Jurisprudence And Its Impact on Filling the Legislative Void

Abstract

Legal Void or Silence of the Law is the absence of a legal provision that governs a dispute brought before a judge. The judge cannot abstain from making a judgment in a case on the grounds of the law being unclear or lacking a specific provision. Otherwise, the judge would be considered derelict in upholding justice. Therefore, Article 30 of the Iraqi Civil Procedure Law No. 83 of 1969, as amended, does not allow any court to abstain from making a judgment on the basis of legal ambiguity or absence of text. In such cases, the judge has to resort to judicial interpretation to address the legislative void.

 Legislative vacuum becomes evident in practical reality when there is absence of a legal text governing a new situation or when the ruling on a matter is unclear. This necessitates the entry of the ambiguous text into the realm of legislative vacuum, and it then becomes the responsibility of the judge to utilize mechanisms to fill the legislative vacuum. These mechanisms include analogy, legal tricks, and justice, with the aim of addressing the legislative gap and bridging the divide between the text's inadequacy in addressing the disputed situation and the developments occurring in real life. This is achieved by adapting legal texts and granting them broader provisions or by drawing on legislative wisdom from the text or its intended objectives to reach a fair judgment.