Zyglewicz Tomasz, Against the Input View of Legal Gaps

Are there gaps in Polish law ? Of course – at the very least the legal text presupposes their existence . What role do they play in the judicial practice? There are two major lines of response to this question. First, and fairly uncontroversially, legal gaps function within the context of de lege ferenda proposals. To say that there is a gap in the law is to draw the legislators’ attention to a deficiency in the legal text and call for its rectification by an appropriate legislative measure. Since in this picture the legal gaps are merely results of legal interpretation, I will call it the output view of legal gaps.

Second, and more controversially, legal gaps are sometimes taken to play the role of premises in judicial reasoning. In particular, the identification of a gap in the law is thought to justify the deployment of an otherwise impermissible method of interpretation. For instance, Article 300 of Polish Labour Code instructs the interpreter to draw an analogy with the Civil...