Problem of reasoning per analogiam in civil law
The article deals with a problem of using reasoning per analogiam in Polish civil law. Nevertheless, at fi rst, it was essential to make some general remarks on this most frequently used technique of legal argument. The paper discusses not only the concept of lacuna and the problem of „relevant” similarity as two necessary and suffi cient conditions for the analogical argumentation, but also the method of application of analogy in legal reasoning. However, the article shows both theoretical background of reasoning per analogiam in Polish civil law (analogy „in book”) and analogy „in action”. Many cases from the private law application practice serve as an example for a careful examination of a question under discussion. Among them, noteworthy is to mention about the sanction of defective legal act of legal person (society) or about the application of argumentum a simile in property law. Also some widely held views are challenged in this paper – in the midst of them statement that reasoning by analogy is a tool for petrifi cation of the legal order. It was also the author’s aim to emphasize the inconsistency in judicial opinions on various material aspects – the problem of article 656 of Polish civil code is one of the best examples. Finally, it was vital to mention that the winds of change with regard to the meaning of separation of powers are blowing. As far as some distinguished scholars are concerned, it’s high time to recognize the lawmaking character of a judicial exposition of the existing law. The practice of creative judicial interpretation which is mainly developed due to reasoning per analogiam confi rms the abovementioned statement.
 1-2010 Kabza.pdf | 713 kB |
