Legislative Omissions in Constitutional Jurisprudence: Ukrainian Practice in a Comparative View

Abstract

Every legal system contains, to a greater or lesser extent, legal relationships that are not regulated. However, they ought to be regulated by general legal norms and, for this reason, they constitute gaps in the law. Owing to their importance and their connection with the principle of constitutionality, legislative omissions have become the subject of intensive study in contemporary legal doctrine. In analysing the development of the functions of Constitutional Courts, increasing reference has been made not only to their role as a “negative legislator” but also as a “positive legislator”, a role that bodies exercising constitutional review are progressively finding easier to perform. Leaving aside evolutionary justifications (“function creates the organ”, in which necessity confers power), intrusion into the sphere of the legislator’s freedom of discretion is generally alarming (at least in theoretical terms). The legislator is responsible for enacting laws and, moreover, for deciding when they should be adopted.