Analogy In Modern English Criminal Justice

It’s a worldwide phenomenon that what is regulated by law is lagged behind what is going on in the society, entailing the common path of "handling similar situations in similar ways" in trial in various countries. This dissertation will compare analogy in18th Century England and Ch-ing Dynasty, aiming to measure the differences in reasoning and the causes of such differences.The "Introduction" refutes an ossified cliche of equating analogy with the contrary to "nulla poena sine lege". Also the significance of the topic is also illuminated in this part, viz., the reason why analogy in China and in England are chosen to compare, and why the time period is18th Century.Chapter One introduces in detail different backgrounds of Ch-ing Dynasty and England. Based on the research regarding the way judgment employs analogy to revise the existing law and precedents, a conclusion is arrived that neither China nor England has developed a strict practice of "nulla poena sine lege" back then.Chapter Two depicts the legal skills utilized by analogy. Summarizing main types of analogy, this chapter specifies the correspondence between analogy in both countries in18th Century and the modern terms of "analogical reasoning" as well as "extensive explanation". A basic instrument of analogy in England is "distinguishing technique", the absence of which in China has made its analogy largely oriented from facts instead of rules.Chapter Three discusses the purposes of analogy in China and in England. Neither of them aimed at creating new counts, nor do them work for the exclusive purpose of incriminating defendants. The primary objective of analogy in England is to summarize, refine and consolidate rules in the regulatory regime, no matter how twisted the process used to be occasionally, and unpersuasive the rules were under certain circumstances. In contrast, Chinese type of analogy is targeted at the balances and correspondence among the ethics standards, the severity of malpractice and the penalty. The "Epilogue" briefly discusses some under-lying causes for such differences from the perspective of legal education and the relationships of legislative power and judicial power in both countries.