Gap in law

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Gap in law - other names: legal gap, lacuna (plurar: lacunae or lacunas) and loophole.

Gaps in law are of a different sort. There are distinguished:

• extra legem gap (gap outside the law), called also an uprovided case or casus omissus – arises when a specific case or legal issue is not explicitly dealt with in written law; this the more common (default) kind of a gap in law.

• intra legem gap (gap within the law), called also an interpretational gap or indeterminacy gap – occurs when there is a statutory provision which regulates the case at hand, but this provision is vague or equivocal

• contra legem gap (gap against or contrary to the law) – comes into being when there is a statutory provision which applies to the case at hand but this provision leads in this case to an unwanted outcome

• technical gap, called also an intrinsic gag, constructional gap, gap of passivity, vertical gap or sui generis gap – consists in the lack of a larger part of statutory law which according to law should be enacted (issued), especially such that disenable passing of a judicial or administrative decision or working of the institution which are envisaged by the law.

• gap of conflict or collision, called also a praxeological (teleological) gap, logical gap or gap by contradiction – takes place when two or more statutory provisions contradict each other

In common law (case law) a counterpart of a legal gap is the so-called case of first impression.

Gaps are filled by recourse to analogy (legis and iuris), reasoning from a legal principle(s), an argument a fortiori, an argument a contrario, other kinds of inferences from norms or some other less constrained judicial considerations.

See also

• Loophole
• lacuna

Bibliography

Maciej Koszowski, The Scope of Application of Analogical Reasoning in Statutory Law. American International Journal of Contemporary Research no. 1/2017 (v. 7): 16-34.

References

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