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A Short Introduction to
‘The Problem of Legal Gaps’
Claudia Irti*
I. CODIFIED LAW AND THE LEGAL GAP .............................................. 157
II. THE PROBLEM OF LEGAL GAPS IN THE EARLY NATURAL LAW
CODIFICATIONS................................................................................. 161
III. THE PROBLEM OF LEGAL GAPS IN THE ITALIAN LEGAL
ORDER: FROM ARTICLE 3, SUBSECTION 2 OF THE
PRELIMINARY DISPOSITIONS OF THE 1865 CIVIL CODE TO
ARTICLE 12, SUBSECTION 2 OF THE PRELIMINARY
DISPOSITIONS OF THE 1942 CIVIL CODE .......................................... 167
IV. ARTICLE 12, SUBSECTION 2 OF THE PRELIMINARY
DISPOSITIONS TO THE CIVIL CODE: THE RECIPIENT OF THE
NORM ................................................................................................ 168
V. ANALOGY AND GENERAL PRINCIPLES AS TOOLS OF SELF-
INTEGRATION OF THE CODAL SYSTEM ............................................ 170
A. Self-Integration and Hetero-Integration: Some
Critical Observations ........................................................ 173
B. Article 12, Subsection 2, as an Anachronistic Norm........ 177
I. CODIFIED L AW AND THE LEGAL GAP
The ‘problem of legal gaps’ has long been debated,
1
but it was only
after the great codifications that it became a central topic among the
most popular European scholars,
2
‘the field where opposite
considerations of law and legal science confront themselves’.
3
- © 2014 Claudia Irti. Professor of Law, Unicusano University, Rome, Italy.
- ‘Legal gaps were not unknown in the Roman tradition. Emperor Justinian in the Tanta Constitution referred to legal gaps, ordering the promulgation of the Digest. Jurists
specifically referred to the legal gaps in the early essaysde interpretatione in iure, since the
second half of XV century’. C HIASSONI ,Lacune nel diritto—progetto per un vademecum
giuridico,in Interpretazione e diritto giudiziale, I, ed. by M. Bessone, Giappichelli, 1999, p. 111
ff.
2. Z ITELMANN ,Luckenimrecht, D UNCKER & H UMBLOT , Leipzig, 1903; D ONATI ,Il
problema delle lacune nell’ordinamento giuridico, Milano, 1910; B RUNETTI ,Il domma della
completezza dell’ordinamento giuridico, Firenze, 1924; S ANTI ROMANO,Osservazioni sulla
completezza dell’ordinamento statale, Modena, 1925; B OBBIO ,Lacune del diritto, inNovissimo
digesto italiano, vol. IX, Torino, Utet, 1973 pp. 419-424; CANARIS,Die Feststellung von
LückenimGesetz, Berlin, 1964; C ANARIS ,De la manière de constater et de combler les lacunes
158 TULANE EUROPEAN & CIVIL LAW FORUM [Vol. 29
The European legal experience prior to the age of codification was
founded on the Civil Law, thejus commune, a body of legal principles
stemming from Roman law, rearranged in the Justinian Corpus Juris and
constantly interpreted, applied and adapted by a range of jurists (judges
and doctors) engaged in a continuous task of law interpretation.
4 In this
system, the practically unlimited possibility to use different interpretative
techniques—from analogy toextensio regis, from equity, Natural Law,
common Reason tolex alii loci 5 —in order to integrate laws in the legal
system, made any ideas about the problem of the legal gap pointless.
6
Towards the end of the eighteenth century, the birth of national
States with a centralized control and the need for a new arrangement of
the social life consistent with the late political and social changes (which
reached their highest point with the French Revolution) matched with the
Natural Law idea 7 of a logic-formal law, which, explained methodically,
would be able to guarantee certainty and order.
8
de la loi en droit allemand, inLogique et Analyse, 9, 1966; C ONTE ,Completezza e chiusura, in
Nove Studi sul linguaggio normativo, Giappichelli, Torino, 1967-1968, pp. 15-37; A LCHOURRON
& B ELYGIN ,Normative Systems, 1971; C ORSALE ,Lacune dell’ordinamento giuridico, inEnc.
Giur., XXIII, Torino, 1973, pp. 257-271; B ELYGIN ,Legal Dogmatics and Sistemation of law,
1983; CHIASSONI,supra note 1, at p. 111 ss. C HIASSONI ,Lacune nel diritto. Appunti per una
tipologia realistica, inPrassi giuridica e controllo di razionalità, a cura di L. Triolo, Torino,
Giappichelli, 2001, pp. 37-89; G UASTINI ,Le fonti del diritto e l’interpretazione, Giuffrè, 1993,Il
diritto come linguaggio, Torino, Giappichelli, 2001; LIPARI, Spunti in tema di lacune
dell’ordinamento giuridico, inStudi in onore di Davide Messinetti, ed. by Ruscello, 2008, Napoli,
p. 533 ff.
3. CHIASSONI,supra note 1, at p. 111 ff.
- ‘Special Law’ was side by side with Ius Commune; special laws would include laws, charters and constitutions issued by the local government or by the ‘prince’: the local legal system.
5. Particularly Gorla writes about the legal resort to ‘communis opinion totius orbis’ or
‘praxis totius Europae’ ‘as a means to complete the local legal system in thecasus omissi o dubii
and as a criterion of evaluation or interpretation of its norms as complying or not with ‘common reason’. Then there is ‘analogous legal resort to lex alii loci, so that legal receptions of the Law of
another country and thus, directly, standardizations occur’. Relazione sul Diritto comparato al
congresso di Taormina 1981, inCinquanta anni di esperienza giuridica in Italia, Giuffrè, 1982, p.
6. C ORSALE ,supra note 2, at p. 268. The author refers to G ILLESSEN (Le problème des
lacunes du droit dans l’évolution du droit médiéval et moderne, inLe problème des lacunes en
droit, ed. by Perelman, Bruxelles, 1968) who noticed ‘the absence of the problem of legal gaps in
the studies of Medieval Legal History’, explaining the reason for this by the fact that ‘the problem would present a real difficulty only from the XIX century, that is when the theory of the necessary completeness of the written law was established’ (fn29).
7. G RENDENE ,Lezioni di Storia delle codificazioni europee, in http://helios.unive.
it/~corc_sis/corsi/2003/grendene/download/Mod04OL.pdf.
8. Z WEIGERT & KOTZ ,Introduzione al diritto comparato, 1998, Giuffre, v. I, p. 106 ff.;
DAVID ,I grandi sistemi giuridici contemporanei, 1994, Cedam, p. 51 ff.; L.J. C OSTANTINESCU ,
Introduzione al diritto comparato, 1996, Giappichelli, p. 24 ff.; M ONATERI ,Il modello di civil
law, 1997, Giappichelli, p. 78 ff.; C ORSALE ,supra note 2, at p. 268; G ORLA ,Unificazione
160 TULANE EUROPEAN & CIVIL LAW FORUM [Vol. 29
showing the problem of legal gaps to its full extent;
15 in fact, according to
some scholars, 16 ‘the point of departure for the revision of interpretational
theory was really created by the so-called problem of the gaps in the legal
system’.
The debate on this topic is transnational, and since the twentieth
century it has revolved around some recurrent themes and particularly
around the analysis of a range of problems categorized by the scholars of
legal gaps: 17 the ‘typological problem’, which focused on the need to
define the concept of gap;
18 the ‘ontological problem’, which triggered
the debate about the completeness of legal systems 19 and aiming to
confirm or deny the existence of the legal gaps; the ‘methodological
problem’, which examines in depth the methods of legal reasoning used
by the interpreter in order to integrate any gaps; and the
‘phenomenological problem’, raised by those 20 who wanted to deal with
legal gaps as variables depending on the interpretation.
21
Each of those topics would deserve a deep and lengthy treatise.
This Article, however, is intended more modestly to examine the main
stages of the origin of the problem of legal gaps in the codified systems
and, by means of an historical and critical reading of the pre-ordered
normative solution of the aforesaid problem in the Italian legal system
(article 12 of the preliminary dispositions), to understand the methods by
which legal actors (whether they are judges, theorists or even simple
legal users) have to deal with what was authoritatively defined as a daily
work of legal integration,
22 in a continuous dialectic tension between self-
integration and hetero-integration. 23
15. C ORSALE ,supra note 2, at p. 268.
16. A SCARELLI ,supra note 9, at p. 183.
17. Z ITELMANN ,supra note 2. This classification was adopted by C HIASSONI ,supra
note 1, at p. 111 ff.
- After this, other scholars created a varied typology of legal gaps; for instance, see
B OBBIO,supra note 2; C ONTE ,supra note 2; A LCHOURRON & B ELYGIN ,supra note 2; B ELYGIN ,
supra note 2.
- For a quick overview of legal theory and the several schools of thought in favour and
against the principle of completeness, see GUASTINI,supra note 2, at p. 157 ff.
20. Introduced by C HIASSONI ,supra note 1, referring to C ANARIS ,De la manière de
constater et de combler les lacunes de la loi en droit allemand,supra note 2, and to GUASTINI,
supra note 2.
21. M ONATERI ,Interpretare la legge (I problemi del civilista e le analisi del diritto
comparato), inRiv. Dir. Civ., 1987, I; C HIASSONI ,Prassi giuridica e controllo di razionalità,
Giappichelli, 2001; M ODUGNO ,Appunti dalle lezioni di teoria dell’interpretazione, Cedam,
22. C ORSALE ,supra note 2, at p. 269.
23. B OBBIO ,Teoria generale del diritto, Giappichelli, 1993, p. 262 ff; L IPARI ,supra note
2, at pp. 533-34.
2014] THE PROBLEM OF ‘LEGAL GAPS’ 161
II. THE P ROBLEM OF LEGAL GAPS IN THE EARLY NATURAL LAW
CODIFICATIONS
In 1794 theAllgemeines Landrecht fur Preussischen Staaten, or as
everybody refers to it, the ALR, was published by Frederick William II of
Prussia. This great legal consolidation was started by Frederick William
I in the early eighteenth century in order to simplify and homogenize law
in Prussian territories.
24
It is a code with more than 16,000 regulations 25 whose overt aim is
to provide judges with a complete collection of rules and solutions for
any possible dispute or legal matter, thus preventing judges from any
interpretative activity and restricting their function to that of a simple
legal executor. Together with the promulgation of that code, a special
Legal Board, theGesetzkommission, was established so that the judges
could readdress the unclear cases, as it was expressively forbidden to
them by the king to distance themselves from the ‘clear and intelligible
regulations of the Law... under the pretext of acting [upon] an
interpretation of the legislator’s will or purpose’. 26
The basic idea—in compliance with the principle of the separation
of powers—was fully to limit the interpretative functions of the judges,
an aim which is fulfilled by detailed legal rules and by attributing the
power to solve any doubtful case to the sole legal authority.
Historic studies noticed the inefficiency of the system Frederick II
wanted, and showed that the ‘Gesetzkommission’ was never employed
for its intended functions, whereas the code, although it minutely
provided for different possible circumstances, was never able to cover the
variety of events which arose in disputes, so that the judges were obliged
to interpret each individual disposition. 27
In the body of the code, however, it was possible to identify a norm,
paragraph 49, by which the judge who failed to find ‘any law useful to
the decision about the dispute’, was attributed with the power to judge
‘according to the general principles established by the local Law and
24. M ONATERI ,supra note 8, at p. 81.
- The great number of dispositions, apart from its casuistic nature of the compilation, is due to the fact that all the different branches of the Law were included: public, private,
constitutional, criminal, ecclesiastic and feudal.Id. at p. 82.
- This prohibition was contained in the decree of promulgation of the code. Its
violation would have entailed severe sanctions for the infringers. Z WEIGERT & KOTZ ,supra note
8, at p. 110. Another contribution by the Prussian code ‘in the fight against the jurists undertaken by Frederick the Great was the disposition prohibiting the judges to quote the opinions of the
scholars and the decisions of the other courts’. M ONATERI ,supra note 8, at p. 82.
27. M ERRYMAN ,La tradizione di Civil Lawnell’analisi di un giurista di common law,
Giuffrè, 1973, pp. 59-60.
2014] THE PROBLEM OF ‘LEGAL GAPS’ 163
of interpreting the law was implicitly ‘returned’
34 to the judiciary
authority.
The very writers of the Code civil, though convinced of the
importance of codification, realized that it would be impossible for them
to collect in a legislative text the answers to all potential judicial
controversies. Portalis, the most influential member of the codifying
team, in hisDiscours préliminaire sur le projet de Code Civil noted that
‘l’office de la loi est de fixer, par de grandes vues, les maxims generals
du droit; d’établir des principles féconds en conséquences, et non de
descendre dans le détail des questions qui peuvent naître sur chaque
materière’.
35 Also, the task of ‘conducting’ the implementation of the
principles identified in the rare and extraordinary cases should have been
left to the judges and the jurists who, as ‘permeated by the spirit of the
laws’, would have been able to fill any possible gap.
Nevertheless, the French legislator simply set forth the disposition
of the mentioned article 4, without inserting in theCode civil any norm
for the purpose of controlling the interpreter’s activity or of suggesting to
the latter criteria to adopt in case of a ‘silent, obscure or insufficient’
law. 36
34. LIPARI (inMorte e trasfigurazione dell’analogia, In Lieberamicorum per Dieter
Henrich, Torino, 2012, pp. 36-37) reminds that Gèny (Méthode d’interprétation et sources en
droitprivépositif, Paris, 1989, n.81 bis.) ‘courageously underlined that the norm of article 4 cannot
demand to subjugate the judge “à ses propres déffaillances, mais, au contraire, lui conférer à
default de toute direction formelle, un pouvoir de decision propre”’.
35. P ORTALIS ,Discours préliminaire sur le projet de Code Civil, (1799); Z WEIGERT &
KOTZ ,supra note 8, at p. 111.
- In spite of the civil code’s lack of a rule which legitimizes the interpreter’s creative task in case of legal gaps, juridical practice clearly highlighted to what extent the judges play an important role in the creation of a rule in case of gap, by using, for this aim, tools and interpretative canons similar to those used in all the other European systems (resort to analogy, to
the general principles etc.). DAVID (I grandi sistemi giuridici contemporanei, Cedam, 1994, 11th
ed., p. 98) reminds us that since 1904, on the occasion of the centenary of theCode civil, the first
president of the French Court of Cassation gave a speech about the interpretation of code with this tone:
When the text, imperatively, is clear and precise and does not produce any misinterpretation, the judge is obliged to bow down and to obey.... But when the text contains some ambiguity, when doubts arise about its meaning and its extent, when, compared to another it can, to a certain extent, be contradicted or reduced, or, on the contrary, developed, I reckon that in that case the judge has the greatest powers of interpretation. He must not insist on searching stubbornly what was the authors’ thought one hundred years ago when writing this or that article. He must ask himself what the same article would be if it was written nowadays. He must tell himself that in front of all the changes occurred in the last century in the fields of the ideas, of customs, of institutions, of the economical and social situation of France, justice and reason impose to adjust, freely and humanly, the law text to the reality and the needs of modern life.
164 TULANE EUROPEAN & CIVIL LAW FORUM [Vol. 29
Such a norm, instead, can be found inAllgemeines Burgerlichers
Gesetzbuch fur die deutche Erblander—ABGB 37 —a codification decided
upon by the empress Maria Theresa and promulgated in 1811 and taking
effect in 1812, after more than fifty years of preparatory studies. 38
Subsection 7 of ABGB
39 orders that, in case of a doubtful or omitted
case, the judges will have the ‘duty’ 40 to decide the case by resorting to
both extensive and analogical interpretation of the laws regulating similar
cases and if this would not suffice, ‘as the case remains doubtful’, by
resorting to principles of Natural Law.
41
Thus the ABGB reflected a firm belief in the autonomous existence
natural law principles stemming directly from Nature and man’s reason
and These are separate from positive law and immanent in social reality.
A similar norm is introduced by article 3, subsection 2 of the
preliminary dispositions to the Civil code of 1865 for the Kingdom of
Italy (‘If a dispute cannot be adjudged with a precise regulation, you
Le Centenarie du Code Civil 1804-1904, p. 27. For an interesting overview on the position of the
French jurists about the topic of ‘the discretional power of the judges’ and the linked topic of the
legal gap in the past and in present, see A LPA ,L’arte di giudicare, 1996, Laterza, p. 10 ff. and
bibliography within.
- In contrast to the Prussian code, the Austrian code only deals with private law.
38. On the long route to the promulgation of the Austrian Civil Code, see J.M. Rainer,La
teoria dell’interpretazione in Portalis e Zeiller, report at the International Conference ARISTEC,
‘Scienza giuridica, interpretazione e sviluppo del diritto europeo’, Rome 9-11 June 2011, at
University of Roma Tre.
Lasst sich ein Rechtfall weder aus den Worten, noch aus natuerlichen sinne eines gesetze entscheiden, so muss auf anliche, in den Gesetzen bestimmt entscheidene Falle, und auf die Grunde anderei damit verwandetengesetze Rucksicht genommen werden. BleibtderRechtsfallnochzweifelhalf; so musssolchermitHinsichtauf die sorgfaltig- gesammelten und reiflicherwogegenUmstandenachdennaturlichenRechtsgrundsatzen- entschidenwerden. [When a case cannot be decided either through the words or the natural sense of the law, attention will be paid to similar cases decided precisely in compliance with laws and the reasons of other laws which show analogy with the above case. If the case is still doubtful, it will have to be decided according to the principle of the Natural Law, after paying attention to the circumstances scrupulously collected and maturely examined.]
See also D E Z AILLER ,Commentario sul codice civile universale austriaco, Milano, 1815.
40. Even here the ‘duty’ to decide the case is imposed to the judge, even ifomissis or
dubius (see art. 4Code Civil).
41. InCommentario sul codice civile universale austriaco (Milano, 1815), De Zailler on
commenting upon the norm, adds:
[S]ince we cannot demand that a civil code, like a system of natural private law should contain all the legal principles and even all the rights deriving from them, similarly the legislator, in order to prevent difficulties and doubts of the judges to whom a similar case would not seem defined in the code, grants them the power to decide it with the principles of the Natural Law, that is according to the philosophy of law....
See also MERRYMAN,supra note 27, at p. 67.
166 TULANE EUROPEAN & CIVIL LAW FORUM [Vol. 29
integration and completion of the law, should be part of the usual task of
jurisprudence, without needing to legitimate it by an express delegation. 47
Moreover, the flexibility of the German system is secured by the
presence within the code of a great number of ‘general clauses’ which,
over the years, ‘like a safety valve... prevented the BGB from exploding
under the pressure of the social changes’. 48
Just twelve years after the BGB, theZivilgesetzbuch or Swiss Civil
Code was promulgated. Article 1 of this code contains one of the best—
known and controversial norms about the method of filling legal gaps.
The Swiss legislator, 49 unlike the French and German legislator, admitted
the incompleteness of the law, and explicitly put into the hands of the
judge the task of filling gaps and indicated the criteria which he or she
must follow.
50
From the beginning this norm was hailed as ‘the answer to the
criticism raised about positivism, the rigid dogmatism of
Begriffjurisprudenz, the rigidity of the legal system established after the
French Revolution’. 51
47. MERRYMAN,supra note 27, at p. 62;see also M ONATERI ,supra note 43: ‘BGB
permeated by the pandects system and even a historical result of that system, does not need to refer explicitly to the conceptual creations of the jurists, since this reference is by tacit agreement already shared by its interpreters’.
48. Z WEIGERT & KOTZ ,supra note 8, at p. 189. On the issue of the relation between
general clauses and legal gaps,see also PATTI - Lacune “sopravvenute”, presunzioni e finzioni: la
difficile ricerca di una norma per l’inseminazione artificiale eterologa, inNuova giur. civ. comm.,
f. 4, 2000, pp. 347-49—where the author notices:
[T]here is no real need of regulation when the case to be disciplined falls into the field of a general clause: the system can even renounce specific prescriptions and opt for a different regulatory technique. The extent of a legal gap must be evaluated also according to the extent of the general clauses in the system.
- The preparation of a code for all the Swiss cantons was confided to Professor Eugen Hubert, who is effectively considered the father of the Swiss civil codification.
The Law is applied to all the juridical matters to which the letter or the sense of its dispositions can be referred. In the case not provided by the law, the judge decides according to the usage and, when failing, according to the rule he would adopt as legislator. He conforms to the most authoritative jurisprudence and doctrine.
Text of the article 1 ZGB translated from the official Italian version, available on the Web site: http://www.admin.ch/ch/i/rs/210/indexpre.html.
51. D E B IASO E F OGLIA ,Introduzione ai codici di diritto privato svizzero, Giappichelli,
1999, p. 22. Truly, as already remarked, the disposition does not seem so innovative since ‘after the decline of legal and conceptual Positivism, it was recognized that a Positive legal order, once all the possibilities of interpretation of the legal text and the analogy are depleted, might still show some gaps which must be filled by the creation of the Law by the judge’. Z WEIGERT & KOTZ ,
supra note 8, at pp. 215-16.
2014] THE PROBLEM OF ‘LEGAL GAPS’ 167
III. THE P ROBLEM OF LEGAL GAPS IN THE I TALIAN LEGAL O RDER:
FROM ARTICLE 3, SUBSECTION 2 OF THE PRELIMINARY DISPOSITIONS OF THE 1865 CIVIL C ODE TO A RTICLE 12, SUBSECTION 2 OF THE PRELIMINARY DISPOSITIONS OF THE 1942 CIVIL CODE
Article 3, subsection 2 of the preliminary dispositions 52 to the 1865
Civil Code introduced into the code a regulation containing ‘the sources’
which the interpreter should use when a dispute could not be resolved by
a precise regulation: first, the analogy and ‘when the case is still
doubtful’, the ‘general principles of Jurisprudence’.
Where the Austrian Civil Code of 1811 (subsection 7 of ABGB)
recalled ‘the principles of the Natural Law’, the Italian code 1865, on the
model of Charles Albert Civil Code of 1838,
53 encourages the interpreter
to refer to the ‘general principles of law’.
Despite the absence of the adjective ‘natural’, this disposition was at
first interpreted by the doctrine
54 as an explicit reference to those
‘principles of justice’ immanent in the ‘natural’ reality, stemming from
nature and the man’s reason and communal to any order.
55
Soon, though, commentators 56 influenced by a new ‘exclusively
historical and positive vision of the legal phenomenon’ unanimously
agreed that ‘general principles of Law’ were not to be regarded as
52. The complete caption is ‘Disposizioni sulla pubblicazione, interpretazione ed
applicazione delle leggi in genere’ [Dispositions on publication, interpretation and application of
the laws—author’s translation].
53. See MERRYMAN,supra note 27. DEL VECCHIO (Sui principi generali del diritto, in
Arch. Giur., I, 1921, pp. 33-37) remarked that the first draft of Charles Albert Code had adopted
the same words as the Austrian legislator, ‘claiming that the doubtful cases should be decided according the principles of Natural Law’ and that ‘although this formula in the draft elaboration raised several objections, we must notice that those objections were not caused by a substantial aversion to that concept, but they tended only to solve the possible danger of its very uncertain interpretation’.
54. D EL V ECCHIO ,supra note 53.
- Some scholars tried to identify in ‘the general principles of the law’ a reference to the
Roman Law or Jus Commune (id. at p. 35 n.2); G ORLA ,supra note 30, at p. 128 n.33, quoting
B RUGI ,Per la storia della giurisprudenza e delle università italiane,Nuovi saggi, 1921, p. 211,
observed that on the basis of the dictate of article 3 of the preliminary dispositions of the Civil Code 1965 ‘the Italian Courts behaved with some freedom and instead of resorting to analogy, they resorted to other elements of persuasion, such as Jus Commune and its authorities (often
quoted in our sentences dating back XIX century and even early XX century)’. See also
G IULIANI ,supra note 28, at p. 417 n.2.
56. In a critical sense, see D EL V ECCHIO ,supra note 53, at p. 33 ff., and its bibliography
in it, in particular p. 35 n.2.
2014] THE PROBLEM OF ‘LEGAL GAPS’ 169
If it is true that each interpreting activity includes a certain margin
of ‘creativity’, 63 still it is different to delegate the power to ‘create new
legal rules’.
64 In fact, interpretation can be used in order to prevent or
avoid a gap, ‘meaning that the available normative texts can be
interpreted in such a way that the legal gap could never arise’ or, vice
versa, it can produce a gap, ‘meaning that the available normative texts
could be interpreted in such a way that a legal gap could arise’.
Interpretation, though, ‘cannot fill legal gaps: if the gap arises, it arises
only after the interpretation. In order to fill that gap, we need to integrate
the law, that is, we need to create a new law’. 65
Article 12 of the preliminary dispositions to the Civil Code seems
totally consistent with this pattern: subsection 1 establishes a series of
hermeneutical criteria
66 thanks to which the interpreter can apply the
same norm to numerous legal situations; subsection 2, by introducing the
criterion of analogy (similarity), permits the judge to produce a new
norm starting from a formulated norm (or, in the case of general
formulation of decisions about single cases.... The activity of interpretation of the theorists, thus, peters out in abstract and hypothetical considerations and it does not create any new rule, while, on the contrary, the activity of the judge... results in the
formulation of a “new norm”, that is,... in the formulation of adictum endowed with
authority.
Interpretazione della legge civile e prassi delle corti, inRiv. Dir. Civ., n.4, 2002, p. 531 ff., in part.
pp. 532-33. According to Marinelli, we must distinguish between ‘authority-prestige’ and ‘authority-power’: ‘[T]he authority of the doctrine nowadays peters out in terms of authority- prestige. The judge’s deliberations can have, in turn, a greater or smaller authority-prestige, but
they are mainly characterized by their authority-power.’ M ARINELLI ,supra note 11, at p. 154.
63. See C ORSALE ,supra note 2, at p. 269 (‘[W]e can affirm that the concrete activity of
the juridical operators (and not only that of jurists, but also that of the common users of the Law) is a daily work of integration of the order, which takes place both for the cases foreseen by the legal dispositions and for those not foreseen.’).
64. BARAK,La discrezionalità del giudice, Giuffrè, 1995, p. 89, affirms:
It is necessary to distinguish between the hypothesis when there is a legislative rule whose field of application is unknown and definable only by means of practice of discretion and the hypothesis when discretion is necessary to establish the rule itself.... Is discretion in interpreting a norm identical to that practiced in creating a legislative rule which confers the judge such nomofilachian [sic] power?.
65. G UASTINI ,Il diritto come linguaggio, Giappichelli, 2001, pp. 164-65.
66. A LPA ,L’analogia, inTrattato di diritto civile, directed by SACCO,Le fonti del diritto
italiano, Vol. II,Le Fonti non scritte e l’interpretazione, Utet, 1999, p. 297 ff., notices:
[T]he interpretative criteria pointed to in article 12 are considered as exhaustive and
contained into ahortus conclusus [enclosed garden], meaning that the interpreter
cannot apply different [onwa] other than those foreseen in the disposition. This precept is soon contradicted when it is the case of the so-called historic interpretation (not contemplated in the list of criteria in article 12- preliminary article).... Thus it is clear that next to the main criteria foreseen by the preliminary articles there are also “subsidiary criteria”, such as (for instance) material deducted from the preliminary works....
170 TULANE EUROPEAN & CIVIL LAW FORUM [Vol. 29
principles, from numerous norms), once it is clear that the use of the
criteria in subsection 1 could not solve the case. 67
V. ANALOGY AND GENERAL PRINCIPLES AS TOOLS OF SELF -
I NTEGRATION OF THE CODAL SYSTEM
Norms like that contained in the article 12 of the preliminary
dispositions to the Italian Civil Code were described by some authors 68 as
closing norms of the system, thanks to which legal gaps could no longer
be contemplated.
This theory is based on the fact that the legislative delegation to the
judge creates a ‘decentralization in the creation of the Law’ and helps
exclude gaps. The law, although it does not directly regulate the omitted
case through a form of subordinate lawmaking.
On closer inspection, the problem is framed only in its ‘formal’
aspects, leaving unresolved the substantial issues. The debate on the
legal gaps does not really seem to touch the issue whether the systems
can be defined as ‘formally completed’ as opposed to ‘substantially
67. C ARCATERRA , entry:Analogia(teoria generale), inEnciclopedia del diritto Treccani,
vol. II, Roma 1988, p. 1 ff. The author remarks:
[A] deeper analysis might reveal that in reality such a clear cut distinction (on one side, hermeneutical criteria, on the other, analogy) fades: if this happens, if the same criterion is both a hermeneutical criterion and an analogical criterion, then clear and serious difficulties arise when distinguishing interpretation and analogy and their results.
This observation clearly refers to the distinction, sometimes denied, between an extensive interpretation and analogy: in both, ‘the strictly literary meaning of a normative statement is extended and thus defined both as interpretative extension and analogical extension’. Analogy, as already said, however, is a tool apt to fill the legal gaps by means of the criterion of similarity; conversely, extensive interpretation is a tool which can be used in order to ‘prevent’ legal gaps
(see Guastini,supra note 65), by means of normal hermeneutical criteria used to determine what
the norm establishes, and not to fill the gaps: ‘in the case of extensive interpretation, since it must determine the content of the norm in question, the extension falls within it, while in the case of analogy, since it must determine an unforeseen result not implicit in the norm, the extension
overcomes this norm by producing another’. The same idea is found in Bianca,La norma
giuridica e i soggetti, inTrattato di diritto civile, I, Giuffrè, 1990, p. 103, where the author
remarks the importance of the distinction between analogy and extensive interpretation since penal and exceptional norms are not susceptible to analogy (art. 14 preliminary dispositions)
while they are susceptible to extensive interpretation. On this topic, see also A LPA ,I precedenti.
La formazione giurisprudenziale del diritto civile, inGiurisprudenza sistematica di diritto civile e
commerciale, Utet, 2000, p. 35 ff. It has also been noticed (G IULIANI ,supra note 28, at p. 421
ff.) that the ‘preconceived reasoning’ of an ‘interpretative procedure which operates by degrees where each step is preclusive of the following’ has problems ‘in the reality of Law applications
... since the initial step, where the very same “principles of the clear text”—literal interpretation—is degraded to mere juridical argumentation, which needs verifying compared to other principles.’
68. M OOR ,Sulla questione delle lacune nel diritto, cit., p. 312 ff.
172 TULANE EUROPEAN & CIVIL LAW FORUM [Vol. 29
In the second case, the negative outcome of the judgment of
similarity 71 requires further recourse to the general principles of the legal
system: the identification of the principle to be applied is implemented,
according to most scholars, 72 through a procedure of abstraction, starting
from the analysis of a range of legal rules in order to find a far-reaching
principle or a series of principles (hence called ‘general principles of the
legal system’) which can be applied to numerous cases. ‘Moreover,
broadly speaking, the principles themselves are not apt to offer the
solution to specific disputes: they mostly require, as commonly said,
“objectification”’. 73 Hence it is assumed that the procedure needs a first
phase of ‘abstraction’ of the principle from a range of expressed norms
and a second phase of ‘objectification’ of the principle whereby it
becomes the solution to the dispute to which it is referred.
The difference between the legis analogy and the juris analogy
would be reduced, according to a simplified view of both procedures, to
a different grade
74 of abstraction of the inferred principle, directly
proportioned to the extent of the starting point of the same process:
‘[W]hereaslegis analogy extracts a general (unexpressed) principle from
a single norm,juris analogy extracts inductively a general (unexpressed)
principle from numerous norms.’
75 By this reasoning, juris analogy
would also be a tool of self-integration 76 of the system, since the general
principles may be traced to preexisting norms of positive law subjected to
a not clearly identified ‘procedure of abstraction’. 77
- Indeed, if this judgement had a positive result, the omitted case would be resolved by
analogylegis.
72. C ARNELUTTI ,Teoria generale del diritto, Società editrice del Foro Italiano, 1951, p.
85 ff.; B OBBIO,Analogia, inNovissimo Digesto Italiano, IX, Utet, 1957, p. 601 ff., mentions a
relation of ‘subsumption’ between an unregulated case and its regulating principle.
73. G UASTINI ,supra note 70, at p. 299.
74. C ARNELUTTI ,supra note 72, at p. 87 ff.; G UASTINI ,supra note 70, at p. 299 n.76.
According to G IANFORMAGGIO,Analogia, inNovissimo Digesto Italiano, IV ed., Utet, p. 320 ff.,
also the extensive interpretation is supported by a similar procedure, so that we can have ‘an ordered sequence of three justificative procedures, from the simplest to the most complex, each of them blends into the other: extensive interpretation, analogical interpretation, resort to the
general principles of Law’,id. at p. 327.
75. C ARCATERRA ,supra note 67, at pp. 8-9.
76. The (Italian) terminology is taken by CARNELUTTI,supra note 72, at p. 87, who was
the first to distinguish between self-integration and hetero-integration of the juridical systems: self-integration occurs when the interpreter is obliged not to cross the ‘limits’ of the referential juridical order when filling the normative gaps; in contrast, when the interpreter is authorized to search for the ‘solution’ of an unresolved case by resorting to principles and values traceable beyond the juridical order in which he operates, it will be called a method of hetero-integration of the system. According to the author, analogy is always a ‘static and conservative’ tool of self- integration of system.
77. G UASTINI ,supra note 70, at p. 294, speaks also of ‘induction’, ‘generalization’ and
‘universalization’; conversely, S ACCO,L’interpretazione, inTrattato di diritto civile, directed by
2014] THE PROBLEM OF ‘LEGAL GAPS’ 173
Article 12, subsection 2, refers to ‘the general principles of the State
legal system’, a formula which, ‘as commonly known by the doctrine
(and according to the results of the preliminary works), is intended to
preclude the judge [from] any form of hetero-integration of the
incomplete law.’
78 The judge is authorized to fill the legal gaps by using
the simple principles of positive law expressed or inferred by dispositions
in to the legal system of the Italian State.
A. Self-Integration and Hetero-Integration: Some Critical
Observations
The previous interpretation of the dispositions in the article 12,
though formally correct, is based on a series of presuppositions which a
more concrete analysis would seem inevitably to put into question.
Firstly, it was widely noticed
79 that analogy as a logical procedure
80
is really an ‘argumentative’ tool, 81 adopted by the judges to justify the
decision once it was made on the basis of a different decisional
procedure.
The idea that judicial decisions are the result of a mere rational
analysis, performed in a logical-deductive or logical-inductive way,
82 has
Sacco,Le fonti del diritto italiano, Vol. II,Le Fonti non scritte e l’interpretazione, Utet, 1999, p.
287 ff.
78. G UASTINI ,supra note 70, at p. 286. He adds:
The judge, when applying a ‘general principle’, in compliance with the article 12, subsection 2, preliminary dispositions of the civil code, must demonstrate persuasively that the principle in question is traceable to a positive disposition which must be valid as much as its meaning and its (implicit) foundation. Without this, however, there will be resort to Cassation for ‘violation or false application of norms of Law’ (article 360 Code of Civil Procedure).
Id.
79. L UBERTO,La crisi della concezione giuspositivistica delle fonti del diritto e le nuove
metanorme sulla produzione, in A RTOSI , B ONGIOVANNI , V IDA ,Problemi della produzione e
dell’attuazionenormativa, vol. II, 2001, Bologna, pp. 135-86,available at http://www.cirfid.unibo.
it/murst40-97/40-97/SezioneII/ParteIII/ 3.2/Luberto_new.doc; A LPA ,supra note 66, at p. 24 ff.,
where there are wide bibliographical references to other scholars of this issue.
80. See Cass. November 1965, n. 2404 inRep. Foro It., VoceLeggi, regolamenti, decreti.
Our hypothesis, supported by authoritative writers (Z AGREBELSKY ,Il diritto mite,
Torino, 1996) is that logical tools like analogy are just argumentative resources for the interpreter, who independently arrives at the rule of the case from the method, but referring later to them in order to anchor his decision and demonstrate that the norm taken from the order is possible, that is justifiable in a given order.
L UBERTO,supra note 79. On the importance of argumentation in the juridical interpretation,
see also S ACCO ,L’interpretazione,supra note 70, at p. 273 ff.
82. G IULIANI ,supra note 28, at p. 430, notices that ‘the techniques of the analogical
reasoning used in jurisprudence make problematic every pretention of a doctrinal explanation, in a time characterized by the passage from the traditional configuration in deductive terms to the
2014] THE PROBLEM OF ‘LEGAL GAPS’ 175
correct solution, most of the times chosen among many possible
alternatives, 87 is the result of a fusion between a value judgment, 88
regulated along juridical and/or extra-juridical parameters (e.g., the
importance and the prevalence of the interests at stake in the light of the
code and/or the changeable needs of society) and an evaluation on the
juridical-social consequences of the adopted decision (pragmatic or
consequential reasoning
89 ). The adopted solution, thus, will be the result of the practice of
subjectivity by the judge,
90 but it will never be said to be the result of
mere free will. 91 After the phase of identification of the rule to be applied
to the undecided case is over, the phase of justification of the choice will
follow, so that the adopted decision will be said to be in accordance with
the principles and the values expressed by the legal system of reference.
92
87. TARUFFO,La motivazione della sentenza civile, Padova, 1975, p. 213 ff.
88. According to TARUFFO,supra note 84, at p. 326 ff., the judge, when giving a value
judgement, can (1) refer to values and standards of evaluation existing in the society or in the
field of predetermined social groups (reference to E NGHISC ,Introduzione al pensiero giuridico,
trad. ed. by Baratta, Giuffrè), (2) implement individual values of both parts or of one of the two, (3) personally establish a standard of evaluation, and in this case, it will be necessary to identify the extreme limit of the practice of this creative power consisting, for instance, in the compatibility of his practice with the principles of the positive law.
89. According to A LPA ,supra note 66, at p. 31, the consequentialist technique is really
widespread also in the civil law countries, but in the common law countries, it is quite old. The same economic analysis of the law is an example, since it is a decision-making technique based on the analysis of costs and profits resulting from any possible solution. On this topic, see
M ENGONI ,L’argomentazione orientata alle conseguenze, inInterpretazione e diritto giudiziale, a
cura di Bessone, I, Giappichelli, 1999, p. 179 ff.
90. TARUFFO,supra note 84, at p. 342, speaks of creativity which is translated into value
judgments and in the choice of the relative standards of evaluation;see also P ICARDI ,La funzione
del giudice nell’interpretazione e nell’applicazione del diritto, in http://www.giustiziacarita.it/
archmag/profpicar.htm.
91. According to S CHLESINGER ,supra note 62, at pp. 531-40:
[T]e discretional power is not a symptom of fantasy or tantrum... : but just because the way in which the power of the judge could be practiced is feared, society demands from the Courts the proof of sagacity, wisdom and profound attention to the impact of their decisions on the people involved and on the future cases.
According to C APPELLETTI ,Giudici Legislatori, Giuffrè, 1984, p. 13:
[D]iscretion does not necessarily mean arbitrariness; and the judge, although he is inevitably the creator of the Law, is not necessarily a totally free creator. In fact, every civilized juridical system has tried to designate and apply some limits to the judicial freedom: trial and substantial limits... The real topic is not on the alternative creativity-not creativity, but on the extent of creativity and on the methods, limits and legitimate of the judicial creativity.
In other words, any juridical system is not closed to the needs of the changing reality, but, at the same time, every juridical system can accept new solutions, only by inserting them in the system.... The value judgment at the foundation of the decision is juridically relevant only if it can be made universal, that is, if it can be accepted for all
176 TULANE EUROPEAN & CIVIL LAW FORUM [Vol. 29
Only when the decision can go beyond this second phase will the value
judgment in it be defined as ‘judicially relevant’ and then suitable to
produce the juridical rule for filling the legal gap.
93
Moreover, if this does not occur, that is, if the decision shows its
‘unique’ and scarcely persuasive characteristic in its choice and
motivations, it may be discarded in the following steps of judgment, or
overturned in Cassation due to ‘violation or false application of law.’
94
Adherence to the legal provision is nevertheless guaranteed in the
phase of justification or motivation of the judgment. In it, the judge will
tend to justify his choice by invoking an analogical argument, through the
identification of a similar case whose regulation implies the adherence to
the same value judgment accepted by the judge. Or, if this is not possible,
the judge will justify his decision by means of general principles in the
legal system which may be extended to include (and justify) the new
solution.
95
In this way, the judge conducts the indispensable task of adjusting
the law to a new social need by actualizing the content of the principles,
expressed or unexpressed, which constitute the body of the legal system.
Such activity of integration can be described as a form of ‘hetero-
integration’ of the law, in which it is emphasized that the criteria used
cannot always be taken from norms ‘formally in force within the
system.’
96 It may also be described, however, as a form of ‘self-
integration’ of the law, since those criteria must necessarily find their
position and ‘justification’ within the system.
97
On the other hand, as noted by Francesco Carnelutti: 98
Placed on the logical field, self-integration and hetero-integration are at two extremes of an antithesis:... In concrete [terms], even this distance reduces a lot. As the research of the principle becomes laborious, thus passing from legis analogy to juris analogy, the certainty disappears and justice releases from its bonds. The more general is the legal principle, the
the similar cases, which, in a system of Positive Law, can only happen by changing the practical or value judgment into a normative special case.
A LPA ,supra note 66, at pp. 28-29.
93. On this topic, see also ROSELLI ,Dovere di conoscere la giurisprudenza, in
Interpretazione e diritto giudiziale, a cura di Bessone, I, Giappichelli, pp. 265-77.
- Article 360, n.3, Code of Civil Procedure.
95. See B ETTI ,supra note 57, at p. 54 ff., who speaks of ‘a force of expansion, not simply
logical, but axiological, able to overcome the legislative solutions determined by their evaluations and, for this reason, able to surpass the simple positive law’.
96. C ORSALE ,supra note 2, at p. 270.
97. Id.,op. ult. cit., p. 270, believes that such criteria can be derived from the order when
this is intended ‘as expression of the culture of a social group’.
98. C ARNELUTTI ,supra note 72, at p. 91.
