Old and new legal typologies

Author:Laura - Cristiana Sp?taru - Negur?
Position:Assistant Lecturer, PhD Candidate, Faculty of Law, 'Nicolae Titulescu' Unive
Pages:48-63
SUMMARY

The existence of legal constants does not preclude the process of legal change, of its permanent evolution. Thus, the legal doctrine emphasizes that there is no legislation valid for all times, the legal progress mentioned by Turgot being ubiquitous. Multiple forces drive to diversification or to approach the national legal systems. Analysing the history of law, we distinguish the existence of... (see full summary)

 
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LESIJ NO. XXI, VOL. 2/2014
OLD AND NEW LEGAL TYPOLOGIES
Laura - Cristiana SPĂTARU - NEGURĂ*
Abstract
The existence of legal constants does not preclude the process of legal change, of its permanent
evolution. Thus, the legal doctrine emphasizes that there is no legislation valid for all times, the legal
progress mentioned by Turgot being ubiquitous. Multiple forces drive to diversification or to approach
the national legal systems. Analysing the history of law, we distinguish the existence of overlapping
legal systems, fact that raises the question of legal typologies. Different criteria and different names
have been proposed by the legal comparatists. In the present study, we shall address some of the most
important and famous criteria, with emphasis on a new legal typology that has arisen - the European
Union law.The present study is part of a more complex research on this theme and it is meant to
approach certain important points of my Ph.D. thesis.
Keywords: comparative law, diversification, European Union, legal systems, typology
1. Introduction*
Conceived as a multidisciplinary study
combining elements of general theory of
law, with elements of comparative law and
European Union la w, this paper aims to
answer the questions: what are the legal
typologies and is the EU law a new type of
law, with specific qualitative
determinations?
We are currentl y witnessing exciti ng
challenges concerning the European Union
there are discussions about the integration in
a legal order above the Member States legal
order, about connecting supranational
interests, about the reconfiguration of
sovereignty, about the intertwining of
national values with the European Union and
about the harmonization of legislation.
Thus, we ask ourselves if the European
Union law, characterized by multilingualism
and multijuridism, can be considered a new
type of law, emerged in the panorama of the
world’s legal systems? We believe t hat, just
* Assistant Lecturer, PhD Candidate, Faculty of Law, “Nicolae Titulescu” University of Bucharest, Romania, LLM
alumnus, Fribourg University, Switzerland (email: negura_laura@yahoo.com).
1
Nicolae Popa, Teoria generală a dreptului, 4th edition, C.H. Beck Publishing House, Bucharest, 2012, p. 58.
as far as the EU is based on an autono mous
legal will and on principles and values that
are within the eternal law, “unity in
diversity” is possible and so the existence of
a new legal family.
In law, because the legislator cannot
exhaust all legal situations that may arise in
society and that have to be regulated, he
selects certain current types out o f the
diversity of possible relationships, excluding
the others. Using simplification methods, the
legislator chooses sometimes typification,
and other times classification.
The typological or t ypological-
classificatory method is used from ancient
times by legal sciences (e.g. from Roman
law we find out about the type of pater
familias). In general, legal typologies are
used in law by considering the real elements
and relationships in legal life in order to
know more precisely what mechanisms or
structural relationships have been
established in a range of legal issues
1
.
Laura - Cristiana SPĂTARU - NEGURĂ 49
LESIJ NO. XXI, VOL. 2/2014
We consider that typologies involve
the analysis of typical features between
different types of objects, phenomena,
processes and people. However, any
typology face a particular problem the
selection of the criteria underlying the
classification of the phenomena studied.
Because the typology represents a partial
synthesis, the social sciences use very often
the typological method, providing valuable
results.
2. Paper Content
Humans are social beings, but they are
also juridical beings - homo juridicus, who,
wishing to regulate and develop the human
society, understood that it is necessary to
create the law. Equipped with consciousness
and will, humans act in order to meet their
needs and interests, whether by respecting
their values protected by law, whether by
breaking them.
Law is conditioned by time and space,
and its history is lost in the mist of ti me.
Thus, using the historical method of legal
phenomenon research, we find out that law
appeared in the Ancient East. We note here
the cosmogenetic conception that
encompasses several philosophical ideas
crystallized in China and Ancient Greece,
ideas which constitute the basis of law.
An impressive feature of the entire
universe is diversity. Like there are not two
snowflakes alike, two leaves alike, two trees
alike, two people alike, two souls alike, there
are not two legal systems alike. But having
no unity around us, can we dream of
knowing the law of other societies?
Law is co nnected to the social
environment, being influenced by various
legal and extra-legal factors. Because of this
connection, the law evolves with the society,
and as Ihering said, law is not always and
2
Nicolae Popa, op. cit., p. 57.
everywhere the same. But people do not live
isolated. Since ancient times, they felt the
need to gather in communities. Today more
than ever, in this globalized world, people
come in contac t with each other. T his
requires an under standing of the rules
governing legal systems. It requires a
common understanding of people’s rights
and obligations. This thirst for knowledge is
watered by t he science of comparative la w,
which explains the institutions and lega l
concepts in the context in which it occurs, in
their dynamics, analysing the concrete social
conditions in which they arise.
The exis tence of legal constants
changes la w, its per manent evolution.
Thus, ther e can be no legis lation which
would be v alid for all times, b ecause in the
natural process of becoming law the legal
progress, that T urgot was mentio ning
about, inte rvenes.
Multiple forces drive divers ification
or the closeness of the national rights. Some
of these forces are not legal (e.g. geography
of the respective states, religion, politics,
economics, language). Others are leg al
because even the law can be “an accelera tor
of it s own dive rsity”. The comparatists do
not just try to est ablish the existence of
these forces, but they tr y to group them into
systems.
Analysing t he histo ry of law, we
distinguish the existe nce of overlapping
legal systems, fact that ra ises the question
of legal typologies. As I have und erlined
above, the typological method is widely
used in the social sciences (especiall y in
law), and it sup poses “no t consid ering
individual differences insignificant for the
given goal, s ince any typology is subj ect to
some research purpos es, especially in terms
of esta blishing uniformit y and expla natory
value”
2
.

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