Bix B (1993) Law, Language and Legal Determination. Oxford University Press, Oxford Golding MP, Edmunson WA (eds.) (2005) The Blackwell Guide to the philosophy of law and legal theory. Blackwell, Oxford This chapter examines the consequences of legal positivism, which considers that law is created by social sources so that the existence and content of legal systems can be determined on the basis of social facts without resorting to moral arguments. It defends the source-based view of law against accusations of incompatibility and explains why and in what sense all legal systems have gaps that require the exercise of discretion and extrajudicial considerations by the courts in some cases. Bulygin E (2004) on legal gaps. In: Comanducci P, Guastini R (eds.) Analisi e diritto 2002–2003. Giappichelli, Turin, S. 21–28 Coleman J, Head B (1995) Determination, objectivity and authority. In: Marmor A (ed.) Recht und Auslegung.
Aufsätze in Rechtsphilosophie. Clarendon Press, Oxford, pp. 203-278 It may also happen that a legal system, while rendering a practical question undecidable by judges, imposes on the legislature the duty to rule on it. In such a case, the practical question is not legally relevant from the point of view of the decision, whereas it is legally relevant from the point of view of the legislation. See Chiassoni (2011), chap. 3, § 9. In the case of normative gaps in the strict sense, their existence in relation to a particular set of norms depends on: (a) the content of the norms of the set and (b) the criteria (explicit or implicit) of the legal relevance of the cases, which generally vary according to time and place. For the relevance criteria, see Chiassoni (2011), chap. 3. the total or partial absence of rules of law on the basis of which a public authority could rule on a question of law application in a legal case governed by law. Legal loopholes may arise because such a case was not taken into account in the drafting of the law or because it is the result of new industrial relations arising after the promulgation of the law.
Dyzenhaus D (2004) Die Genealogie des Rechtspositivismus. Oxf J Legal Stud 24:39-67 Discover Thomson Reuters` Practical Law Connect, the legal expertise solution developed by and for in-house counsel. After Raz (1979), pp. 71: “Gaps pose legal and philosophical problems only if they arise from matters over which there is jurisdiction . Since the law is identified through the eyes of the courts, legal loopholes should also be identified. Schauer F (2009) Thinking like a lawyer. A new introduction to legal argumentation. Harvard University Press, Cambridge MacCormick N (2005) Rhetoric and the Rule of Law. Eine Theorie der juristische Argumentation.
Oxford University Press, Oxford As General Counsel, you will be expected to provide specialist knowledge on legal topics ranging from simple contractual service contracts to strategies for navigating global trade regulations. Your legal know-how must be broad and deep – and accessible at all times. Practitioners and theorists – it should be noted, although incidentally – do not live in separate and distant worlds, as my previous remarks may have suggested. Rather, they live on the same “premise” and cooperate – albeit at different levels and in different ways – to shape it and make it what it is. As a result, theorists` ideas about the nature of legal loopholes and other related issues are not just a bundle of self-serving speculations about practitioners` (allegedly) crude views. They attack practitioners` conceptual framework and influence the way they look at and process these mysterious events. This simple fact in turn makes the entire company of the gap even more interesting for careful and distanced scrutiny. Gaps in knowledge and experience are typical. But that doesn`t mean leaders across the organization aren`t counting on your ability to respond quickly and effectively to legal questions. With over 230 experienced legal writers, Practical Law offers an unparalleled depth of knowledge and experience, regardless of the legal or regulatory issue.
These are lawyers who have not only sat in your chair, but who also work every day to help general counsel like you anticipate, mitigate and resolve complex legal and regulatory issues. Kelsen H (1934) Zur Theorie der Rechtsauslegung. Legal Stud 10(1990):127–135 Two examples should suffice to support my claim. On the one hand, the way in which Herbert Hart, the most important English legal philosopher of the twentieth century, treats “gaps” or “unsolved cases”: see Hart (1983a), pp. 7-8; Hart (1967), pp. 105-108; Hart (1977), pp. 134-140; Hart (1961), “Postscript,” 272-276. On the other hand, the fact that readers will find no indication of “gaps” or “unregulated cases” in the analytical index of what constitutes the compendium of theoretical achievements of common law jurisprudence at the turn of the century: I mean The Oxford Handbook of Jurisprudence and Philosophy of Law (Coleman and Shapiro 2002). See also Lucy (2002), pp. 206-267, where the author essentially follows MacCormick`s “hard cases” theory, in which gaps are dealt with under the rubric of “relevance issues,” and appears to be interested in justifying case law rather than providing a summary account of its typical structure and processes. The same remarks apply to the essays in The Blackwell Guide to the Philosophy of Law and Legal Theory (Golding and Edmunson 2005).
See also MacCormick (2005), pp. 47-51. In recent literature, “gaps” by Marmor (2011a, 2014), Gardner (2012), pp. 34-35 (taking into account “positivist jurisprudence” and supporting the standard common law view that “gaps” are not cases where “the law is silent” but cases where the law is linguistically “indefinite” or contains no standard for resolving a “normative conflict”). I have analyzed Marmor`s theory of shortcomings above, in Chapter 6, Cults. 6.4 and 6.5. The shortcomings of Soviet law are mainly related to the fact that a certain part of the legislation lags behind the rapidly developing Soviet society. A court – or any other body that enforces the law – cannot close the loophole itself after finding a loophole in the application of a law; It must submit a report to a legislative body on the adoption of new legislative decisions. In certain cases provided for by law, the court may decide a specific case by analogy.
The elimination of legal loopholes is an important task for improving legislation and is carried out by legislative bodies through the creation of new legal norms. Moreso JJ (1997a) La indeterminación del derecho y la interpretación de la Constitución. Centro de Estudios Políticos y Constitucionales, Madrid [Eng. Tr. Rechtsunbestimmungheit und Verfassungsauslegung. Kluwer, Dordrecht, 1998] Oxford Academic is home to a variety of products. The institutional subscription may not cover the content you are trying to access. If you think you should have access to this content, please contact your librarian.
Schauer (1991a), p. 225: “Gaps are exclusively the product of the combination of two different conditions that exist only in systems that claim to be complete and do not provide a standard (or close) rule for cases not provided” (emphasis added). I will return to Schauer`s exclusivity thesis in a moment while I deal with identifying gaps. Conte AG (1962) Saggio sulla completezza degli ordinamenti giuridici. Giappichelli, Turin For an overview of the free rights movement on gaps and interpretations, see, for example, Chiassoni (2016e), pp. 608-618. Dworkin R (1986) The Empire of Law. Harvard University Press, Cambridge Many companies offer single sign-on between the company`s website and Oxford Academic.
If you see “Register via the Society`s website” in the registration area of a journal: Our books are available by subscription or purchase for libraries and institutions. See, for example, Chiassoni (2016), pp. 579-580. Schauer F (1991b) Exceptions. Univ Chicago Law Rev 58:871–899 Schauer (1991a), p. 224: “If we think only of a regulatory rule . It seems difficult to create the idea of a gap. The failure of the “No Dogs Allowed” rule to exclude unattached men is hardly a “loophole” generally […] a rule cannot create the idea of a loophole. See, however, Alchourrón and Bulygin (1971), chap.
For them, the normative sentence, which contains, for example, only the standard “dogs are not allowed in restaurants”, would be incomplete in the light of the additional category of relevant cases identified by the characteristic “no dog”. For lions, rattlesnakes and bonobos – all cases of dogless entities – the norm offers no solution. Dworkin R (2006) Justice in Dresses. The Belknap Press of Harvard University Press, Cambridge See chap. 3, sects. 3.4 and 3.6, Chapter 5, Section 5.2, Chapter 6, Sections 6.2, 6.3 and 6.6 above. Guastini R (2004) L`interpretazione dei documenti normative. Giuffrè, Milan.
Hart (1983a), p. 7; see also Hart (1961), “Postscript,” 274-275. Schauer (1991a), p. 227: “It is precisely the purpose of these rules [rules of jurisdiction] to allow interpreters to produce results on the basis of factors that are not themselves usually included, and therefore an interpreter who performs this task does something different from [if] is constrained by the limits of the language to perform an act of interpretation, by the limits of the decision-maker`s foresight or by the eliminable factor of open texture”.
