Antinomies and Gaps

Antinomies and gaps represent, at the same time, the bêtes noires and the benchmark of practical jurists and legal methodologists in the Civil Law world. No practical jurist (be s/ he an attorney, a judge, or a legal academic) is adequately equipped (and fit) to the job, unless s/ he knows how to identify and cope with them. Likewise, no treatise on legal interpretation, no methodological primer, is worth the while, unless it provides readers with an adequate account of the twin topics— or, at least, makes a recognisable effort to that goal. In the present chapter, we propose to offer an outline of what we regard as a not idle coping with antinomies and gaps, taking stock of Civil Law methodological tradition. Such a coping, as we understand it, requires to deal with three related problems: first, the conceptual and typological problem about the notion and variety of antinomies and gaps, respectively; second, the identification problem, which requires looking at antinomies and gaps from the standpoint of legal interpretation; third, the repair problem, which concerns the ways of overcoming antinomies and gaps, once they have been identified.