Vol 20 No 2 (2020)
Essays

Mind the (Legal) Gap. Completeness and Closure of Normative Systems

Andrea Barca
Tarello institute for the Philosophy of Law, University of Genoa
Published December 22, 2020
Keywords
  • Normative Systems,
  • Principle of Prohibition,
  • Completeness,
  • Legal gaps,
  • Regulative and Constitutive Norms

Abstract

In Normative Systems, Alchourrón and Bulygin showed that the alleged necessary completeness of any legal order cannot be grounded on the so-called “principle of prohibition” (according to which everything that is not expressly forbidden is, implicitly, permitted). In recent works, Ruiz Manero and Bayón have argued that this principle (once properly reinterpreted) expresses a (true) belief shared by the majority of contemporary lawyers, namely that any legal system is “metonymically” complete (because secondary systems – i.e. sets of norms of adjudication – are always complete).

In this work, I examine some arguments in favor of the necessary completeness of secondary systems. My thesis is that secondary systems are not necessarily (for logical and conceptual reasons) complete; the contrary view is, in my opinion, based on the failure to differentiate between: (i) either norms and norm propositions or (ii) regulative and constitutive norms.