DETERMINING THE LEGAL NATURE OF GAPS IN THE LAW: ROLE AND SIGNIFICANCE FOR EFFICIENT STUDY OF THIS PHENOMENON

Abstract

The article is devoted to the issues of determining the role and significance of gaps in the law, in particular, stating the views on this issue set forth in scientific literature. To this end, the publication first analyzes the doctrinal works of national scholars. As a result, the author has established that when studying the issue of gaps in the law, most scholars answer the question of what causes this phenomenon (diversity of life situations, errors in the contents of the law when it is developed, etc.), but there is no focus and clear indication of legal nature of gaps in the law. The author considers the above to be a fact which does not contribute to the efficiency of further studies in this area, since clear determination by the researchers of the “abnormality”, “normality”, “inherent nature” of gaps in the law or their “negative” or “positive”, “stimulating” nature is a substance for determining the quality and properties of this phenomenon of legal reality. Instead, the author expresses her own scientific view that gaps in the law are an objective phenomenon of legal reality which cannot be characterized as negative, and which patterns should be studied. In addition, the article contains thesis that gaps in the law are “situational”, which is one of characteristics and signs of the described phenomenon. In view of this, the author argues that solutions to the problem of gaps in the law are of a one-time nature, and after a legal response is gained thereto, it exhausts itself as a legal problem. At the same time, the author emphasizes that there is a correlation between the role and significance of determining the legal nature of gaps in the law and the processes and circle of entities addressing the issue of gaps in the law in each particular case. Namely, when it comes to the lawmaking body, it “fills” gaps in the law, and accordingly, this happens in the course of a lawmaking process, i.e., adoption of laws, and the enforcement officer is able to promptly “eliminate” gaps in the law, while resolving a specific legal situation, but not to overcome the gap, as this will happen in the course of law enforcement. In turn, the term “filling” gaps in the law is a generalized category and correlates with two above-mentioned terms as “part” and the “whole”. Despite this, the judicial literature completely ignores this correlation of categories and concepts with each other, which has profound substantive consequences, since adequate use thereof determines quality of the study and quality of conclusions of scientific research on legal nature of gaps in the law.