Dr Maciej Pichlak
University of Wroclaw
English abstract: The aim of the paper is to clarify the concepts of ius and lex, as well as to indicate main interpretations of these concepts in the contemporary jurisprudence. For the concepts of ius and lex are not only of historical significance (as used in the legal discourse of the ancient Rome), but they are present in the entire history of the Western legal culture – since ancient times until today. Owing to this rich historical heritage, as well as to the very nature of the discussed concepts, it is impossible to offer classical definitions of ius and/or lex. Therefore, a proper analysis of their meaning will lead to determination of their ‘connotative field’: a map of associations and theories related to these concepts.
In order to realize this task, the paper offers three basic typologies that allow to order mutual relations between existing theoretical standpoints in this field. The first typology concerns a practical function of ius in the legal order. We can distinguish here theories which perceive such a function as mainly negative, positive, or mediating (optimalising). The second typology treats on the sources of binding force of ius. One can indicate positivistic, legalnaturalistic and hermeneutic intepretation of this problem. Finally, the third typology regards mutual relations between ius and lex, which may be described either as hierarchical, or as functionally differentiated. These considerations allow to conclude that the usefulness of such a dualistic way of thinking about the law is ever persisting. Within this perspective the legal order is conceived as containing statutory law (lex) as well as nonwritten binding standards, independent from law–making authorities (ius).
Keywrods: ius et lex, legal culture, law beyond statutory law, dualism of law
Published: Number 2(15)/2017, pp. 49-59.
Download file: Download
Number of downloads: 324