An Analysis of Some Juristic Techniques for Handling Systematic Defects in the Law

Abstract

The contribution carries out an analysis of some of the main techniques used by legal scholars in order to systematize the law, i.e. to provide it with a systematic character. In particular, the contribution first reconstructs some of the juristic operations consisting in deriving (deductively or not) implicit norms from expressed ones. It then goes on to analyze the operations consisting in reformulating a certain set of norms, singling out the “founding” elements of a normative system, highlighting the formal and axiological characteristics, and suggesting, if necessary, the expulsion, from the normative set, of the norms that do not allow this set to have a genuinely systematic nature. Then, the paper carefully examines, in the light of the conceptual dichotomy first/second interpretation, the systematizing tools employed by jurists in order to create, avoid, or ascertain systematic defects of the law, such as normative gaps and inconsistencies. The operations consisting in ordering legal materials in light of a set of underlying principles are finally examined.