Linda Tvrdíková
Author’s affiliation: Faculty of Law, Masaryk University Brno

Theory of legal gaps and the inconsistent approach to them in judicial practice

Jurisprudence 6/2019 Section: Articles Page: 31–42

Keywords: theory of legal gaps, gaps in the law, judicial practice

Abstract: The author deals with the gaps in law. First of all, the author focuses on the theoretical knowledge of the theory of legal gaps where different types of gaps are classified. The author also answers various questions, such as how to find these gaps, how they are created, and how to deal with them according to the theoreticians. It is the philosophical-legal definition of the theory of legal gaps. In the next part, the theoretical knowledge is applied and some of the court decisions are analysed. The approach of the courts to the gaps is evaluated and whether the courts have correctly identified and classified these gaps is examined. The author arrives at the conclusion that the courts sometimes classify the gap wrongly and that the Constitutional Court of the Czech Republic approaches them inconsistently.