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The ius et lex distinction in the contemporary legal science

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

Language: Polish

Received: 09.03.2017
Accepted: Załączniki03.05.2017

Published: Number 2(15)/2017, pp. 49-59.

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Filed Under: Articles Tagged With: dualism of law, ius et lex, law beyond statutory law, legal culture, Maciej Pichlak

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Keywords

statutory lawlessness procedural criminal law regulation of liberty judicial virtues Bartosz Greczner open society Maciej Zieliński theory of justice psycholinguistics legal ethics Jarosław Mikołajewicz conflicts within values Krzysztof Sielski dialogue existentialism decommunization manner of taking into account the expiration of the limitation period autonomy External Uncertainty of Law Adam Szot judicial election utopia phenomenology revolutionism medicine Karol Staśkiewicz post-theology conflict resolution Sylwia Wojtczak meaning externalism primatology general legal theories Paul Grice conversational implicature good governance juristic virtues cultural defense ideology Marek Jakubiec theory of legislation Georgii Sibirtsev criminal law Zygmunt Bauman Paweł Skuczyński field of axiological awareness theory of punishment as communication judicial argumentation Karl Popper populism difference

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