In this article, we will consider the gaps in law and how to fill them. You will find out what types of gaps exist, and also in what cases you can use one or another of the ways to fill them. These are important topics that lawyers and politicians need to know first.
The state, with the help of its power, provides the vital functions of this or that society, and it needs the right to implement normative regulation. Initially, the law is intended to be a pacifying and stabilizing factor. It must be remembered that the principles of justice and freedom are laid down in it.
Law is a very multifaceted and complex phenomenon. Much depends on his correct understanding: the rule of law in society, the attitude of people towards the state and the regulations that emanate from it, the level of legal culture in general. All this makes his study relevant not only for lawyers.
Legal regulation
Consider the concept of legal regulation. This is the streamlining of various social relations, their protection and development, legal consolidation, which the state exercises through legal means. Let us single out its main features.
Signs of legal regulation
- It is a form of social regulation.
- With its help, relations between subjects are clothed in a specific legal form, initially having a state-imperious character. In other words, the state in legal norms indicates the measure of proper and possible behavior.
- The concept of legal regulation is specific. After all, it is always associated with certain real relationships.
Juridical law
Two more concepts need to be clarified before moving directly to the topic. Legal law is a measure of the possible behavior of its holder, as defined by law. Its synonym is subjective law. It should be distinguished from the objective, which is a complex system of social norms and a social regulator. Legal law implies the existence of the subject to which it relates. This person is the owner of the sphere of power and freedom that make up its content. Subjective law is, for example, the right to any action or to something (to education, to work, etc.). Moreover, it is fixed in the norms, the totality of which is an objective right.
Objective law
It, unlike the subjective, practically does not depend on the will of a specific subject. Objective law is formed gradually and is a regulator of relations in society. Throughout life, people enter into various relationships to meet their needs - in labor, in creating a family, in services and goods, etc. Over time, in accordance with this, norms are formed, certain well-established rules of behavior. For example, the rights of a citizen of the Russian Federation are fixed, the degree of punishment for their violation is established. Various codes appear, the constitution, regulatory acts, that is, the system of legislation in general.
We now turn directly to the topic and talk about what gaps in law exist and how to fill them. First of all, you need to decide on a key concept.
What is a gap in the law?
It arises when, in relation to certain factual circumstances that are in the sphere of legal regulation, there is no definite regulatory requirement. The concept of a gap in law is based on the incompleteness of the legal framework for the use of law. Note that cases of complete non-settlement of relations can also be considered gaps. However, these phenomena have a different quality than the incompleteness in existing regulations. With the help of law-making activities, such "complete gaps" are filled. The relevant state bodies are involved in this.
Imaginary and valid spaces
Now consider the types of gaps in law. Among them stand out imaginary and real. The latter takes place when some part of the rule of law or all of it is absent if legal regulation is provided for such an attitude. A real gap exists when it can be stated with certainty that a particular issue is subject to regulation and must be resolved precisely by legal means. However, some specific decision of it or a decision of any part is not provided in full or not provided at all.
An imaginary gap occurs when any sphere of public relations or a specific issue is not regulated, although, in the opinion of a certain group of persons or one person, they must be resolved by legal means. Perhaps the legislator in this case does not consider that they should be resolved legally.
Initial and subsequent whitespace
From the point of view of the reasons for the appearance of legislation in the space, it can be either subsequent or initial. The initial one is noted when the circumstances requiring settlement already existed, but the legislator, for one reason or another, missed them, because of which they were not covered by legal acts. The subsequent gap is a consequence of the emergence of new relations in the subject of regulation. It is noted as a result of the fact that the corresponding social sphere is developing. Thus, the formation of such gaps in a sense is a natural phenomenon, despite the fact that legal forecasting should fully manifest itself in such situations.
Ways to fill in the gaps in law
Gaps, as well as cases of complete unsettledness, should, in principle, be bridged as the legislator detects it. However, due to the fact that the law is systemic in nature, and its elements are closely interconnected, the gap can be filled in the process of law enforcement. In jurisprudence, there are traditionally 2 methods that can be used to supplement it. This is an analogy of law and an analogy of law. Some authors note another way, called subsidiary application of law. Briefly tell about each of them.
Analogy of law
The analogy of the law (or rather it would be to talk about the analogy of the rule of law) involves the following conditions:
- the lack of an appropriate legal norm that could be called adequate;
- the presence of general regulation by the law of this particular case;
- the existence in the law of a similar norm, that is, one in the hypothesis of which there are circumstances similar to those that the law enforcer had to face.
It is precisely the similarity of legal facts that enables the disposition of an analogy of this kind. Its application in the field of business and civil relations, the protection of various intangible goods, such as inalienable freedoms and human rights, is provided for by existing legislation. However, in the criminal sphere, such an analogy is unacceptable. In this case, the activity of the legislation is the only way by which it is possible to eliminate gaps in the law.
There are numerous examples. In particular, only such an act for which criminal liability is prescribed by law should be considered a crime. However, in practice, in our country, as in others, unfortunately, they are sometimes attracted to it by analogy. Of course, this violates the rights of a citizen of the Russian Federation. For example, at the time when the Criminal Code of the Russian Federation did not contain an article on liability provided for car thefts, those who committed this act were attracted for hooliganism if they did not have the purpose of appropriation of another's property. There were many other gaps in law, examples of which are no less interesting. In particular, more recently, when there was no article in the Criminal Code providing for punishment for kidnapping, the actions that carried him out were considered as unlawful deprivation of liberty, that is, under articles similar, close, contained in the Criminal Code of the Russian Federation.
Analogy of law
The analogy of law is a less accurate way to solve a legal case. For its operation, the following conditions are necessary:
- the absence of any similar norm;
- lack of a legal norm (of course, we are talking about adequate);
- the presence of general regulation by the law of this particular case.
In this situation, it is believed that the law enforcer should proceed in the decision of the case from general principles, as well as from the meaning of legislation. This means in practice the use of various principles (principles of institutions, sectoral, intersectoral, general). They are fixed in law and reflect the laws of the mechanism and subject of legal regulation. The mistake in this case will be the use of an analogy of law, if at the same time there is a similar norm. It will also be incorrect to use if there is an adequate norm similar.
Subsidiary application of law
We continue to consider the gaps in law and how to fill them. Now let's talk about the subsidiary application of law (from the Latin word subsidium, meaning "support", "help"). This is also an analogy of the law (legal norm), but not of any, but belonging to a related industry. For example, it is possible between the norms of family and civil, financial and administrative law. It is clear that subsidiary application does not make sense if there is a similar norm in the same industry.
In which cases can not use the analogy
It should be noted that to fill the problems in law by analogy is possible only if it is permitted by law. It is unacceptable to do the same in administrative and criminal law. This is because officials have different perceptions of “dissimilarity” or “similarity”. Consequently, the conclusions to which they come based on various principles of law can vary significantly. Because of this, the danger of arbitrariness and lawlessness is created. A gross violation of rights may occur.
Consequently, administrative or criminal prosecution by analogy is unacceptable. The normal outcome of the case from the point of view of strengthening the rule of law will be its termination if it turns out that the actions committed by the involved party are not a violation of rights, that is, a by-law or prescriptions of the law.
When an analogy is appropriate
In civil and civil procedure law, this issue is resolved differently. In the sixth article of the Civil Code of the Russian Federation, we find a provision according to which, in cases where by agreement of the parties or the legislation did not directly regulate the relevant relations, and also there is no custom business practice applicable to them, civil law is used that regulates similar relations.
Law making
The aim should be to ensure that as few gaps as possible are enforced. How to achieve this? Bridging the gaps in law is most effective through timely law-making, that is, prompt adoption of the necessary law or other legal act.
In life, unfortunately, this is not always possible. The fact is that the adoption of a new law or normative act takes a certain time, requires special procedures, costs, etc. Therefore, the analogy of law and the analogy of the law remain so far the most important ways by which to bridge the gaps in law. In certain critical cases, they resort to it.
So, we have described the main gaps in the law and how to fill them. We hope the information provided will be useful to you.