lacuna
a gap or emptiness in the legal orderno proper rule to be applied, law cannot be found
non liquet
no applicable law, judge cannot dismiss the case
common law
anglo-saxonthe judge finds the rule in the common lawif there is no statute or precedent, the judge has the power to create a new law
civil law
roman and napoleonicthe judge find the rule in the statutory law and law bookshe cannot create a new rule, legal texts needed
analogia
a lacuna is present and the judge applies the norms of a similar caseanalogia legis and iuris
analogia legis
finding the rule in similar statutory disposition, must be present in law books
analogia iuris
finding the rules in general principles established in the constitution
antinomia
there isa contradiction or conflict
four criteria to solve an antinomia
chronologicalhierarchicalof specialtyof attribution
chronological
based on timewhen 2 sources of law are of equal force / levelthe new rule repeals the old one
hierarchical
based on the degree of the sourcewhen rules are not of equal forcethe lower rule is annulled (not repealed)
of sepcialty
based on teh relationship between general and particularspecific does not repeal the generalthey are co-applicable, both are forcible and applied in their own contexts
of attribution
based on a matter of attributed legislative power between different lawmakersnot used in unitary states (only 1 lawmaker)EU vs US (in US it would be annulled if it went against the rules)