Font Size: a A A

Analogy In Criminal Law

Posted on:2012-07-24Degree:MasterType:Thesis
Country:ChinaCandidate:Y L ChenFull Text:PDF
GTID:2216330338462065Subject:Legal theory
Abstract/Summary:PDF Full Text Request
There exists a principle of prohibition of analogy in criminal law. The traditional cognition insists prohibition of analogy. On the other side, the type theory believe that the understanding of legal norms is a process of analogy. Type theory should be introduced. But, in the context of criminal law, in consider of its defects, it should adopt something from traditional cognition.The article includes five parts.The first part is about current situation of theory study and practice, the study of this article and the way of research. By study, we can eliminate misunderstanding to conduct practice. The whole article places extra emphasis on the cognition and analysis of type theory of Arthur Kaufmann. Some revisions are given at last.The second part is about the distinction of use of similar words as analogy and the criterion of analogy of traditional cognition. There is no need to distinguish analogy reasoning, analogy, the application of analogy and some other words like this. Because analogy itself can play the role of theory study. Most scholar think the possible meaning of words should be treated as the criterion of distinction between law-created analogy and other permitting understanding of law. In fact, even though it can not play the role by itself, this cognition should be considered seriously.The third part is mainly about the introduction and analysis of type theory of Kaufmann. This article believes that Kaufmann's theory, because of its large flexibility and role of conducting practice, can largely help us in developing our minds. Of course, any kind of theory has its source, which can not be inquire on and on. Type theory also has its problem of nominalism and realism. Moreover, it faces plenty of criticize because of its openness. This part mainly affirms the reasonableness and importance of it though it admits that this theory has its flaws.The fourth part is about the specific application of type theory. This article considers, on the basis of last part and the knowledge of the character of criminal law, though type theory is opening, it may have small scope than the meaning of words because of its attention of relations between every factor and the core of giving attention to the nature of things. It may revise the scope of possible meaning of words. Meanwhile, for the danger of excessive regulation to erode the rights of civilians, reasonable restriction should be introduced. And the theory of possible meaning of spoken language is claimed to play the role.
Keywords/Search Tags:Analogy, Possible meaning of words, Type theory, Possible meaning of spoken language
PDF Full Text Request
Related items