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What happens when no clear legal rule applies? In a legal system that aspires to be complete, the law has learned to coexist with normative gaps through the tool of analogical interpretation. But how far can this mechanism go? And what are the risks for those who rely on it in uncertain contexts?
This article explores how legal analogy operates, its boundaries, and its most current applications—from criminal law to liability arising from artificial intelligence. The aim is to understand when it is possible to fill a legal void, and when, instead, a clear legislative response is required.
In the daily operations of entrepreneurs, professionals, and small businesses, it is not uncommon to encounter novel, complex, or simply unforeseen situations. What should be done when no clear legal provision applies? This is not merely a theoretical issue for legal scholars: it can delay decision-making, increase legal exposure, and lead to unexpected litigation. Although legislation is designed to be general and abstract, it does not always keep pace with social, economic, and technological developments. (See also: The new sources of law: who sets the rules in the digital age? – Canella Camaiora).
In the Italian legal system, the guiding principle is that no legal situation should remain unregulated. This foundational assumption implies that every case must find its resolution within the hierarchy of legal sources. However, legal rules are drafted by human beings at specific points in time and are often outpaced by the evolution of the contexts in which businesses operate. Consider, for example, the liability arising from the use of autonomous artificial intelligence systems, or the regulatory framework governing e-commerce.
(See also: “The online presence of companies: from domain names to ‘social commerce’” – Canella Camaiora).
When legislation is absent or ambiguous, those who must apply it—judges, lawyers, or even businesses attempting to self-regulate to avoid penalties—find themselves on precarious ground. There is a risk of inconsistent rulings, increased litigation, and, most critically for businesses, the inability to plan behavior with legal certainty.
This is where the role of the legal interpreter becomes essential. Article 12 of the preliminary provisions to the Italian Civil Code (the so-called preleggi) sets forth the rules for statutory interpretation. When a legal rule is lacking, it invites the interpreter to look at similar cases or, failing that, to the general principles of the legal order. At this point, recourse to analogy becomes both necessary and legitimate.
When the legislature has failed to regulate a specific situation, the legal system does not halt. A critical logical and legal tool is activated: legal analogy. This mechanism allows an existing rule to be applied to a different, yet similar, case based on a shared ratio legis—that is, the underlying purpose or rationale of the rule.
The second paragraph of article 12 of the preleggi makes this explicit: where no specific provision applies, reference should be made to rules governing “similar cases or analogous matters”. And if that is insufficient, one must turn to the general principles of the legal system. In practical terms, this means reasoning by similarity or conceptual proximity. The premise is that—even in the absence of a specific rule—the answer may be found in the principles that uphold the legal order.
Analogy may take two distinct forms. Analogia legis (statutory analogy) involves applying a rule intended for a specific case to another functionally similar case. For instance, the rules applicable to a typical contract may be extended to an atypical one, provided they share the same functional structure. Analogia iuris (systemic analogy), on the other hand, arises when no analogous rule exists, requiring the interpreter to rely directly on general legal principles—such as contractual freedom, good faith, and the protection of legitimate expectations.
This method is not a loophole but a way to ensure consistency, continuity, and legal predictability. In a complex and volatile system, analogy helps prevent legal gaps from becoming juridical black holes. It also avoids unjust disparities in the treatment of similar situations, simply because one is expressly regulated and the other is not.
For businesses, this has a tangible implication: even in the absence of clear statutory guidance, they are not operating in a legal vacuum. Analogical interpretation allows for reasoned, law-rooted solutions that can guide business decisions, contracts, and operations.
Despite its fundamental role in maintaining systemic coherence, analogy cannot be employed indiscriminately. There are areas of the legal system in which the legislature has deliberately drawn firm boundaries to safeguard essential principles, such as legality and the foreseeability of sanctions.
In criminal law, for instance, analogy is strictly prohibited where it would operate in malam partem—to the detriment of the defendant. This is mandated by article 25, paragraph 2, of the Italian constitution, which provides that no one may be punished except pursuant to a law in force at the time of the alleged offense. This prohibition guards against creative or arbitrary judicial interpretations that might expand criminal liability beyond what the law expressly provides.
In civil law, by contrast, analogy is generally permitted, but it is not without risk. Particular caution is warranted in rapidly evolving sectors, where the absence of explicit regulation might tempt interpreters to extend the scope of existing provisions. Without a clear framework, there is a danger of imposing obligations or liabilities not intended by the legislature, thereby upsetting normative balances.
For this reason, although legitimate, analogy must be applied methodically and with prudence, always in consideration of the broader legal context. It is a delicate interpretive exercise that must not result in the judiciary substituting the legislature. In today’s climate of technological acceleration, the temptation to resort to analogy is growing. But is it truly appropriate for addressing completely unforeseen phenomena?
The technology sector is the clearest example of the limits of analogy. Artificial intelligence, in particular, challenges traditional legal categories. Autonomous systems can generate content, make decisions, and interact with third parties—often in the absence of any specific regulatory framework. In such cases, analogies to existing provisions—such as articles 2047 or 2050 of the Italian Civil Code—may offer partial guidance, but they fall short of providing a stable, predictable, and coherent legal regime.
Our firm has addressed these issues critically. In “Has the AI act killed copyright”, we highlighted how, even with the introduction of the AI act—the new European regulation on artificial intelligence—broad grey areas remain regarding liability, generated content, and infringed rights. It is clear that the future cannot be governed solely through analogical tools conceived for the past.
In “Tecnomachia: from the myth of digital freedom to technological sovereignty”, we also addressed a broader issue: the role of law as a guiding and safeguarding force for innovation. It is no longer enough to chase technology; the legal system must develop the normative capacity to anticipate and design regulatory frameworks before gaps arise.
In conclusion, while analogy may still serve an integrative function, it cannot replace legal provisions designed for today’s challenges. Businesses, professionals, and citizens need clear, stable rules—not unstable or forced interpretative solutions. That is why we believe the real challenge for law today is to develop new normative tools capable of responding to change—rather than adapting outdated rules born in entirely different contexts.
