Publication details
Theory of Gaps in Contemporary Legal Thought
| Authors | |
|---|---|
| Year of publication | 2013 |
| Type | Appeared in Conference without Proceedings |
| MU Faculty or unit | |
| Citation | |
| Description | This contribution deals with the theory of gaps which has become the pertinent part of the contemporary legal methodology. The scope of this contribution is to show the brief overview of essential ideas that have been developed by the theory of gaps and present critical opinions on that issue in recent European legal methodology. More specifically, the main attention shall be paid to distinguish the different significance of the concept of gaps in judicial and constitutional discourses. In adjudication, the model of gap represents a teleological instrument which is believed to offer some help to an interpret of law (judge, attorney, administrative clerk etc.) to find the way how to apply the law in a hard (non-easy) case. From that point of view, the emphasis is put upon the question whether the model of gaps is for legal practice as necessary and fruitful as some authors assert. Latest works in legal methodology emphasise that model of gaps is an integral part of any purposive approach in legal interpretation. Eventually, as a conclusion, the author presents his own view of practical effect and usage of the whole theoretical fiction of gaps. In this part, discussion shall focus on ideas of “new” legal hermeneutics and other opinions that have appeared recently. |