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Dalhousie Law Journal

Keywords

Criminal Laws, Principle, Analogy, Sino-Soviet, substantive criminal law, conviction, accused, defined criminal behavior

Abstract

"Analogy" is a principle of substantive criminal law which permits the conviction of an accused despite the absence of any defined criminal behavior.' If the actions of the accused are perceived to be inimical to the socio-political order then he may be found guilty of a defined crime which prohibits analogous behavior. Analogy may also be employed in a more restrained fashion as a principle of sentencing law. If the accused has committed a defined crime which is now perceived to be more deleterious his punishment may exceed the maximum legislatively mandated sentence. Analogy is, therefore, one method of defining and punishing acts which are perceived to be iniquitous. In this application, analogy is qualitatively distinguished from liberal statutory interpretation, 2 and it frequently includes or accompanies the retroactive application of law. The principle of analogy is neither the product of twentieth century jurisprudence, 3 nor is its application confined to regimes which Westerners characterize as totalitarian. 4 However, it was employed until 1958 in the Soviet Union and it is still in use in the People's Republic of China. Our focus will be primarily on these modern applications.

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Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

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