This question was closed without grading. Reason: Other
Mar 28, 2014 13:33
10 yrs ago
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Latin term
Cyprus
English, not translationese
Native in: English (Variant: British) 
Works in: Turkish to English, German to English
lacuna intra legem
Latin to English
Law/Patents
Law (general)
A distinction is drawn between a “lacuna intra legem” where the law makes provision for a certain matter but is silent on certain issues that need to be addressed in order to resolve the case at hand (an example of this in Turkish law is where the Civil Code permits a person to apply to change their name, but only if there is good reason for doing so, but does not specify what constitutes good reason and leaves this to the discretion of the judge) and a “lacuna praeter legem”, where the law makes no provision at all for the matter.
When trying to find the accepted English equivalents of these terms, it appears that they are mainly used with reference to the United Nations Convention on Contracts for the International Sale of Goods (CISG), and, in this context, the pair “external/internal gap” is used synonymously with “lacuna intra legem/ praeter legem”, as in, for example:
‘A synonym for a “lacuna intra legem” is an “external gap” or an “apparent/obvious gap”. The opposite of a “lacuna intra legem” is a so-called “lacuna praeter legem”, an “internal gap” or a “concealed/hidden gap”.’
CISG Methodology edited by André Janssen, Olaf Meyer, page 264
http://books.google.com.cy/books?id=LQtxs2NbipkC&pg=PA264&lp...
What puzzles me is that this should surely be the other way round. Etymologically, “intra legem” means “within the law”, and logically we are dealing with a gap that is internal to the law, so surely this should be an “internal gap” and not an external one.
I would be grateful if anybody could clear this up for me.
When trying to find the accepted English equivalents of these terms, it appears that they are mainly used with reference to the United Nations Convention on Contracts for the International Sale of Goods (CISG), and, in this context, the pair “external/internal gap” is used synonymously with “lacuna intra legem/ praeter legem”, as in, for example:
‘A synonym for a “lacuna intra legem” is an “external gap” or an “apparent/obvious gap”. The opposite of a “lacuna intra legem” is a so-called “lacuna praeter legem”, an “internal gap” or a “concealed/hidden gap”.’
CISG Methodology edited by André Janssen, Olaf Meyer, page 264
http://books.google.com.cy/books?id=LQtxs2NbipkC&pg=PA264&lp...
What puzzles me is that this should surely be the other way round. Etymologically, “intra legem” means “within the law”, and logically we are dealing with a gap that is internal to the law, so surely this should be an “internal gap” and not an external one.
I would be grateful if anybody could clear this up for me.
Proposed translations
(English)
| 5 +1 | a gap within the law |
Stephen C. Farrand
|
| 4 | loophole in the law |
Joseph Brazauskas
|
Proposed translations
+1
42 mins
Stephen C. Farrand
United States
United States
Native in English
United States
Experienced. Literate. Thorough.
Native in: English 
Works in: Latin to English, Greek (Ancient) to English, Russian to English
Related KudoZ points
:
4
a gap within the law
My answer concerns the Latin phrases only, not their use in this legal context. You are correct-- a lacuna is literally a pond, puddle or ditch; figuratively, a gap or lack. lacuna praeter legem literally means "a gap beside/apart from the law".
This is the first case I've ever come across where--apparently--the legal use of a Latin phrase is the opposite of its meaning in Latin qua Latin.
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Note added at 1 hr (2014-03-28 15:02:55 GMT)
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In response to Mr. Drayton's note, it seems to me we are up against the lack of articles in Latin. Two sub-categories of the category "gap within the law": 1) "gap within a (particular) law"; 2) "gap external to a (particular) law".
This is the first case I've ever come across where--apparently--the legal use of a Latin phrase is the opposite of its meaning in Latin qua Latin.
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Note added at 1 hr (2014-03-28 15:02:55 GMT)
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In response to Mr. Drayton's note, it seems to me we are up against the lack of articles in Latin. Two sub-categories of the category "gap within the law": 1) "gap within a (particular) law"; 2) "gap external to a (particular) law".
Note from asker:
| The trouble is that in legal discourse, “lacuna intra legem” and “lacuna praeter legem” are both considered to be sub-categories of "gap within the law". |
1 hr
Joseph Brazauskas
United States
United States
Native in English
United States
When You Want It Done Right
Native in: English (Variant: British) , Spanish (Variant: Standard-Spain)
Works in: Latin to English, English to Latin, Greek (Ancient) to English, and 23 more.
Related KudoZ points
:
26
loophole in the law
Literally 'hole (I.e., defect) within the law'. A metaphorical use, cf. Lewis & Short, s.v. lacuna II. 'Lacuna praeter legem' is an 'exception to the law', i.e., a clause in the law which exempts certain specific categories of persons, things, or actions from some legal liability.
Note from asker:
| My question is quite specifically about legal terminology. The terms 'lacuna', 'gap' and 'loophole' are pretty much synonymous in legal discourse, and the term I am asking about is one of a pair used to describe two opposing sub-categories. "Lacuna praeter legem", as i understand it, does not have the meaning scribed to it by Lewis & Short, but describes a situation where the law is entirely silent. The main thing that is puzzling me is that the terms "external/internal gap" are used in texts discussing the CISG, but they appear to me to be matched with the wrong Latin cognates. If "lacuna intra legem" was paired with "internal gap", this would make sense to me, and the problem would be solved, but the opposite is the case. |
Reference comments
9 mins
Reference:
finding
http://www.cisg.law.pace.edu/cisg/biblio/1ferrari.html
However, the peril of diverging applications of the Vienna Sales Convention is not totally cured by the introduction of those provisions because they do not identify a method of interpretation or gap-filling, but only a goal -- the promotion of uniformity.[29] The rule to be applied in cases of gaps, for example, does not identify any helpful criterion to determine in concreto when a gap is considered a lacuna intra legem, i.e., the matter is outside the scope of the Convention, as opposed to a lacuna praeter legem, i.e., the Convention applies to the issue but does not expressly resolve it. This problem is most important in determining the exact sphere of application of the Convention.[30]
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Note added at 11 mins (2014-03-28 13:45:18 GMT)
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and
page 5 here
http://books.google.co.uk/books?id=F8CeAgAAQBAJ&pg=PA5&lpg=P...
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Note added at 12 mins (2014-03-28 13:46:09 GMT)
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..excluded from the sphere of application of the Convention....
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Note added at 14 mins (2014-03-28 13:47:26 GMT)
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I think I would avoid using "gap" and give a brief gist of the meaning as in the quoted texts above
However, the peril of diverging applications of the Vienna Sales Convention is not totally cured by the introduction of those provisions because they do not identify a method of interpretation or gap-filling, but only a goal -- the promotion of uniformity.[29] The rule to be applied in cases of gaps, for example, does not identify any helpful criterion to determine in concreto when a gap is considered a lacuna intra legem, i.e., the matter is outside the scope of the Convention, as opposed to a lacuna praeter legem, i.e., the Convention applies to the issue but does not expressly resolve it. This problem is most important in determining the exact sphere of application of the Convention.[30]
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Note added at 11 mins (2014-03-28 13:45:18 GMT)
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and
page 5 here
http://books.google.co.uk/books?id=F8CeAgAAQBAJ&pg=PA5&lpg=P...
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Note added at 12 mins (2014-03-28 13:46:09 GMT)
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..excluded from the sphere of application of the Convention....
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Note added at 14 mins (2014-03-28 13:47:26 GMT)
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I think I would avoid using "gap" and give a brief gist of the meaning as in the quoted texts above
Discussion
"By their scope, legal gaps can be “complete” or “partial”. In case of a complete legal gap, there is no provision at all pertaining to the case to be judged upon. A partial legal gap is one where an existing provision is incomplete."
http://www.confeuconstco.org/reports/rep-xiv/report_Hungary_...
A literal translation here produces a 'false friend' in that a "gap in/within the law" refers to the superordinate concept which is then subcategorised using the two Latin phrases quoted above.
Thanks for all of your efforts all the same.
lacuna intra legem = external gap
lacuna praeter legem = internal gap
(which makes no sense to me), I have found the following which gets the pair (in my view) the right way round:
"Article 7(2) does not, however, apply to all gaps but only to those concerning matters "governed by" the Convention.[67] It is only to fill these internal gaps, or lacunae intra legem, that courts are to take recourse to the Convention's general principles. These internal gaps are to be contrasted with external gaps, or lacunae praeter legem, which consist of matters that are not within the purview of the [page 1002] CISG.[68] As regards external gaps, because the CISG does not apply to these matters, they are directly settled via recourse to domestic law.[69]"
http://www.cisg.law.pace.edu/cisg/biblio/mcmahon1.html
Have I been right all along and the sources that I have previously referred to, some of them published books, been wrong?
My apologies if this is not really a fair Kudoz question, because it is the above problem that I am trying to solve, rather than find the basic English translation of the term.