gaps in the law
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Orlando Cruz
Victor Forberger
August 13, 2001
Gaps in the law, according to David Friedrich, occur when there are formal rules of law, but the application of those laws by legal institutions ignores what the law prescribes. The "discretion of decision making" by legal institutions alongside social influences of these institutions is conducive to the persistence of gaps in our society. Friedrich's contention that gaps are present throughout our legal system is applicable in the analysis of a variety of legal issues.
Societal attitudes toward Prohibition illustrate a situation where a gap in law could easily exist. In "The face on the barroom floor" a liberal interpretation of the story reveals that prohibition was not only responsible for widespread illegal alcohol operations, but also of countless social problems, especially with regard to poor people. Thus, the argument for Shorty's heinous assault on Fancy dismisses the idea of Shorty as an evil and immoral person, instead his behavior becomes attributable to the harsh reality of prohibition on the poor. Applying the formal rule of law and sentencing Shorty to twenty to life is by far too undeserving of a punishment for a man in his situation. In truth, factors outside of Shorty's own control (maybe too much salt on the pretzel) must be to blame for his action.
Hendrik Hartog contends there are problems with the notion that gaps exist in law. One of the problems with the analysis behind the gap in law according to Hartog concerns the assumption of an existing norm that is governable in some form or another by social controls...