The Concept of the Multi-Layered Legal System
By Béla Pokol
If one decides to make a comparative analysis of the
various modern legal systems, one will inevitably encounter the following
phenomenon; namely, that the very same component which one finds in the legal
systems of different countries is of varying importance; in certain countries
it plays a major role, while in others it is much less important. Such a comparative study which examines
components of several different countries will reach a far more comprehensive
result than research which only focuses on a single legal system. Therefore, an attempt to create an overall
legal concept will be more precise if it is based on a comparative study of the
various legal systems of the present, and further compared with the opposing
influential legal theories of the last centuries. The result of such a
comparison will show that these legal theories restrict the actually existing
multi-layered legal systems. This can
be easily integrated into an overall theory of law, which is the aim of this
brief study.
1. Restricting legal theories and multi-layered legal
concepts
If one examines the development of the legal theories of the past
two-hundred years, one observes the formulation of certain opposing legal
concepts which identified law with phenomena that determined the rulings of
court. Montesquieu’s surprising statement, which declared that
the judge is the mere mouthpiece of law, appeared in numerous tendencies of
legal theory in the last two-hundred years.
First, it was the French “école de l’exegese” in the first half of the 19th century;
later on it appeared in German legal theories by Julius Bergbohm and, some time
later, by Hans Kelsen. Subsequently it made its appearance in the theories of the Soviets.
The legal concept which identified law with the text
of the past decisions made by state bodies was opposed by the leading German
legal concept of the 19th century, namely the pandectist
jurisprudence, known under several designations, such as
“Begriffsjurisprudenz” or “jurisdiction built on legal-doctrines”, according to
the terminology of its critics. This
concept defined law as a “touched up”, refined system of legal-terms. Its main representatives, Georg Puchta and Bernhard
Windscheid, for instance, saw the determination of the judicial decisions
through the hierarchical order of the legal terms, and when the first draft of the German BGB
(civil code) was completed with the participation of Windschied in 1884, the
practicing judges of the time labeled it a “monstrosity of jurists”
(Fikentscher 1975; Larenz 1979). It is
impossible to deal with everyday cases, with all their tiny divergences, if
legislation is based upon an abstract system of legal terms - this was the
opinion of the practicing judges.
This clarity of legal notions and the identification
of law with the clear-cut system of legal terms appeared in the United
States in the 1870’s, almost contemporaneously with Windscheid’s works, through
the participation of Christopher Columbus Langdell, the dean of the Faculty of
Law of Harvard University (Duxbury 1991; Grey 1996). It remained the leading tendency of the American legal practice
and influenced works on legal science for the next several
decades. An opposing tendency emerged
which defined law as the collection of all judicial decisions. In Germany, it was supported by the members
of the so-called School of Free Law,
while in the United States its representatives were the exponents of the trend
of “legal realism”.
From time to time, although a few influential jurists
appeared who endeavored to include the multiple layers of law in their
legal concepts, although the authority of the ruling tendency always oppressed
these random attempts. The authors of
multi-layer legal concepts therefore abandoned their ideas, and they too adopted
the mainstream direction. The German
Carl Friedrich von Savigny can be mentioned, for instance, who, in his earlier
works wrote about legal institutions and legal dogmatics which analyze them and
formulate general rules. Later on,
however, influenced by Georg Puchta himself, he also shifted his attention
towards a legal concept built on legal terms in spite of being one of the main
supporters of the idea of a school of legal history. Another example is Francois Gény who, at the end of the 19th
century in France, opposed textual positivism propagated by the “école de l’exegese”, and
emphasized the importance of the multiple components of law. In 1921 in the United States, Benjamin
Cardozo emphasized the role of the multi-layered legal components in his book “The Nature of the Juridical Process”
(Cardozo 1921). Later on, however, he
adopted the views of the legal realists, who emphasized the central role of the rulings of the
court.
Thus, these theories define law as a “textual layer”,
“legal dogmatic layer”, and “a layer of judge-made law”, though it must be said
that these theories only recognized one of the three layers as law at a time,
and sometimes the coming into existence of
one of these theories was in reaction to another.
Another layer of the law was emphasized by an emerging
legal theory in the United States in the 1960’s, which can be identified with the name of Ronald
Dworkin (Dworkin 1977). This theory found
the essence of law in the fundamental constitutional rights and basic constitutional
principles. Dworkin’s thesis was set
out in his book “Taking Rights Seriously”, though his legal theories are more
clearly expressed if we paraphrase the title as “only basic rights should be
taken seriously!”. In the United States
from the 1960’s the extension of the judicial process based directly on the
constitution led to the relegation of
simple laws to the background while, in parallel, the doctrinal conceptual
system of certain legal branches also lost its importance. These developments, which
began in the United States, have emerged in several other countries in the past
years, while in the U.S. they fell into the background (Posner 1990; Grey
1996).
The textual layer, the doctrinal layer, the layer of
judge-made law and, above all, the layer of fundamental constitutional rights -
these notions summarize the most influential legal theories of the last
two-hundred years. How is one to create
an overall theory, a multi-layered legal concept out of these opposing legal
concepts?
2. The layers of the law
If one examines the development of the modern legal
systems, a striking feature of its progressive tendency is that the rules of
law tended to take the form of decisions of the sovereign power, and that
judicial decisions had to be made according to the texts of the state
power. Based on the medieval continental European jurisdictions, which
already possessed collections of
customary laws, the legal practice
that can be always amended by the
central state power was rapidly accomplished with the influence of the
absolutist rulers of the 1600’s (Caenegem 1980). Later on, with the sovereign power’s growing democratisation and
the development of parliamentarism, it
was only the place of making the final decisions that shifted from the royal
authority to the parliaments. With this
progress, law became the collection of the decisions of the sovereign
power, but it primarily became a collection of legislated texts in countries
with a democratic political system. In
England and in countries influenced by England’s common law system, however, it
was attenuated by allowing the high courts to create judge-made law.
With the adoption of a multi-party system and within
the sphere of mass-media based on freedom of speech, the parliament became the
culminating point of the society’s political common will; so the law that
appeared in legislative texts more or less depended on the will and majority
opinions of society. The court decisions
that depend on legislation fulfill society’s self-governing nature: society
itself decides when the judges apply
these fixed laws in each individual case and dispute. Because law fundamentally
appears in legislative texts and is a result of a democratic decision of the
state power, it tends to express the empirical common will of society.
When textual positivism identifies law with
legislative texts, it emphasizes an important aspect, but it also commits two
fundamental mistakes. One of these
concerns the following: in the complex and intricate social context, thousands
and thousands of legal regulations have to be perpetually created if they are
to be consistent. If this is not done
properly, they may end up canceling each other’s effects through contradictory
content. It might be well imagined what
sort of legal chaos would result on the
level of judicial case-law. It is only
a carefully prearranged system of legal concepts that can provide harmony
amongst the many thousands of legal regulations. Furthermore, it is the unified application of these concepts in
many legal rules that can maintain this intellectual systemic quality and
consistency in a heightened form. Thus
without a legal dogmatic layer, the layer of legal texts cannot function. Overlooking
this fact is one of the errors of textual positivism.
The other source of error is the failure to take into
account the openness of the legal
regulations. It is very typical of
code-like laws to use overall, rather
general notions and regulations, which renders divergence possible in its
application. This could result in
several different judicial decisions in a country in similar or even identical
cases, which would easily create legal chaos.
Thus without a Supreme Courts’ use of concretizing precedents, the
imprecise legal regulations could not properly function. (For the growing role
of the precedents in the contemporary legal systems see MacCormick/Summers
1997).
Textual positivism, a concept of law built on legal dogmatics and the concept of
judge-made law can be integrated into a multi-layer legal concept, if their
striving for absoluteness is set aside.
The textual layer of law, that can function as a consistent intellectual
organization due to its prearranged doctrinal conceptual system, is
connected to a democratic political common will, and among the existence of
many thousands of legal provisions, it keeps the functioning of law in
consistent order. The openness of the
regulations that the texts of laws,
that are formed from a legal-dogmatic point of view, contain, are
counterbalanced by the jurisdiction of the Supreme Courts. It is a jurisdiction
built on precedent, and together with the doctrinally formed texts of laws, it
renders a unified law for each country.
The importance and function of the aforementioned
three layers of law can be easily observed in continental European legal
systems, as well as those built on the common-law system, though in different
proportions. It can be stated, that the
more abstract the codified law gets in a legal system, the more inevitable it
becomes to concretize the doctrinal categories, and to shape the judicial
processes accordingly. Furthermore, the
loose regulations that the codes contain have to be concretized and updated
with the current judicial precedents.
In contrast, the more specific and concrete the legislative provisions,
the less necessary it becomes to have a doctrinal layer or a concretizing body
of judicial precedents. Accordingly, judicial precedent would
instead function as a method of
independent regulation, and not as a concretizing legal layer. The English legal system can be
characterized as such a system, while the legislation of the United States
started to shift in the last century towards that of the continental European
countries’ codified legal system and, compared to the English system, a
stronger legal-dogmatic categorical system was established in certain
fields of law (Dawson 1968). However,
among the continental European
countries’ legal systems, a visible
difference can be observed concerning
the importance of each of the
three legal-layers; while in the German
legal system and in the other continental legal systems influenced by it, the doctrinal layer is of high importance, it is much less so in
the French legal system.
There is a divergence amongst the continental legal
systems with regard to the development of the layer of judicial precedent. Although its significance seems to be
increasing everywhere in the course of the
last few decades, it is mostly in the Scandinavian countries and Germany
where it is of marked importance, while in the southern-European countries and
France it is still not so highly emphasized (see Alexy/Dreier 1997; La
Torre/Taruffo 1997; Peczenik/Bergholz 1997). Among the post-socialist
countries, it is in Hungary and Poland that a visible development can be
observed concerning the importance of the aforementioned layer of judicial
precedents (Wróblevski 1991). Besides
the mere textual layer of official regulations, the layers of doctrine and judicial precedent are also an
essential part of the legal systems of these countries. In Hungary, the empirical statistics which
analyze the rulings of the courts prove that the position taken by the Courts
is based on the texts of law, as well as on the interpretations of certain
doctrinal notions, together with the precedents of the Supreme Court which
provide solutions for some of the legal dilemmas which were left unsolved by
the former legal regulations ( see Pokol, 2000a; 2000b).
The cooperation of these three layers of law is not
recent; it can be observed in the legal history of the past centuries and, in
some countries where a Constitutional Court was established, it was even
accompanied by a layer of constitutional rights. If we do not accept Ronald Dworkin’s overemphasizing attitude on
this field, and we attempt to integrate fundamental rights into an extensive
legal concept, as a recently established legal layer, the following connections
have to be emphasized.
As a starting point it has to be stressed that this
recent legal layer may have a different impact on the three already existing
layers within the legal systems of various countries. Wherever the new legal layer comes into being with the
establishment of a Constitutional Court, it inevitably influences the creation
of the textual layer. A judicial
decision which is declared unconstitutional loses its validity - this is the
sole influence of the layer of fundamental rights. Its other important influence is due to the procedure of
considering the essential normative basis of the previous constitutional
decisions before issuing new judicial decisions.
A third influence can be observed if the fundamental
constitutional rights and their concretizing constitutional restrictions are
included in each legal branch’s doctrinal activity, and the doctrinal system of
legal terms of the criminal law, family
law, labour law, etc. is (also) altered
according to the legal layer of fundamental rights. If this is accomplished, the new legal layer, besides its effect
on the textual layer, will have an influence on the doctrinal layer as well.
Finally, a third influence is that of fundamental
rights on certain court rulings; either through its inclusion in the analysis
of judicial decisions - together with other evaluations, or through their
exclusion - or relegating the relevant judicial decision itself to the
background, and issuing a ruling based on fundamental constitutional
rights. If the latter occurs - as it
did in the United States during the period of the activist Warren Court in the
1960’s and 70’s, then fundamental rights push all other legal layers into the
background. In most legal systems which
have constitutional courts, the layer of fundamental rights only influences the
layer of the legal text, and jurists also form their “de lege ferenda”
suggestions that consider fundamental rights according to the legislation and
not with the aim of influencing the judicial decisions.
In this restricted solution the traditional
cooperation of the three legal layers remains, and the fundamental
constitutional rights only slightly modify its final outcome. Aspects of righteousness, and influences
that have a short-term pacifying effect on the empirical common will, improve the functioning of the legal system.
If the aforementioned ideal arrangement is
established, the layer of legal texts, together with the layer of legal
dogmatics and that of judicial
precedents and fundamental constitutional rights together provide a unified
legal system. This is the goal of the
concept of a multi-layered legal system.
Besides defining the ideal
concept of law, it also points out the shortcomings of other legal
concepts that strive for the absoluteness of one of the legal layers.
3. The implications of the concept of the
multi-layered legal system
The broadening of the concept of law and the
recognition of other legal layers engenders the necessity of reconsidering
several legal phenomena. In the
following, we shall examine a few of these.
(The definition of law) One of the first aims of the necessary reconsideration has to be
to redefine what law itself means. In
other words, if we include the doctrinal system as an inevitable part of the
law then, accordingly, it has to be expressed within the definition of law
itself.
There is another aspect in which law differs from
non-legal norms. Namely, it
produces an intellectual system, and after a certain stage of development this
emphasizes the notions and categories that are used by legal norms from other
notions of everyday-thinking. The only way to eliminate the (possible) inconsistencies that might occur among the
many thousands of legal norms is to deliberately create specific legal terms,
expressions and classifications, and then systematically use these when dealing with any legal norm
in question. Contrary to this, other
non-legal, social norms rely on notions that are used in everyday-life, and the
solutions based on these notions do not constitute a unified intellectual
system.
Taking all this into consideration, the definition of
law can be given as the following: law is a system of norms and their terms
that express regulations and prohibitions which, failing all else, is sustained
by coercion of the state.
(Legal dogmatics as a barrier of legislation) The prearranged system of legal terms that the legal norms are
based on also has an influence on the modifiable nature of certain legal
norms. Namely, the modified norm has to
fit the already existing unified intellectual system and, for instance, a new
legal norm can not use a classification that would clash with the
classifications used by the already existing legal norms. For example, in the criminal law of most of
the modern legal systems, the intentional character is separated from
negligence when judging culpability - or rather these concepts are divided into
different degrees. If a new legal rule
contained a new classification of guilt, regardless of the already existing
ones, the numerous restrictions of the criminal code would simply
collapse. To replace a legal norm with
a new one is only possible if it is doctrinally verified. The emphasis of this connection sheds a different
light on the ability to modify legislation and the role of legal dogmatics
which ensures the law’s intellectual unity.
Often it is sufficient to include well-trained lawyers
in the parliamentary apparatus and legislative committees in the ministries in
order to verify the consequences of certain amendments. But if a more significant amendment or a new
enactment of the legislature is at stake, the consideration of the doctrinal
questions should be done by a specialized legal experts in the relevant
field. This is especially so in the
case of codified laws.
Inasmuch as the politicians in parliaments often amend
and interfere with laws which rely on a
prearranged notional system, or rather establish new codes, and this
does not affect the fundamentals of the legal-dogmatics, we have to
hypothetically assume that there has to be a transformational-mediator sphere
in existence between the legislation and the legal dogmatic sphere, that somehow connects legislators following a
political logic and the legal dogmatic sphere itself. In order to verify this hypothesis, the following things have to
be taken into consideration: the methods of codification, the political
intentions of the parties, or rather the professional organizations of
legislation. As a result, the
outlines of a legal-political sphere can be detected which, in some form or
another, is present in every modern democracy, particularly in the case of the
continental European countries.
On the one hand, this legal-political sphere exists as
a part of the legal subsystem that is directed towards politics, and on the
other hand, some institutions can be found as part of the political subsystem
that are involved with issues of legislation.
Ideally, these two elements of the legal-political organization adopt
parts of the “de lege ferenda”-type
restrictions in a two-step transformational process, and in the course
of a selected borrowing the political side gradually tables bills which were
originally formed as part of a doctrinal activity, according to the logic of politics (for instance the method of
aspiring to maximize the number of votes).
The part of
legal-politics that is established as a part of the legal subsystem, typically
consists of bodies and assemblies of the various legal professions. The conferences, programs,
membership-meetings and publications of these bodies mostly emphasize proposals
about amendments that react to the
recent social problems , and that were previously outlined and supervised from
a doctrinal point of view and already published in some of the legal
periodicals. Thus, a part of the
numerous “de lege ferenda”-type propositions that the legal experts of
universities and the members of the high courts etc. outlined only from a
juridical point of view, become the object of a certain filtering process. As a result, those propositions will come to
the foreground that are the reactions on the current social problems. At the same time, non-topical propositions
that concern academic-scientific issues only excite attention in scientific
circles and are the subject-matter of the legal periodicals, without having any
influence on the functioning legal sphere.
The other part of the legal-political sphere that is
founded as part of politics, consists of the legal experts of the parties, the
legal groups of the parliamentary party-factions, and of the groups of the
jurists who are the members of the so-called “background-institutions” of the
political parties, such as the political foundations and party-schools. Though the aspirations of the parties are mostly determined by
the maximization of the votes ( and due to this they try to include motions in
the party’s program that are likely to enhance the number of votes), the
adequacy of the programs inquires aspirations that are more or less workable. On account of the latter reason, the legal
experts of the parties can only choose from propositions concerning amendments
that are adaptable from a legal-dogmatic point of view. Although it becomes very important method
to start looking for such motions among the lot that would fit the interest of
a certain party the best, or rather to look out for those that would be against
their interest the most. The jurists of
the parties mostly concentrate on those “de lege ferenda”-type regulative
propositions that were already emphasized on the assemblies and conferences of
the associations of the lawyers, and
the social consequences of which
were already stressed in relation to certain propositions. Thus with a double transformation - despite
the pushing of the pure legal-dogmatic point of view into the background and
emphasizing the logic of politics - those regulatory models will appear in
legislation, that do not violate the intellectual coherence of law. The legal experts of parliamentary committees
are continually on the watch for motions concerning amendments that would
violate the established legal-dogmatic system.
It is only this legal-politic sphere that mediates
between law and politics, that can assure the proper operation of legislation, and the intellectual systematic character
of law.
(The expansion of the circle of legal sources) The inclusion of more legal layers into the concept of law
requires the expansion of the circle of legal sources. As the multi-layer legal concept can be best
observed in the legal systems of the continental European countries, let us
look at their legal sources.
It is the state bodies that are in charge of the
textual layer of law, and the sources of the textual layer are those forms of
decision making, that contain the textual layer of law. The most characteristic of these are the
forms of decision making in the case of parliamentary acts, the forms of
decision making of the governmental orders, the orders of the ministers, or
rather the locally prevailing forms of decision making of the local
authorities.
The first outcome of these forms of decision making is
a series of open legal norms, that can only be accurately interpreted according
to the legal-dogmatic categories that the norms contain. The reduction of the occurring disparate
possibilities and the establishing of a more unified interpretation can be achieved
with the consensus of the legal profession.
The employment of the accepted legal opinion in legal case-decisions,
and - due to juridic decisions that refer to these - also the legal-dogmatic
works that express legal consensus, all contain characteristics of legal
source. This is typical of Germany, for
instance, where in the case of legal dilemmas that have to be decided by the
Supreme Court, the judges often refer to works of certain jurists (Alexy/Dreier
1991). It is characteristic of numerous
countries that when a decision has to be made about a legal dilemma, it is the
commentaries of the law that they refer to, and not directly to the law as it
applies to the case. According to this
- although on a comparatively small scale -, some systematizing legal-dogmatic
works may also serve as a kind of a legal source in certain legal systems.
The legal textual layer’s regulations - even if it is
amplified with the legal-dogmatic interpretations - still remain open, and the
layer of the concretizing judicial precedents that supplements it and creates a
further legal source, has to be perpetually observed by lawyers, if they want
to know what they should expect in their cases. These judge-made laws, that gained considerable importance in the
legal systems of the continental European countries, were mostly created by the
Supreme Courts of the countries in question, and the forms of decision making
of these judicial forums function as a legal source.
Finally, wherever a constitutional court is in existence,
its concretizing decisions concerning fundamental constitutional rights and basic principles also serve as a
legal source. These constitutional
decisions have to be separated from the concretizing precedents that concern
basic legal decisions, because the fundamental rights that these are based on
are not systematized dogmatically, they are usually more abstract and compared
to certain legal restrictions their openness is greater, or the fundamental
rights contradict each other in some cases, respectively. This is one of the various reasons why,
based on these, in the continental countries it is the constitutional court
that decides in these cases, and their influence is reduced to legislation,
furthermore, they do not directly affect the judicial decisions. Naturally, there are great differences
between the degree of influence that they have on a countries’ legislation ,
and apart from most of the countries where the impact of fundamental rights and
the decisions of the constitutional court (that serve as the interpretations of
them) is restricted to the role of controlling legislation, in Germany they
also influence certain judicial decisions.
In theory the judge, based upon the constitutional court decisions
and the constitutional basic rights,
could simply set aside the given judicial provisions that should be applied
under those circumstances and directly refer to these in a constitutional case,
as it was achieved in “the rights revolution” in the United States in the
1960’s (see Epp, 1998). However, this
did not become customary in Europe. In
other respects, if this is not established, then it can result in the falling
of the other legal layers to the background, and furthermore, in the course of
the re-politicization of the law it can lead to the corrosion of the
predictable judicial decisions - as it could be seen as one of the consequences
of the “ rights revolution” in the United States. (For the politization of the
law in the United States see Scheingold 1998).
The existence of
these degrees show that the constitutional court-decisions would only be
of full value as a legal source if they had direct influence on certain
judicial decisions, though this only appears as an exception in the continental
legal systems. In most places their impact
is narrowed down to the control of legislation, therefore their function as a
kind of a legal source is limited.
(Broadening the methods of statutory interpretation) Having included numerous other legal layers into the theory of
law and the legal system, and the discovery of the determined relations between them, influences the ways
of legal interpretation as well. Let us
look at a few connections visible on this field.
The recognition of the importance of the textual layer
of law brings forth the recognition of the primary importance of grammatical
interpretation. It is the parliament,
as the chosen representative of society’s political common will, that is in
charge of the proper interpretation and
usage of the textual layer of jurisdiction, therefore to take the grammatical
meaning of the text seriously is identical with taking the empirical common
will seriously. The several ways of
interpretations that rely on the other legal layers can only advance as far as
it does not contradict the clear grammatical meaning of the legal text.
The legal-dogmatic layer and the emphasis on the
intellectually systematic character of law in the course of the functioning of
legislation impels the employment of those ways of legal interpretation, that,
beyond the grammatical meaning of the textual layer, help the judge in
decision making in a given case. One
of the possibilities is the interpretation based on the use of legal-logical
maxims, that, starting from the text’s perceivable meaning, but not encroaching
it or using judicial autocracy, manages
to control the judicial procedure. The
so-called “argumentum a minore ad maius” (to reach more from the less by
inference), and the “argumentum a maiore ad minus” (to reach the less from
more), their collective designation is “argumentum a fortiori”, or the
“argumentum a contrario” (induction from opposites) etc. can control jurisdiction with the
extrapolation of the text’s perceivable meaning. In order to remedy a situation
when a legal gap occurs, the judicial decision that relies upon analogies shall
also end up leaning on the legal-dogmatic layer, as it constructs the verdict
directly from the legal principles (this process is called legal analogy), or
it transfers a legal provision that was created in a similar case, so to base
the current regulation on the former example (the method of statutory
analogy). As to the doctrinal
interpretation, it implements the embedding of the notions found in the textual
layer, therefore it binds the textual and the legal-dogmatic layer together, in
relation to the current case.
The interpretation based upon precedents connects the
textual legal layer with the layer of judicial precedents, and it specifies the
open regulations, and therefore assures the nationwide unity of
jurisdiction. Thus, this is of primary
importance in the concept of the multi-layer legal system.
From the multi-layer legal system’s point of view it
can be qualified as dangerous, when in relation to a current case, the verdict
relies on an interpretation that is based on such constitutional court
decisions that concretize fundamental constitutional rights and basic
principles. The American legal practice
that carried this into effect is a proper example to show how this process
“re-politicizes” law, and how it instigates to push the other legal layers -
besides the layer of the fundamental rights - into the background (see
MacCann/Silverstein 1998; Scheingold 1998). The German legal practice is also
liable to experience such a shift, and the only reason why it has not yet shown such negative sings is
because - despite having accepted the fundamental rights as directly prevailing
through the German constitution - in practice they are rarely included into the
current judicial procedures.
In Central Europe it was in Poland where, for only a
few years, the constitutional court’s legal interpretations were obligatory,
that is, the judges were bound to take it into account. But the judicial opposition to the functioning
of a re-politicized constitutional court led to its exclusion from the new
constitution of 1997 (Poplawska 1998).
The Hungarian constitutional court - even on an international scale -
has a very great competence, and it has a right to eliminate laws, though the
constitutional court decisions do not directly influence judicial
decisions. In fact there are some
lawyers and smaller groups of legal experts who - based on the American pattern
achieved by “the rights revolution” - support the introduction of the
constitutional court’s direct influence on judicial decisions, but this has not
been put into practice yet.
Thus in order to conclude, the concept of the
multi-layered legal system supports the idea of a law on a larger scale,
accepting the parallel operation of several methods of legal interpretation at
the same time, therefore it is against legal concepts that place a single legal
layer into the center.
Literature
Alexy,
R./Ralf Dreier (1991): Statutory Interpretation in the Federal Republic of
Germany. In:
MacCormick/Summers(ed.) Interpreting
Statutes. A Comparative Study. Dartmouth. 73-122 p.
Alexy,
R./Ralf Dreier (1997): Precedent in the Federal Republic of Germany. In:
MacCormick/Summers(ed.) Interpreting
Precedents. A Comparative Study.Dartmouth. 17-64 p.
Caenegem. Raoul C. (1980): Das Recht im
Mittelalter. In: Fikentscher, W.
(Hg.): Entstehung und Wandel
rechtlichen Traditonen. Alber Verlag.
1980.
München. 609-667.p.
Cardozo, Benjamin N. (1921): The
Nature of Juridical Process. New Haven: Yale Univ. Press.
Dawson, John P.(1968): The Oracles of Law. Ann
Arbor. The University of
Michigan Law School.
Duxbury,
Neil (1991): The Theory and History of American Law and Politics. In: Oxford
Journal of Legal Studies. 1991/4. 589-597
p.
Dworkin, Ronald (1977): Taking
Rights Seriously. (Cambridge, Mass.
and London, 1977)
Epp, Charles R. (1998): The Rights Revolution. Chicago and London
Chicago University
Press.
Fikentscher, W. 1975: Methoden
des Rechts. (Band I.: Romanischer Rechtskreis; Band II.
Anglo-amerikanischer Rechtskreis; Band III. Mitteleuropäischer
Rechtskreis) Tübingen: Mohr.
Grey, Thomas C. (1996): Modern American Legal Thought. In: Stanford Law Review.
1996.
Larenz, K. (1979): Methodenlehre der
Rechtswissenschaft. 4. Auflage. Berlin/New York.
Duncker und Humblott.
La
Torre, M./M. Taruffo (1997): Precedent in Italy. In: MacCormick/Summers (ed.)
Interpreting
Statutes. A Comparative Study. Dartmouth.
141-188. p.
MacCann, M./ H. Silverstein (1998): Rethinking Law's
“Allurements": A
Relational Analysis of
Social Movement Lawyers in the United States.
In: Sarat, Ausl In: Sarat,
Austin/S. Scheingold (ed.): Cause Lawyering.
Political Commitments and
Professional Responsibilities. New York. Oxford
University Press. 1998.
261-292 p.
MacCormick, N./Summers, R. S. ed. (1991):
Interpreting Statutes. A
Comparative Study. Dartmouth.
MacCormick, Neil/R. S. Summers ed.(1997): Interpreting Precedents. A
Comparative Study. Dartmouth.
Peczenik.
A./G. Bergholz (1997): Precedent in Sweden.
In: MacCormick/Summers(ed.)
Interpreting Precedents. A Comparative
Study. Dartmouth. 293-314 p.
Pokol, Béla (2000a): Statutory Interpretation and the Precedent
in Hungary. In: Osteurope
Recht. 2000 Heft 3-4,
262-277.p.
Pokol, Béla (2000b):
Rechtauslegung und höchstrichterlichen Prajudizien in Hungary. In:
Zeitschrift für öffentliches Recht. 2000 Heft 3.
Poplawska, Eva (1998): Constitutionalization of the Legal Order. In:
Polish
Contemporary Law. Quaerterly
Review. 1988. NO. 1-4. 115-133.
Posner, Richard A. (1990): The Problems of Jurisprudence. Harvard
University Press.
Scheingold Stuart (1998): The Struggle to Politicize Legal Practice: A
Case
Study of Left-Activist
Lawyering in Seattle. In: Sarat, Austin/S. Scheingold
(ed.): Cause Lawyering.
Political Commitments and Professional
Responsibilities. New
York. Oxford University Press.1998 118-150 p.
Wróblewski, Jerzy (1991):
Statutory Interpretation in Poland. In:
MacCormick/Summers.
Interpreting Statutes. A Comparative Study. Dartmouth.
257-310 p.
Béla
Pokol (1950)
-
Professor of law, political science and sociology at the Eötvös Lóránd
University of Science
in Budapest.
- Head of Department of the Sociology of Law
and Legal Theory at the Szeged Unversity.
Adress:
H-1053. Budapest, Eötvös Lóránd University of Science, Egyetem tér 1-3.
E-mail:
pokolbela@matavnet.hu