Regla de clausura y contingencia del derecho

sobre el positivismo jurídico y la existencia de lagunas normativas

Abstract

The aim of this paper is to defend the thesis of the possible existence of normative gaps in legal systems within the theoretical framework of legal positivism. Different arguments developed to deny this possibility will be presented and critically analyzed, especially two of them which were upheld by one of the most prominent representatives of legal positivism: Hans Kelsen. The first one is based on the principie of prohibition, and the second -which was considered by Alchourrón and Bulygin as a variant of the first, i.e., an argument based on the principie of prohibition interpreted in the light of the notion of weak permission-, that here will be conceived of as different in nature, i.e., based on the (necessary) existence of a closure rule in all legal systems, and thus introducing a novel approach to discuss the issue. It will be concluded not only that these arguments fail to disprove the possibility of normative gaps in legal systems, but also that this possibility is a consequence that necessarily follows from the very postulates of legal positivism.