Baltic Journal of Economic Studies 117 Vol. 11 No. 3, 2025 This is an Open Access article, distributed under the terms of the Creative Commons Attribution CC BY 4.0 1 National University “Odesa Law Academy”, Ukraine (corresponding author) E-mail: zavalniuk.serhii@gmail.com ORCID: https://orcid.org/0000-0002-3146-0216 2 National University “Odesa Law Academy”, Ukraine E-mail: zavalniukvv@gmail.com ORCID: https://orcid.org/0000-0002-1057-3852 3 National University “Odesa Law Academy”, Ukraine Email: zavalniuk.iryna.v@gmail.com ORCID: https://orcid.org/0009-0006-6259-9612 DOI: https://doi.org/10.30525/2256-0742/2025-11-3-117-123 THE ANALOGY OF STATUTE AND THE ANALOGY OF LAW AS DOCTRINAL INSTRUMENTS FOR LEGAL RESPONSE TO ECONOMIC CHALLENGES Serhii Zavalniuk1, Volodymyr Zavalniuk2, Iryna Zavalniuk3 Abstract. Ukraine's contemporary legal system is undergoing a period of significant transformation, which necessitates not only a robust and stable legal framework, but also a flexible doctrinal apparatus. This is especially relevant in the face of economic challenges caused by global crises, war, sanctions, rapid digitalisation and the emergence of new forms of economic activity. The analogy of statute (analogy legis) and the analogy of law (analogy iuris) hold a distinct place among the tools for overcoming legal gaps in the economic sphere. In the context of the global trend of expanding the scope of judicial discretion, the question of the admissibility and methodology of analogies is becoming increasingly critical. The challenges confronting Ukraine require the creation of a high-quality regulatory framework and the development of new conceptual approaches aimed at ensuring systemic and structural improvement of the legal system. In this process, doctrinal instruments such as the analogy of statute and the analogy of law play a crucial role, particularly under conditions of economic transformation. The article examines the analogy of statute and analogy of law as key doctrinal instruments capable of providing an effective legal response to the latest economic challenges. It examines the use of analogy in the legal regulation of situations arising from economic instability, market digitalisation, the introduction of financial innovations, and the increasing complexity of business behavior. The author demonstrates the appropriateness of using analogy to fill legal gaps, especially in the context of novel or atypical economic circumstances. This research focuses on the legal nature of the analogy of statute and the analogy of law as doctrinal tools for overcoming legal gaps. The author provides a reasoned argument in support of their significance and outlines specific proposals for their proper application within legal regulation. The relevance of the topic is determined by two factors. Firstly, there is a need for theoretical development in this field. Secondly, there is a practical interest in identifying and proposing specific legal measures. These measures are intended to ensure that legal entities comply with the rules of application of analogy of statute and analogy of law in legal regulation. The subject. The subject matter of this study is the concept of analogy of statute and analogy of law, which includes the definition of its concept, essence, place in the system of law, correlation with related legal categories, legal and technical bases and limits of application. The research also explores the admissibility limits of applying legal analogy and presents various scholarly approaches to the definition of legal gaps. Methodology. The methodological foundation of this research is the general scientific dialectical method of cognition. This approach made it possible to examine the object of study in its historical variability, to explore diverse scholarly perspectives on the subject matter, and to analyse the practical application of analogies in legal contexts. To achieve the objectives set in this study, universal scientific methods were employed. The formal-logical method was used to formulate the concept of the analogy of law, as well as the legal and technical rationale for its application. The employment of the systemic-structural method facilitated the delineation of the institute of Baltic Journal of Economic Studies 118 Vol. 11 No. 3, 2025 1. Introduction It is imperative to acknowledge the significance of stability, efficiency and integrity in the context of the legal system, as these elements are indispensable for ensuring its optimal development and effective functioning. Notwithstanding the efforts of the legislator, the legal system frequently encounters circumstances in which a particular life phenomenon remains unregulated. Consequently, the issue of gaps is not a recent development within the domain of legal science. The existence of gaps in legislation is a perennial problem in the field of lawmaking, irrespective of the geographical location or political system. The issue of filling gaps in legislation is of practical importance, but also of profound doctrinal significance. The primary methodologies employed in order to surmount legal lacunae are analogy of statute and analogy of law. These doctrinal tools enable law enforcers to adapt extant legal mechanisms to new or atypical situations without compromising the integrity of the legal system. As the German legal scholar K. Lahrenz rightly observed: "It is imperative that the law be adaptable, akin to the fluidity of life, while concurrently maintaining a degree of rigidity, akin to the stability of morality. It is the analogy that provides this balance" (Larenz, 1995). The use of doctrinal instruments such as the analogy of statute and the analogy of law has both theoretical and practical dimensions. These forms of analogy are examined within the general theory of law, as demonstrated in the works of scholars such as O. Kolotova, M. Kozyubra, and Y. Matai are of particular note. In the civil law of Ukraine, the issue of analogy of law and law has been addressed by A. Dovgert, A. Drishliuk, N. Kuznetsova, R. Maidanyk, V. Orzikh, I. Proboski-Fateeva, S. Pogrebnyak, O. Pechyonyi, Y. Kharytonov and others. Furthermore, S. Klim, S. Zavalniuk, and D. Yasynok successfully defended their dissertations. 2. The essence of Legal Analogies, the Nature and Methods of their Application Prior to the analysis of the analogy of statute and the analogy of law as doctrinal tools for overcoming legal gaps, it is necessary to clarify the essence of legal analogies, their legal nature, and the methodology of their application. Within the general theory of law, both the analogy of statute and the analogy of law are considered mechanisms for addressing legislative gaps by either eliminating or bridging them. As the eminent French lawyer Jean-Claude Pierand observes, analogy's position within the legal system. Moreover, the study involved the use of specialised legal methods, including the comparative legal method, which enabled the examination of forms of analogy applied in different legal systems, and the method of systematic interpretation, which contributed to identifying the specific features of applying analogy to particular legal relations. The purpose of this article is twofold: firstly, to clarify the nature of analogy of statute and analogy of law as doctrinal tools for addressing legal gaps; and secondly, to identify the current risks and challenges associated with the use of analogies. The results. The conclusions are of particular significance insofar as they establish a comprehensive perspective on the content of analogy of law and its function as a doctrinal instrument for addressing lacunae within the legal system. Furthermore, they determine the role of analogy of law within the broader framework of law and legal technique. In addition to this, the conclusions identify contemporary challenges related to the utilisation of analogy. The results of the study provide a foundation for further research into the methods by which to bridge the identified gaps. Conclusion. In the field of legal science, the terms "analogy of statute" and "analogy of law" are collectively referred to as "legal analogies". The relationship between analogy of statute and analogy of law is not a purely theoretical issue. A correct understanding of these doctrinal tools is essential for making lawful and well-reasoned decisions in cases where a legal gap exists. This study has demonstrated that, under modern conditions, the presence of gaps in legislation is an inherent characteristic of law itself. The analogy of statute and the analogy of law should therefore be regarded as doctrinal instruments for overcoming such gaps within the legal system. However, the views of contemporary Ukrainian scholars on the definition of the term "legal gaps" remain diverse. The utilisation of legal analogy as a method of addressing legal lacunae incorporates a degree of creativity, whilst simultaneously ensuring that law enforcement does not evolve into rulemaking. Keywords: law doctrine, analogy of statute, analogy of law, gap, legal gaps, gaps of law, economic regulation, financial regulation, digital law. JEL Classification: K10, K20, O33 Baltic Journal of Economic Studies 119 Vol. 11 No. 3, 2025 "Analogy is not a circumvention of the law, but its reasonable extension in cases where the letter is silent but the spirit speaks" ( Jean-Claude Pierand,1995). At the doctrinal level, the opinion has been expressed that legal analogies can be utilised in order to overcome legislative gaps (Matai, 2018). Kostruba noted that analogy of statute and analogy of law, which are typical only for private law branches of law, can be an effective way to convalesce (improve) both the mechanism of law enforcement and the entire mechanism of legal regulation of property relations. This legal instrument enables the modification of the most analogous behavioural paradigm codified within the legal framework of a specific branch of law to the prevailing circumstances, thereby facilitating an assessment of its ramifications in relation to the paradigm enshrined within the legal code. Analogy of statute and analogy of law have been shown to supplement the factual elements of the legal termination mechanism with legal ones (legal provision, legal relationship, legal side of the legal fact terminating the right, legal consequence provided for by the legal provision) and thus render the mechanism of legal termination viable and effective (Kostruba, 2012). The limits of admissibility of the institute of analogy should be understood as a set of aspects, criteria and limitations of the gap-bridging function. It is proposed that this will allow for the most accurate description of the gaps in legal regulation that can be overcome by analogy of law or analogy of law in a particular legal system in a particular period of its development (Kaptsova, 2021). Concurrently, M. Kozyubra observes that the situation is more intricate in the context of analogy of law, which is typically delineated as a solution to a case (in instances of lacunae in legislation and the absence of a congruent rule of law) predicated on the tenets of the pertinent branch of law or the general principles of law in general. In this interpretation, as noted by certain authors during the Soviet period, the analogy of law does not constitute an analogy in its own right, i.e. an analogy in the literal sense of the word. It is imperative to acknowledge the court's proactive role in lawmaking, particularly in situations where it is tasked with addressing lacunae in existing legislation and regulatory frameworks. It is a commonly held view that gaps in legal regulation are bridged with the help of analogy, the possibility of which is provided for in a number of Ukrainian codes (Article 8 of the Civil Code of Ukraine, Article 10 of the Family Code of Ukraine, Article 9 of the Civil Procedure Code of Ukraine, Article 9 of the Code of Administrative Procedure of Ukraine, etc.). Analogy (even analogy of statute, not to mention analogy of law, which will be discussed below) is not a purely mechanical procedure; that is to say, it is not limited to searching in the relevant branch of legislation, and sometimes outside the branch (the so-called inter-branch analogy) for a rule of law regulating the most similar social relations, and formally and logically bringing the situation under consideration by the court, which is not regulated by law (other normative act), under it. This process is inherently creative, entailing the analysis of a series of prerequisites – including moral, political and economic factors – that exert an influence on the situation under consideration by the court. However, it is important to note that these prerequisites are not encompassed within the domain of positive law. It is only in such circumstances that a conclusion can be drawn that the true composition of relations governed by legislation is analogous to the relations that are the subject of court proceedings but are not subject to legal regulation. In other words, in addition to external similarity, it is necessary to state that the cases giving rise to the analogy are value comparable (equal). In essence, this constitutes the court's establishment of an analogous rule, albeit one that differs from the original. This new rule serves as the foundation upon which the court's decision is made. This ruling has the potential to set a precedent for analogous cases in the future (Kozyubra, 2016). It can be posited that the analogy of law and law is a legal phenomenon that possesses both substantive and procedural content. In the event that the analogy of law to regulate civil relations is rendered impossible, civil relations are subject to regulation in accordance with the general principles of civil law (analogy of law). The court employs the concepts of legal and equitable analogy when it perceives a necessity for the regulation of particular relationships that are not addressed by existing legislation. This results in a lacuna within the regulatory framework. It is evident that these conclusions are applicable to both substantive and procedural law. T. Kaptsova identifies the following criteria of restrictions as being worthy of particular attention, these criteria will facilitate the determination of the limits of admissibility of the institute of analogy in the legal system of Ukraine at the current stage of its development: 1) the establishment of a legal gap is considered a prerequisite for the admissibility of legal analogy; 2) the range of subjects of the institute of analogy of statute and analogy of lawmust also be determined; 3) in addition, the forms of implementation of law in which the use of analogy is possible must be determined; 4) finally, the areas of social relations in which analogy can be applied must be determined (Kaptsova, 2021). According to M. Yasynok, in order to overcome legislative gaps, the legislator establishes its own procedural and legal algorithm of sequences, which is enshrined in part 9 of Article 10 of the Code of Civil Baltic Journal of Economic Studies 120 Vol. 11 No. 3, 2025 Procedure of Ukraine. In this regard, the legislator initially proposes a so-called general approach to overcoming legislative gaps, stating: "if the disputed relations are not regulated by law, the court applies the law regulating similar relations (analogy of law), and in the absence of such a law, the court proceeds from the general principles of law (analogy of law)" (Yasynok, 2023). Article 11(10) of the Code of Commercial Procedure of Ukraine stipulates that 'if the disputed relations are not regulated by law and there is no custom of business turnover that can be applied to them, the court shall apply the law governing similar relations (analogy of law), and in the absence of such a law, the court shall proceed from the general principles and content of legislation (analogy of law)' (Code of Commercial Procedure of Ukraine). Concurrently, part 3 of Article 4 of the Commercial Code of Ukraine stipulates that the rules of the CCU shall apply to commercial relations arising from merchant shipping and not regulated by the Merchant Shipping Code of Ukraine. That is to say, part 3 of Article 4 of the CCU expressly limits the application of the analogy of law to a certain group of commercial relations. Social relations, particularly in the domain of property relations, are subject to constant evolution and enhancement. This dynamic process gives rise to the recurrent emergence of novel economic relations and obligations. In such circumstances, it is quite understandable that the legislator is not always able to respond promptly to new developments in society. It is evident that there are numerous instances within the domain of court practice in which the principles of civil and commercial substantive law have been applied by analogy. 3. A Legal Gap as a Prerequisite for the Application of Legal Analogy: Economic Emphasis In relation to the question of scholars' opinions on the issue of gaps in law, it should be noted that such gaps, as a specific legal phenomenon, are inherent not only in Ukraine, but also in other countries and international law. Ukrainian scholarship has evolved to adopt divergent perspectives on the subject of gaps, the assessment of their role and impact, and the strategies for their mitigation. In the opinion of the scholar T. Shevchenko, the presence of gaps is an inevitable occurrence that cannot be precluded (Shevchenko, 2013). In the course of his research, H. Berchenko examined the issue of lacunae in the Constitution of Ukraine. He concluded that the concept of such lacunae is a kind of «terra incognita» in the scientific field. The perception of any concept of constitutional gaps, or its denial, will be perceived ambiguously, given the different doctrinal approaches to understanding the constitution and gaps in law (Berchenko, 2020). In their article, T. Chepulchenko and S. Nevechera analyse the phenomenon of gaps in law and argue that it is a consequence of the extremely high pace of social relations, rulemaking, and imperfect legal technique (Chepulchenko, Nevechera, 2020). S. Pohrebniak's analysis of legislative gaps is characterised by a focus on their general understanding, with the term 'an empty, unfilled place' being employed to denote the absence of relevant legislation. This, in turn, results in law enforcement entities being unable to reach decisions in specific cases due to the lack of applicable legal rules. Furthermore, S. Pogrebnyak advances the hypothesis that, in the majority of cases, the identification of a lacuna in legislation will result in both a statement and a gap in law, taking into account the current state of the system of Ukrainian law sources and the proportion of legislation in it (Pogrebnyak, 2013). According to V. Orzikh, the emergence of gaps can be attributed to the legislator's failure to keep pace with the evolution of social relations, which, by the time a disputable situation arises, have already evolved into legal relations. The resolution of the issue of the existence of gaps in legislation is contingent not only on the acknowledgement of this fact, but also on the capacity of law enforcement agencies to overcome this problem. The absence of a rule that directly regulates the disputed legal relationship indicates a gap in the law. In the context of the positivist approach to law, the concept of a gap in law is only able to exist within that particular framework. In the context of the natural law approach to law, analogy of law is understood to function as a technical and legal technique for the removal of defects in legislative regulation and the source of law (Orzykh, 2019). At the same time, the current realities in Ukraine have objectively contributed to the emergence of "legal voids". The Government of Ukraine, the World Bank Group, the European Commission, and the United Nations have published the results of the third updated Rapid Damage and Needs Assessment (RDNA3). As of December 31, 2023, the total estimated cost of Ukraine’s recovery and reconstruction over the next decade amounts to USD 486 billion. This figure exceeds the previous estimate made in February 2023, which stood at USD 411 billion. The analysis covers the damage sustained by Ukraine from February 24, 2022, through the end of December 2023, revealing that direct damage has reached nearly USD 152 billion. RDNA3 provides Ukraine with an up-to-date and comprehensive analysis of losses and needs, enabling effective prioritization, optimal resource allocation, and achievement of defined recovery goals. The conclusions of this assessment will support the implementation Baltic Journal of Economic Studies 121 Vol. 11 No. 3, 2025 of the Ukraine Facility, approved by the European Parliament and the Council of the EU, which allocates EUR 50 billion over the next four years. The primary source of funding for Ukraine’s recovery is expected to be the confiscation of frozen Russian assets. Additionally, Ukraine aims to attract foreign investment without waiting for the war to end (RDNA3, 2022). These economic challenges demand attention not only from the perspective of economic analysis and forecasting but also from the standpoint of legal regulation. Despite the impressive resilience of the Ukrainian economy under wartime conditions, the country requires continuous international support, effective inflation control, and targeted investments in post-war reconstruction. According to forecasts by the KSE Institute, the IMF, and other analytical institutions, the active phase of the war may conclude by the end of 2025. Such a scenario would require robust legal monitoring and timely legislative responses. For Ukraine to achieve successful recovery and long-term economic growth, the country will need not only international support, investment, and inflation stabilization, but also reforms in the labor and energy sectors. These measures are crucial for restructuring and further development. In this context, the issue of aligning national legislation with current demands becomes a pressing challenge. The existence of «legal voids» is an objective phenomenon under such conditions, while overcoming them is a matter of the future (Ukraine Macroeconomic Handbook, 2025). In this regard, D. Yasynok posits in his dissertation research that the concept of "legal void" in law is more precise than the concept of "legislative gap", since it immediately provides a comprehensive depiction of the existence of an unsettled law in a particular law and proposes to amalgamate the two terms "legal void" and "legislative gap", noting that he employs the term "legislative gaps (voids)" (Yasynok, 2023). Following an in-depth analysis of the issue of gaps in law, the Constitutional Court of Ukraine has expressed a somewhat controversial position in its national report. The court has concluded that gaps in law and gaps in legislation are actually substantially similar concepts. Therefore, when determining which concept should be used, the court has determined that the criteria of more frequent application should be given greater focus, thus giving preference to gaps in legislation (Constitutional Court of Ukraine). This notion is further elaborated by M. Yasynok, who asserts that all scholars concur on the interpretation of the procedural and legal essence of the concept of 'legislative gap'. It is important to note that this is not an opportunity for the court to regulate social relations that have become controversial due to the absence of a specific rule of law or their substantive inaccuracy or incompleteness. This indicates the absence of the full or partial will of the state. This is attributable to the inherent characteristic of legislation, which is to contain legislative gaps by its very nature, since it is impossible to achieve the infinite and its perfection. It is evident that legislative gaps in law represent the inherent legal void that exists between two provisions within the same branch of law, or within its various sections. In such instances, there is an unregulated segment or a specific domain of social relations. When such disputes fall within these gaps, there arises an objective necessity to bridge these legislative lacunae by establishing pertinent regulations. The court's role in this process is to fill this void, thereby ensuring legal certainty in these contested relations. (Yasynok, 2023). In their studies, E. Kharytonov and O. Kharytonova observe that, from the very essence of private law as a supranational (basic) system of law and civil law of Ukraine as the embodiment of private law at the national level, it can be concluded that it is incorrect to speak of "gaps in law" in relation to them, since there is no "incompleteness of legal regulation" in this context: participants to civil relations have the right to establish rules of conduct by their contract (unless prohibited by law). It can be assumed that if they do not do so, then obviously there is no need to regulate certain relations. In lieu of the aforementioned, the present discussion should centre upon the concept of "gaps in civil law". This term is understood to denote a hierarchically ordered system of normative acts, predicated upon certain principles, which in turn regulate civil relations (Kharitonov, Kharitonova, 2015). It is this author's opinion that if it is impossible to use legal analogies as a logical technique in the law interpretation process, legislative gaps are overcome by judicial lawmaking. In such cases, this is not just desirable, but an objective necessity. In turn, M. Yasynok calls the law interpretation and lawmaking processes interpenetrating procedural and legal substances which pave the way for final legal certainty in matters of vagueness, contradiction or casuistry of the content of legal provisions. This makes it possible to obtain a new legal reality in the settlement of disputed relations (Yasynok, 2023). 4. Conclusion In conclusion, judicial analogy can be defined as the capacity to conceptualise in legal terms, extending beyond the literal interpretation of legislation. In the context of economic instability, it functions as a flexible legal response mechanism, capable of adapting the law to new financial realities. The study posits that the institute of analogy is one of the most time-honoured and efficacious mechanisms for overcoming uncertainty in legislation and law. The concept of legal analogies, which encompasses the notion of analogy in law, is a fundamental tenet Baltic Journal of Economic Studies 122 Vol. 11 No. 3, 2025 in the field of legal science. In the Ukrainian legal system, analogy of statute and analogy of law should be considered as a doctrinal institution in the mechanism of legal regulation. The relationship between analogy of statute and analogy of law is not a purely theoretical issue. The comprehension of these doctrinal instruments is imperative for the formulation of a lawful and well-founded decision in instances where there is a lacuna in the law of the gap. The primary function of this doctrinal instrument is to bridge the aforementioned lacuna in the law, thereby ensuring compliance between the law as a dynamic system and the evolution of social relations, in addition to doctrinal instruments of legal response to economic challenges. The utilisation of legal analogy as a mechanism for addressing legal lacunae incorporates a degree of creative elements, yet it does not transform law enforcement into rulemaking (Resolution of the Grand Chamber of the Supreme Court). In relation to the extant scholarly opinions on the issue of gaps in law, it should be noted that such gaps, as a specific legal phenomenon, are inherent not only in Ukraine, but also in other countries and international law. It is evident that Ukrainian scholarship has evolved to adopt markedly divergent approaches and assessments. It can be posited that lacunae in the law represent a negative legal phenomenon, the existence of which is an objective inevitability, and which are inherent in any system of legislation. These lacunae are interconnected and exist in a complex nexus comprising the principles of law, the legislator's policy, professional and ordinary legal consciousness, and judicial practice. It is evident that lacunae in legislation are an unavoidable consequence of the dynamism inherent in economic life and the limited capacity of the legislator to anticipate all potential scenarios. In such circumstances, the doctrinal institute of legal analogies is an important tool not only of a legal but also of an economic nature, which ensures flexible and at the same time stable regulation of social relations and contributes to sustainable economic development of Ukraine. Author contributions: S. Z. developed the original idea, abstracted and analyzed data, wrote the manuscript, and is a guarantor. V. 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Available at: https://surli.cc/nbbwrx Received on: 14th of May, 2025 Accepted on: 25th of June, 2025 Published on: 24th of July, 2025