Legal Concepts: Analogy, Retroactivity, and Interpretation

Concept and Types of Analogy

Concept: It is an instrument capable of overcoming the regulatory gap by applying to an unregulated course the solution from a similar or analogous course. Art. 4.1 of the Civil Code states that analogy of the rules shall be used when they do not provide a specific course, but regulate other similar situations where there is an identity of reason.

Classes:

• Legis: Covers a specific legal vacuum by applying another specific rule that gives an extensible solution to the unregulated situation.
• Juris: When unable to find a legal way to regulate a similar course, it resorts to general principles of law that apply in the absence of law or custom, making them subsidiary sources of second grade.

The Principle of Non-Retroactivity and Exceptions

It is a principle in the Civil Code and reinforced by the Constitution, which is a great success for long non-retroactivity of laws. It is connected to the “principle of legal certainty,” as a rule, acts performed under a particular regulatory regime should not be judged under a new law.

Exceptions:

• The Constitution imposes retroactivity only with respect to penalty provisions that are not favorable and those that are restrictive of fundamental rights.
• In other cases, the law may be retroactive with absolute respect for the Constitution and without violating the traditional civil precept.

The Iura Novit Curia

This legal principle means that judges must know the legal system to resolve all issues raised in the exercise of their judicial functions, without requiring that litigants provide the court with information about the rules applicable to the case. This general rule has exceptions when applying rules of foreign law. The duty of judges to know the legal system does not exempt other interpreters of the law from this duty.

The Teleological Interpretation

The interpretation should primarily serve the spirit and purpose of the rule. All elements of interpretation must be obtained by investigating the meaning of the rule. It’s the “underlying purpose” or conflict resolution criterion supported by the standard. The reference to the “purpose” of the rule clearly imposes the need for a teleological interpretation, which serves both the general goals pursued by the rule and the specific purposes achieved by its application to the present case. Therefore, any interpretation of a rule that contradicts the general purpose of the rule must be rejected.

Gaps in the Law

These refer to factual circumstances not covered by legal norms. Laws are not perfect or complete. In the presence of a regulatory vacuum, where no law applies, the legal system provides for the application of custom and general principles of law to fill gaps in the law.

Temporal Effect of Legal Rules: Entry into Force and Withdrawal

Publication: Any rule of law must be published so that its normative mandate is known, at least theoretically, by citizens. The publication facilitates the determination of the date of entry into force.

The entry into force: If the publication date does not coincide with the entry into force, there is a legislative vacatio, a time period in which the force of law is discontinued. The Civil Code provides a period of “vacatio legis” of 20 days, applicable only if not otherwise specified.

The term of validity: Laws tend to be permanent, although the law itself can establish a lifetime. Most often, the force is projected into the future as new legislation is enacted that contradicts or repeals it. This derogation may be total or partial and may take two forms:

• Express: When the new law explicitly states that the old laws are repealed.
• Tacit: When any disposition that opposes the new regulation is repealed.