Legal gap

Legal gap – other names: lacuna (plurar: lacunae or lacunas) and loophole. This legal term pertains to a situation when there is lack of law or lack of pertinent (adequate) law that can be applied to the case at hand.

Legal gaps 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
• 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 gap, 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
• de lege ferenda gap, called also a gap of demand or a postulative gap – is a gap that cannot be filled in another way than by an amendment to a statute made by the legislature.

The other kinds of legal gaps are: a) axiological gaps (evaluative, subjective gaps), b) real gaps (objective gaps), c) fake gaps (seeming gaps), d) evolutionary gaps. The first are dependent on evaluation on the part of those who assert that they occur. The second exist in a way that is independent of such evaluation. The third are the result of misconception and in fact are not gaps. The four are gaps that have come into being due to recent changes in the life of society (its cultural, political, economical and moral background) or due to the technological advance and growth of knowledge and wisdom.

In common law (case law) a counterpart of a legal gap is the so-called case of first impression, i.e. a case for which no binding judicial precedent is provided.

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

See also

• analogy
• argumentum a fortiori
• argumentum a contrario

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.
• Maciej Koszowski (2019). Analogical Reasoning in Law, Cambridge Scholars Publishing: Newcastle upon Tyne 2019, ISBN-13: 978-1-5275-2232-9, ISBN-10: 1-5275-2232-6.

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