Review article
https://doi.org/10.47960/2637-2495.2020.28.106
THE INTERPRETATION, LEGAL GAPS AND PRINCPLE OF LEGALITY
Ivan Tomić
orcid.org/0000-0003-2058-5272
; Pravni fakultet Sveučilišta u Mostaru
Abstract
In this article, author analyzes relation between interpretation, legal gaps and principle of legality. The interpretation is one stage in application of legal norm. Legal norms are prescribed abstractly for an indefinite number of cases. Therefore, during the process of applying legal norm, as a previous request, there is request for interpretation. The interpreter’s task is to determine possible content of legal norm and to apply these meaning which it fits the best in concrete case. The Jurisprudence has developed rules/methods of interpretation to be applied in interpretation process. Interpretation process requires use a several methods of interpretation in order to determine which of possible meaning is the best in concrete case. However, apart from
determining possible content of legal norm, in the legal system sometimes appear such cases that means legal gap. In those cases, interpreter should co-create existent legal norm to make it applicable without violation principle of legality. Also, principle of legality has been discussed by European court of human rights. In this paper author suggest that the court use discretionary powers but only if such discretionary decisions do not violate fundamental legal principles of legal system.
Keywords
Hrčak ID:
250161
URI
Publication date:
23.12.2020.
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