Analogy and extensive interpretation: notes about those institutes in Brazilian tax law

Abstract

It is well that the Brazilian order establishes a comprehensive planning and to make such a wholeness and self-sufficiency, using mechanisms such as analogy and extensive interpretation. Either of the two categories studied, we found that, by different methods, they seek to create unity, to cohesion, to close the positive law in order to say that all, absolutely all cases are within the range called solution. Thus, under the charge that the judge deems it all disputes that come to their examination by standard belonging to the system, the legal Brazilian system, prescribes two standards of super level: inclusive general rules, applicable to the type as form-of-construction, and the exclusive, in which the type assumed the tabular form. At first, the very concept of class allows inclusion; in the second, the mandatory condition is self-exclusive, welcoming only those specific requirements that there are broken individualy. On that way, both the analog extension (analogy) and the broad interpretation roots in higher standards - general inclusive or exclusive - to give power to, by argumentum a simili or contrary, respectively, to build standard that meets the legal case in concrete. Furthermore, the methods of identification of the type – tabulary form or construction’s form - are directly related to ways of applying the interpretive law: analog or extensive. This analysis is the answer to say (or invalidate) the admissibility that has applied to use of such integrative processes for prescriptive.