Crossroads of Statute and Law in Modern Europe
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Abstract
The idea of conceptual division between Law and Statute has been vital factor in the process of law learning. Characteristic historical features of the scholarly developments in the crossroads of Statute and Law are being dealt with in the article. These features are related to particular circumstances of time period and this relationship allows us to comprehend better aforementioned crossroads. In the article valuable legacy of law history, which is still very much used in answering to new challenges of politics, democracy, law making process, law and justice, is looked at from the modern day point of vantage. The legacy of legal thought provides us with plentiful source for the arguments often involved in the ideological and theoretical background concerning the crossroads of Statute and Law.
The author defends position that the concept of division between Statute and Law has played an important role of Law learning in the course of the law history. This division serves as a ground for both axiological function and interpreting function. Depending upon the choice of this function a Statute may be estimated as legal or extralegal. The article supports the arguments that retrospective view to Law and Statute is detrimental to claims that Statute always goes contrary to Law, morals and justice. Certain order of things has been always present in any given society. If this order did not run contrary to common perception of justice, cosmological coherence (law), people obeyed the order. However, if the order did not stop society from chaos, it met with opposition.
The author of the article defends position that historical overview of the crossroads of Statute and Law also runs contrary to widely spread myth of Law evolution, Law growth from one generation to another, continuation of Law. The growth of Law is merely illusion of ideological nature because in the history the primacy of Law had been much more effectively fortified than it is now. Juridical positivism represents the conception which equalises Statute to Law. In historical comparison with the ancient current of naturally formed Law, the doctrine of juridical positivism (established Law) was just a blink of an eye. Despite this fact now juridical positivism occupies relatively strong position because during the period of development of this legal school such important institutions as parliament, constitutional court, etc. and the principles underlying them had been moulded.
In the present we cannot imagine modern legal system doing well without them. Because of this reason we could not solve pending issues of juridical positivism and we could not return to previously employed more effective legal system without looking back at the school of it juridical positivism. Legal system did not spring up just from some enigmatic black hole. The system is characterised by its development which we are able to influence by the way of gradual introduction of amendments and appendixes.
The author defends position that the concept of division between Statute and Law has played an important role of Law learning in the course of the law history. This division serves as a ground for both axiological function and interpreting function. Depending upon the choice of this function a Statute may be estimated as legal or extralegal. The article supports the arguments that retrospective view to Law and Statute is detrimental to claims that Statute always goes contrary to Law, morals and justice. Certain order of things has been always present in any given society. If this order did not run contrary to common perception of justice, cosmological coherence (law), people obeyed the order. However, if the order did not stop society from chaos, it met with opposition.
The author of the article defends position that historical overview of the crossroads of Statute and Law also runs contrary to widely spread myth of Law evolution, Law growth from one generation to another, continuation of Law. The growth of Law is merely illusion of ideological nature because in the history the primacy of Law had been much more effectively fortified than it is now. Juridical positivism represents the conception which equalises Statute to Law. In historical comparison with the ancient current of naturally formed Law, the doctrine of juridical positivism (established Law) was just a blink of an eye. Despite this fact now juridical positivism occupies relatively strong position because during the period of development of this legal school such important institutions as parliament, constitutional court, etc. and the principles underlying them had been moulded.
In the present we cannot imagine modern legal system doing well without them. Because of this reason we could not solve pending issues of juridical positivism and we could not return to previously employed more effective legal system without looking back at the school of it juridical positivism. Legal system did not spring up just from some enigmatic black hole. The system is characterised by its development which we are able to influence by the way of gradual introduction of amendments and appendixes.
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Articles
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
