METHODOLOGICAL AND THEORETICAL PRINCIPLES OF UNDERSTANDING THE NATURE OF ANALOGY IN LAW

Abstract

The article provides a comprehensive theoretical and methodological analysis of the nature of analogy in law as one of the key mechanisms for overcoming gaps in legal regulation. It is substantiated that in the conditions of constant dynamics of social relations, no legal system can avoid situations when individual legal relations remain outside the scope of direct legislative regulation, which necessitates the use of analogy of law and analogy of law. The logical principles of inference by analogy are revealed, its probabilistic nature and dependence on the degree of similarity of the essential features of the compared legal situations are shown. The relationship between analogy and interpretation of law is analyzed and it is proven that the determining criterion for their distinction is the direction of activity: interpretation establishes the content of an already existing norm, while analogy involves the application of norms or principles to cases not directly provided for by legislation. Special attention is paid to the discussion of the legal nature of analogy, in particular its qualification as a manifestation of judicial law-making. Based on the analysis of the normativity of law and the hierarchy of sources of law, the conclusion about the law-enforcement, not law-making nature of analogy in the domestic legal system is substantiated. It is proved that analogy acts as a tool for implementing law, aimed at ensuring the integrity and stability of the legal order. The peculiarities of the application of analogy in various legal systems, in particular in the Anglo-Saxon and Romano-Germanic traditions, are studied, and the place of analogy in the modern Ukrainian legal system is also determined. It is substantiated that the legitimate application of analogy in Ukraine is possible exclusively within the framework of judicial proceedings in the presence of direct legislative authorization, which follows from the constitutional principle of legality. It is concluded that analogy in law is a necessary but limited tool of legal thinking, which requires clear methodological guidelines and uniform standards of judicial argumentation. Further development of the doctrine of analogy is associated with clarifying the limits of its application, developing criteria for distinguishing it from interpretation, and ensuring compliance with the principles of the rule of law and legal certainty.