Silence and tacit consent in Armenian public law: Legal fiction, presumption or substitution?

Abstract

In the article, the author researches the problematic aspects of silence in law, in particular, the definition of silence is provided, its meaning at various stages of historical development is outlined, the types of silence are described, the legal consequences of silence are discussed, and the place of silence in the sphere of legal conventions (legal presumptions, fictions, substitution). The author provides the following definition of silence: silence is a legitimate or unlawful inaction of the subject of legal relations, from which the conditional content of the subject’s will on a legal issue follows and (or) with which a positive law (transaction) directly connects the occurrence of legal consequences. Since silence can be interpreted as a sign of agreement or disagreement, it can be argued that it creates uncertainty. Given the fact that legal certainty in modern life is a constitutional value, positive law should exclude or mitigate this uncertainty, or the content of the will arising from silence should be predetermined by positive law or transaction. The result arising from the silence falls within the realm of legal conventions and in order to find out whether silence is a legal presumption, legal fiction or substitution, the article compares these categories. The author concludes that the legislator can formulate the same provision regarding silence both with the help of legal fiction (fictitious consent) and with the help of a legal presumption (presumed consent). At the same time, the article provides a justification for the impossibility of considering tacit consent as a legal substitution, in view of the fact that in objective reality there is no conditional silence, which is an essential reason for excluding the basis of legal substitution.