Gaps, the NUCLEAR WEAPONS Advisory Opinion and the Structure of International Legal Argument between Theory and Practice

Abstract

A gap in the law or lacuna is the absence of something that arguably ought to be there. 1 Gaps are a negative quantity; they depend for their ‘existence’ on the ‘other’ that surrounds them. 2 The question whether there are putative additional characteristics in order to make non-existing norms into ‘gaps’ is one of the central problems of legal theory. The question whether there is a benchmark makes defining ‘gaps in the law’ difficult. There is too little law in relation to what, exactly, one might ask. Lacunae as negative entities are difficult to prove, because one has to prove the absence of norms, not their ‘validity’, in the sense of ‘existence’. 3 While questions of proof will not be discussed in this article, the formulation of the question does point to the question of where norms ‘end’. The problem of gaps is well recognised in international legal scholarship...