A CRITICAL LOOK AT LAW SCHOOLS

 

A critical look at law schools

 

lecturer PhD Mădălina VIZITEU

„SPIRU HARET” UNIVERSITY

Faculty of Law and

Administrative sciences Bucharest

 

 

Abstract

The present scientific approach has as object the analysis of the way in which, in the schools and doctrines of law, the fundamental problem of law is solved, respectively of its definition. The first part of this study approaches the doctrine of legal positivism, with special emphasis on the pure doctrine of law, and will analyze the other currents in separate scientific communications.

Keywords

legal positivism; the fundamental issue of law; the pure doctrine of law; legal doctrines; law schools

 

The fundamental problem of law is its very definition. Currently, the notion of law is seen in three senses: objective law, limited by some schools and currents to positive law, the science of law and subjective law.

This approach even if it does not aim to clarify the concepts of the science of law and subjective law, it cannot fail to mention the fact that there is no unity of views on them either. Kelsen, for example, with regard to legal science, says that it “must not legitimize, must not in any way justify the normative order, which it is called upon only to recognize and describe – nor from the position of absolute morality, nor from that of a relative morality. “[1]

Another doctrinaire of legal positivism, John Austin, also stated that the science of law is concerned only with positive laws or the laws themselves, regardless of whether they are good or bad.

Without neglecting this problem of defining the science of law, which is particularly important, in its turn, in solving the fundamental problem of law, we will not dwell on it but will remain on the stated object of this approach, respectively on trying to do an appreciation of how the different sheets of law resolve the challenge of defining the fundamental problem of law.

As is well known, depending on the answer given to the fundamental problem of law, the doctrines and doctrinaires of law have been grouped into schools or currents, the best known being: the school of natural law; rationalists, the doctrines of the social contract; Kantian and Nokantian philosophy; Hegelian philosophy; the historical school of law, the organic theory of law, positivism. Some of them have been subdivided, such as positivismin law which has been subdivided into scientific positivism; American legal realism; Scandinavian legal realism; utilitarianism; German idealist philosophy.[2] Other authors[3]I also talk about the doctrines of the volkgeist; the structuralist current; Kelsenian normativism, the sociological current; Marxism; neo-Marxism; liberalism; biological orientation. There are other highlights such as empiricism; pragmatism; positivism; logical positivism.

Of course in such doctrinal diversity, the authors cannot be strictly framed / positioned in a certain current. The exegetes of the field group the doctrinaires according to certain criteria that are not unanimously adopted.

For example, Hans Kelsen, who will be the main subject of this first part of this approach to law schools, is often seen as the author of a distinct school, namely Kelsenian normativism. After all, we say, all schools look at normativism. Thus his conception integrates very well into legal positivism.

Kelsen himself categorizes his theory called “pure doctrine of law” as a doctrine of positive law, which provides a theory of interpretation. “[4]

I consider this positioning of Kelsen’s positivism a possible critique of his doctrine. Thus, Kelsen excludes from research precisely the foundation of law, its foundation, the justification of its nature and solves it, as we will show below, like contractual theories based on the fiction of the social contract, through another fiction he calls the fundamental norm. / Grundnorm, which, however, cannot be specified, but only presupposes it to be the source of all norms.

As will be seen, Kelsen’s doctrine is dependent on the period and state in which he lived, formed, and evolved. He was born in an empire, the Austro-Hungarian, on October 11, 1881, studied law at the University of Vienna, where in 1906 he obtained his doctorate and habilitation (1911), an empire that lasted from June 8, 1867 to October 31, 1918 , had 676,000 km2 and almost 53 million inhabitants. It was the second largest state in Europe at the time, the first in size to be the Russian Empire. It was an empire founded on domination, power, obedience. On the end of the Austro-Hungarian Empire after the Treaty of Versailles (1919) Dimitrie Gusti[5]he appreciated that humanity had stopped at a significant historical chapter, at a funeral and a resurrection, that the old state had died, eternally aggressive and conquering, based in and out on simple, brutal power and replaced by the new state, based on the national idea. democratic. “The final victory of the national principle means the beginning of a new era of international law; from today on, the legal title of the establishment of future states will have to be the right of nations to dispose of themselves freely. (…) The whole political program of peace, which ended at Versailles, is contained here. The only criterion for reconstructing the political map of Europe will have to be the map of nations, and the peace congress would have had only one work to do, that of establishing the coincidence between political and national borders. Thus, a new Europe was born. And in order to realize the creative power of the new political life, which the national idea had, it is enough to remember that before the peace of Versailles in Europe there were 28 states and 62 nations (only Austria-Hungary contained 10 nations); therefore, most of the nations were oppressed, because out of 28 villages only 7 were actually independent, having their own political organization. (…) Today the peoples have become nations, and the dynastic states, national states ”[6]

Returning to Kelsen’s definition of the pure doctrine of law, we note that he also showed that all that law wants, as a theory, is to know its object.[7]So it doesn’t matter what is right and why it is so and so. It only matters what its object is. Here again we are in opposition to the Kelsenian statement. We consider that the object of law is the problem of the science of law, and that it cannot be the fundamental problem of a doctrine. Of course, as I said, the political doctrine of the empire, and as a consequence of the legal field was that subjects, especially other peoples to comply with the law made by the empire. This was the desideratum of the theory of law. Even the promotion of the Kelsenian conception is based on the fact that it served the empire. Kelsen considered that, uncritically, jurisprudence mixed with psychology, sociology, ethics and political theory, against which the pure doctrine of law, which aims at a knowledge of law, tries to draw a line. As I noticed,[8]The mixture with the other sciences, shown above, naturally brings, inconveniently to the need to explain what, in fact, is the right, why it is so and how it interacts with human feeling, with spiritual reflection, ideational, in relation by the concepts of right and wrong, good and bad, ethical, moral or immoral, to the values ​​recognized by society and their protection. It is not the doctrine, as stated, that has as its object the knowledge of the law, in other words of the commandments and of what must be done to comply with them, respectively how to ensure compliance by sanctioning their violation. The rules of the empire are as they are and their recipients must comply with them because they are.

In fact, we repeat the observation that the recourse to Grundnorm, which some have mistakenly understood as the Constitution, is on the same line. Without clarifying where Grundnorm comes from, what its content is, who the issuer is, this is also a fiction, foggy and misleading.

Kelsen states that a state of affairs, an act of law or lawlessness acquires its specific legal meaning, its legal meaning through a rule that gives it the meaning of law, so that the act can be interpreted after this rule, that the rule functions as a scheme of interpretation, namely a normative interpretation. Here Kelsen comes up with his own hypothesis of the rule that derives its legal meaning from another rule: from another rule.[9]

Here, as I said, Kelsen’s idea of ​​law boils down to the materialization of law, omitting the search for the essence.

The Kelsenian conception is on the same position when it states that a theory of law must, above all, conceptually determine its object and that if we make a comparison between objects that have been named by different peoples at different times, ” it follows that all are presented as an order of human behavior and that an “order” is a system of norms whose unity is constituted by the fact that they all have the same basis of validity of a normative order, respectively a basic norm from which derives the validity of all norms belonging to the order.[10]

The idea is taken up and reinforced by Kelsen’s statement that “in the self-evident statement that the object of legal science is law, the least obvious is included, that the object of legal science is the rule of law, and human behavior is of interest only in the extent to which it is determined in the rules as a condition or as a consequence – or, in other words – in so far as it is the content of rules of law. “[11]

The fundamental issue of law, even if it was not stated as such, has been a permanent concern of the people. In mythology, Zeus was seconded by the goddess of justice, Themis, the keeper of natural laws and order.

The importance of law has been emphasized since ancient times. Thus, Hammurabi, in his famous code, said that he is its maker, by command and under the protection of the gods, to give power to justice in the country “to destroy the wicked and cunning, as the strong not to oppress the weak. , in order to appear to people like the Sun to enlighten the country … to bring justice to the country, then I myself made the law and justice in the language of the country, making people happy. ”[12] Behold, the famous legislator of Babylon was preoccupied with legitimizing his enacted rules: they were by the command of the gods and were meant to give power to justice, to destroy the wicked and cunning, and not to oppress the strong is the weak.

Examples of people’s concern to define law cannot be exhausted even in extensive research devoted only to the fundamental problem of law. As we approach each current and school we present this aspect as well.

JLBergel stated that “it seems impossible to define law in a homogeneous and definite manner.”[13]Nicolae Iorga said that “Law is not a metaphysical fiction, but a necessity of things, without which stability in human relations cannot be achieved.”[14]

Also regarding the right, I could exemplify with the opinion of the Frenchman Maurice Duverger according to which the right appears when people from a social group try to regulate the relations between them through a balance between advantages and disadvantages, balance between exchange products, between damages. and reparations, between the harm caused to the community and the sanction applied to the perpetrator; the right is defined by the nature of the sanctions applied in case of violation of the rules.[15]

It should be noted, however, that it does not go to the essence, it does not address and even less does not justify why some can make rules that people must follow.

Mircea Djuvara pronounces himself in the sense that the essential problem of legislation is to know: is the positive right right? There is the idea of ​​justice I give a simple appearance: He wondered what justice comes down to, utility and force: Then, said Djuvara, it would make no sense to know if something is right or wrong. Justice is an independent reality. Without it we would be the toy of violence in all circumstances, it is our shield and consolation, it is the ideal we pursue. Djuvara spoke out against justification by divine command. He also categorized as an anarchist idea that law is confused with force.

 

[1] H. Kelsen, Pure Doctrine of Law, Humanitas Publishing House, Bucharest, 2000, page 94

[2] V. Sofia Popescu, General Theory of Law, Ed. Lumina Lex, Bucharest, 2000. P. 1-3 and 44-118

[3]Nicolae Popa and others.- Philosophy of law. The Great Currents, All Beck Publishing House, Bucharest, 2002, page VX

[4]H. Kelsen, Pure Doctrine of Law, Ed. Humanitas, op. Cit. P. 13: “The pure doctrine of law is a doctrine of positive law in general, not of a particular order of law. It is a general doctrine of law, not an interpretation of certain rules of law, national or international. But it offers a theory of interpretation. ”

[5]Dimitrie Gusti, Legal Sociology, ED. Didactics and Pedagogy, Bucharest, 1997, collection of texts, introductory study, selection and systematization of texts by Ion Vlăduț

[6]Apud. Radu Stancu, Legal Norm, Ed. Tempus 2002, pp. 159-160

[7] H. Kelsen, op.cit., P. 92

[8] H. Kelsen, op.cit., P. 16

[9] H. Kelsen, op.cit., P. 16

[10] H. Kelsen, op.cit., P. 49

[11] H. Kelsen, op.cit., P. 95

[12] Next to Ioan Craiovan, General Theory of Law, Military Publishing House, Bucharest 1997, pp. 15-16

[13]JLBergel, Theorie Generale du Droit, Dalloz, Paris, 1985, page 13, in Ioan Craiovan, op. Cit. Pag. 42

[14] Idem page 19

[15] Idem page 21

         Bibliography 

  1. Kelsen, Pure Doctrine of Law, Humanitas Publishing House, Bucharest, 2000
  2. Sofia Popescu, General Theory of Law, Lumina Lex Publishing House, Bucharest, 2000
  3. Nicolae Popa and others.- Philosophy of law. The Great Currents, All Beck Publishing House, Bucharest, 2002
  4. Dimitrie Gusti, Legal Sociology, Didactic and Pedagogical Publishing House, Bucharest, 1997, collection of texts, introductory study, selection and systematization of texts by Ion Vlăduț
  5. Radu Stancu, Legal Norm, Ed. Tempus 2002
  6. Ioan Craiovan, General Theory of Law, Military Publishing House, Bucharest 1997
  7. JLBergel, Theorie Generale du Droit, Dalloz, Paris, 1985

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