Identification of legal gaps

Abstract

The article deals with identification of legal gaps, without delving into methods and ways in which they can be filled. The aim is to offer certain approaches and methods for their identification. A legal gap is understood here as a lack of a legal norm to regulate a certain situation not falling into a legally free space, viewed from the perspective of an entirety such as a piece of legislation. Determined as such, it is a relative concept demanding to be determined in relation to the selected entirety. Existence of a gap in relation to a particular entirety does not have to mean that it exists from the perspective of the legal system. It is questionable if a legal gap can ever exist from the perspective of the legal system, since the legal system always envisages mechanisms for filling legal gaps and does not recognize them as such. The method presented here is based on observation of smaller legal units - legal institutes. A legal institute is understood here as a well-round - ed complex which should encompass and resolve several groups of elements and, in that way, determine itself towards the issue being regulated, but also towards other legal institutes within a wider totality observed (e.g. a piece of legislation or a group of laws regulating a certain field). Legal norms and legal institutes produce effects in space and time and towards entities. These are, therefore, the first elements to be determined: space, time and entities. These elements are called elements of real structure. It has been noticed that contemporary regulations usually do not determine themselves towards space and entities, particularly in the private law field within civil law. This article does not deal with reasons for such an approach, but they can probably be sought and found in the universality of civil law, particularly its private law part, for which it more likely stands that the legislator derives its competences from the rights of subjects than that the subjects derive their competences from the norms created by legislator. The second part, which seems to be significant for identification of legal gaps relates to rights, obligations and responsibility and is called basic legal structure. It leans on facts, events, but it legally qualifies them by envisaging rights, obligations and responsibility. Each of the elements can be decomposed from the perspective of its origin, content and resolution. That brings us to the fact (event) to be recognized and linked to the legal effect of the norm, depending on the field of law at issue. This article was not able even to attempt further developing these elements according to legal fields due to the supposed volume of such a task, as well as to cutting into specific fields, which demands their better understanding. The third part observes the abstract structure independent of facts. It also relates to right, obligation and responsibility, but irrespective of the object or subject of their application. For that reason this structure is abstract. It is shown that such structures can be mutually combined, i.e. that they are by their nature strictly differentiated. Mathematical models are suitable for their combination and one of the possible ones is presented in the article. Finally, there is a fourth section, which is logical by nature and relates to rules of logic, but only to ones possibly significant for legal gaps. Logical rules suitable to these purposes have been selected and they demonstrate that if a legal gap does not exist from the perspective of previous rules, it can appear due to logical errors. All listed elements and procedures should serve as a model - a scheme which can be also envisaged as a pattern to 'cover' the solutions being examined and which will show if legal gaps exist or not. The suggested system is not simple, because it cannot be such. It really is not suitable for simple procedures, but the law that is the subject of examination is neither simple nor suitable for such methods. Law is a multidimensional system and demands complex methods of examination, checks and creation. Conversely, it can be said that omission to apply a complex system of examination and reliance only in ones own knowledge of a certain legal field, without a necessary assisting tool - methods and schemes designed for this purpose, is sure to leave many legal gaps open. This is confirmed on a daily basis by the practice of the Serbian legislator, which on average passes (at least) one regulation daily, only to soon replace it with another one, not much better than the previous. Reasons for legislative amendments, understandably, do not only relate to legal gaps, but they are one of the reasons. This article attempted to provide a small contribution to their identification.