Miejsce doktryny prawniczej w procesie tworzenia prawa
Ładowanie...
Data wydania
2007
Autorzy
Tytuł czasopisma
ISSN
1689-8052
eISSN
Tytuł tomu
ISBN
eISBN
Wydawca
Oficyna Wydawnicza AFM
Abstrakt
The answer to the question to what extent the study of law participates
in the process of law creation is a difficult one. It seems that legal
doctrine achieves far more as far as its influence on law application is
concerned. In this scope, the influence of research is more visible. This
influence is reflected in frequent references to the stand of research
in the rulings of the bodies applying law, in particular courts situated
at the top of the judiciary hierarchy, as well as in using the expertise
carried out by lawyers who are researchers in the field of law interpretation.
Nonetheless, in the range of research which is under discussion,
concerning law creation and changes in the area of law, the study of
law and legal doctrine have much to say. This influence can be observed
both in general and in more particular issues. This phenomenon
is multidimensional and in this draft it is difficult to analyse all
its aspects. In its basic dimension, concerning the rules of law making
process, these are issues in the theory of law. What is being discussed
are general conditions and rules of the dynamics of law. One attempts
to formulate generalizations and regularities as well as present alternative
models of law making process. In the broader scope, where direct
and indirect influences are discussed, additional phenomena can be
analysed, namely findings in sociology, law and legal policy. In social
and political practice some complicated subjective relations manifested
in serving multiple social functions by the representatives of the
doctrine can be the subject of analysis. The lawyers who are devoted
to academic research, do not shun legal practice, often connecting it
with political or administrative functions. Potentially, then, they can favour their own or borrowed academic conceptions in the practice of
law creation.
Finally, it is the outcome of a particular kind of legal culture as well
as the position and authority attributed by the system to researchers.
The influence of the doctrine on law making process in its particular
dimension is manifested in presenting particular solutions, specific
legal contents and the postulate of introducing them to currently binding
law.
What can determine the effectiveness of de lege ferenda postulates?
De lege ferenda postulates of legal doctrine can be treated in this
process as a kind of impulse. The question then arises who should the
postulates of the doctrine formulated in the scope of changes in law
be addressed to. Can reasoning be applied at all and if it can, then the
question occurs what kind. It can be assumed that particular kinds of
reasoning can be combined with the hereunder mentioned areas.
By means of discussion, or rather signalling certain types of reasoning,
I aim at pointing at the fact that their utilization constitutes
the accomplishment of de lege ferenda postulates. This effectiveness is
obviously a potential one, depending not only on the importance of
the argument but also on whether and to what extent it is feasible to
reach a particular decision making bodies with these arguments.
Opis
Tematy
Słowa kluczowe
Źródło
Studia Prawnicze. Rozprawy i materiały 2007, nr 1, s. 51-64.