrn.com/sol3/papers.cfm?abstract_id=1089669 -

Analogy and precedent in law
among many others, have pronounced on analogy in law. ...
papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID239739_code000907510.pdf?abstractid=239739&mirid=1

Fragments of Legal Epistemology, Hermeneutics and Linguistics THE FUNCTION OF ANALOGY IN LAW: RETURN TO KANT AND W1TTGENSTEIN JACQUES LENOBLE From the very ...
books.google.com.ua/books?isbn=0792310659...



Serhiy Tkachuk
Ukraine
Local time: 05:22
Specializes in field
Native speaker of: Native in UkrainianUkrainian, Native in RussianRussian
PRO pts in category: 175
Grading comment
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