What Is a Gap in Law?
Legal gaps are best defined as an absence or inadequacy of law and therefore the issue at hand cannot be resolved by applying relevant legislation alone. Often it means that there are insufficient legal regulations or that certain areas of law are lacking. Legal gaps can also refer to the legal situation in which a required legal norm is foreseeable, but not provided for. From a teleological perspective, legal gaps can be understood as an omission in legislation that should be prohibited or forbidden. Legal gaps can result from various reasons including legislative oversight by the lawmaker or an unexpected social development gone unnoticed by the legislature.
In the system of law, a legal gap has a significant impact and may lead to discrimination. This can be explained as, legal norms are not only a matter of the individual norm itself, but also depend on their systematic relation to one another. Different legal norms interact with one another and could create resulting legal gaps. To illustrate this, consider minorities who devote themselves to religion. In Islam, an older woman is allowed to marry a younger man. Normatively however, South African law does not allow for a man to have multiple wives. The relationship between the general prohibition of polygamy and the norms in Islamic law can be problematic. In a practical sense, the specific system of law gets disrupted.
Legal gaps usually take two forms, namely, those that cannot be closed , and those that can be closed. The former may also be regarded as a "genuine" legal gap. These are further classified into the following:
"Genuine gaps" as referred to above, are also known as bei Rechtsgünge. These are instances in which the legislature omits relevant provisions in the act itself. This suggests the legislature did not intend to regulate the specific issue and therefore does not want to intervene therein. The effect of such gaps is the inability to take certain legal actions or to ask for the protection of the law, even where the law would ordinarily allow it. For example, one court may treat a legal action as inadmissible in a particular situation whilst another may consider the same action as admissible under similar circumstances.
"Voluntary gap" refers to provisions of law that are within the sphere of prohibition or permissibility by the competent authority. The Minister of Home Affairs makes the decision to issue a work visa to a foreigner in South Africa. This authority depends on whether the relevant criteria have been met. In cases where a condition is not specified in the applicable legislation, the competent authority will be given a wide discretion to decide whether the requirement should be imposed or not.
Legislators are aware of the existence of legal gaps, though they are often unavoidable. When gaps exist, courts will determine how and when to fill the gaps with regard to each legal action. Courts can therefore play an important role when filling a gap in the law and thus ensuring justice in the particular situation.
Reasons for Legal Gaps
The reasons behind gaps in the law are diverse. In some cases, the legislative process may progress slowly to include all stakeholders. The U.S. Constitution, for example, took several years to draft as drafters honed provisions to keep certain groups of people out of the new nation’s government. In our current political climate, anti-immigration rhetoric has stalled immigration reform efforts-an increasingly prominent need for legal clarity. Public policy shifts lead to legal gaps, too: bankruptcy protections were expanded following the 2008 financial crisis, but not before millions of Americans lost homes, jobs, and credit scores.
American legal gaps are further complicated by our federalist system, in which states have the authority to legislate and regulate within their borders. Many states have different judicial processes, statutes, and regulations than the Federal Court System. For instance, New York courts primarily do not demand proof of insurance for those accused of driving while intoxicated. However, a Wisconsin court requires proof of insurance for at least ten days before drivers can regain their driving privileges. Therefore, New York bars driver’s license reinstatement by the court until proof has been submitted, while Wisconsin does not.
Between jurisdictions, the law is never in complete alignment. For this reason, it’s usually best to consult an attorney who is licensed to practice in the jurisdiction that has authority in your matter.
Internationally, legal gaps occur relatively frequently because nation-states have varying interests. International organizations such as the World Trade Organization (WTO) and the United Nations (UN) have attempted to harmonize international law in trade and conflict prevention, yet nations are still likely to adopt varying stances on issues. When a member of the UN Security Council (UNSC) vetoes a peacekeeping mission, the action complicates compliance with international law. Although International Law Commission (ILC) rulings ostensibly inform the United Nations’ direction, it is still up to each member nation to comply with binding laws. When national interests collide with international consensus, the law can be at a standstill. The trenches of international law often look much like state legislation.
Effects of Legal Gaps
One of the most problematic aspects of legal gaps is the potential for legal uncertainty. As mentioned, the majority of gaps exist due to one of the three causes of general and federal law gaps: unaddressed issues, outdated concepts, or the constant development of new technologies and societies. In response, gaps can create a grey area wherein citizens and businesses are left with no clear guidance on their legal rights or obligations. This generally forces citizens and businesses to interpret the law themselves or bear the costs of seeking out legal advice. All too often, however, those most in need of advice or legal assistance have the least access to that kind of information, and thus are left at a disadvantage during a legal dispute.
To make matters worse, the lack of clarity can also allow individuals and businesses to take advantage of the gap for their own gain—whether through exploitation of unaddressed issues in the law or intentional circumvention of existing legal concepts. The lack of ambiguity can also lead to uneven enforcement of existing laws because it may be difficult or confusing to apply the law in a particular circumstance. This can mean essentially that instead of everyone being held responsible under the same set of rules and being held to the same standard, some individuals or businesses can get away with fewer consequences than others.
Another area where this uneven enforcement comes into play is when a legal gap is used by regulators and prosecutors to target more vulnerable parties or those more reliant on certain goods or services. Imagine if a state tried to exploit a gap in federal transportation law to limit shipments of specific, important goods, such as medical equipment or food. Because "need" is subjective, a lot of people would be affected and forced to deal with the legal uncertainty of whether there is a legal loophole that the government is trying to use to justify its actions.
Gap in Law Examples
In the world of law, "legal gaps" can sometimes make the difference between a fair outcome and a significant injustice. And while it may seem that our legal system—intended to be based on comprehensiveness and clarity—would never suffer from such issues, they do exist in both civil and criminal justice systems throughout the country.
Some notable examples of legal gaps in the past can be found in famous Supreme Court decisions, including:
• DeShaney v. Winnebago County Department of Social Services (1989) – This Supreme Court case involves a boy who was placed in an abusive home despite multiple reports made to child services. After suffering severe brain damage due to the abuse, he and his family brought a lawsuit against the county for its failure to protect the boy from abusive parents. In their ruling, the Supreme Court found that because the boy was no longer in the custody of the state, the state had no legal obligation to protect him, despite his injuries. In the aftermath of this case , many child welfare advocates sought policy changes that would improve the identification of at-risk children.
• In Re D.C. (1999) – This Supreme Court case involves a man who was found to be the father of a child and given parental visitation rights with the mother. The father later began visiting the child without trying to contact the mother, leaving her concerned about his involvement in the girl’s life. Despite this, she agreed to allow him additional visitation. When the father was sentenced to prison, the mother sought to terminate his parental rights, but because he had not yet served half of his sentence, his parental rights could not be terminated. This case highlighted legal gaps involving both parental rights and rights in visitation.
• Roe v. Wade (1973) – One of the most iconic decisions in modern day history, Roe v. Wade is known for recognizing a woman’s right to choose, allowing her to have an abortion in the first two trimesters of her pregnancy. It paved the way for further treatment of women’s rights in the United States.
Each of these cases served to identify "legal gaps" that might otherwise have gone unnoticed. They also distinguished why there are consequences for these gaps, such as allowing someone to plead not guilty to a crime on the basis of misunderstanding specific details about that crime.
Resolving Legal Gaps
To fill legal gaps, the law has a number of processes and strategies. When a gap in the law is discovered, reform is often suggested. Legislative reform is however not always possible. If such a suggestion or petition is made to the legislature, the legislative body may either enact legislation to fill the gap or simply do nothing. Judicial interpretation is another common way of filling legal gaps. The judiciary holds the power to interpret the law and has the power to fill legal gaps by arriving at judicial constructions of the law which would cover the gap. Judicial interpretation and construction may fill such gaps but not in all circumstances and the courts may be limited in the extent of any gap they can fill. Some gaps may be filled while in some cases, the courts may lack the power to fill the gap. Regulatory agencies are also often tasked with the duty of filling the gaps in the law especially when the law left such duties to be filled by the regulatory agencies. Finally, gaps in the law may be filled through public policy. It is important to note that such an analysis of the public policy surrounding a subject matter may be used to interpret the law applicable to a specific case in filling the gaps.
Future, Implications and Challenges
The challenge of identifying and addressing legal gaps may only grow as technology advances. With the proliferation of web-based services which often reach across jurisdictions, the borders of these services can blur jurisdictional lines and complicate the determination of the applicable authority. This will also likely be the case if cyber-physical systems take center stage for governments. These systems, such as autonomous robots and drones, blur the line between hardware and software and make determining the competent regulatory authority or jurisdictional forum less straightforward. For these reasons, a uniform approach toward solving gaps in the law may be called for both domestically and internationally.
As societal norms evolve, the laws governing their areas of influence may seem antiquated . In many areas, the law incorporates notions that have been transformed or even wholly displaced (such as vicarious liability in the context of autonomous agents). As more and more legacy statutes become stale in light of new norms, legislatures may require greater scientific or legal expertise. To that end, initiatives to facilitate expertise within legislative bodies may become more common.
Finally, the influx of new legal issues allies with a widening scope of interactions. Complexity may be a call for specialization within the legal community. As more issues of overlapping legal domains arise, it may be increasingly necessary for experts in specific fields to join their insights with traditional legal analysis.
No Responses