Against the Input View of Legal Gaps

Keywords: legal gaps, discretion, the input view, judicial formalism

Abstract: The goal of this paper is to identify and criticize an intuitive way of thinking about gaps in the law, which I dub “the input view”. In this approach, legal gaps play the role of premises in legal reasoning in the sense that they trigger the application of, otherwise impermissible, methods of interpretation. The input view thus rests on a sharp distinction between the following two stages of legal interpretation: identification of a legal gap and filling it. The central motivation for embracing this view is to limit the scope of judicial discretion. I argue that the input view fails by its own lights by showing a class of cases in which it actually increases the scope of judicial discretion. My argument exploits the observation that, on any account of legal gaps available to the proponent of the input view, there will be cases in which a judge has discretion to say whether it involves a legal gap or not.