Considerations regarding the Communication of Law as an Auxiliary Field of Research within the General Theory of Law

By Niemesch, Mihail; Butculescu, Claudiu Ramon D. | Contemporary Readings in Law and Social Justice, July 1, 2017 | Go to article overview

Considerations regarding the Communication of Law as an Auxiliary Field of Research within the General Theory of Law


Niemesch, Mihail, Butculescu, Claudiu Ramon D., Contemporary Readings in Law and Social Justice


1.Introduction

The science of law is a science of values, a science of norms and a science of reality. The law should not be considered as an outer packaging for the Public Authority's decisions, but a language with structural content, a result of confrontation between interests and values (Voicu, 2013: 10).

The nature of law as a science has been questioned, raising the issue of whether the law is more than only an art or a technique. According to researcher Pierre Pescatore as quoted by Sophia Popescu, "law is both science and art. The law, as a normative system, may be known and studied, and from this point of view, we can take into consideration the science of law, but above all, law as a normative system, should be transposed into practice, in social life and from this second point of view, the law must intervene as art and technique, making practical science (savoir faire or know-how) of those who are called upon to draw laws, that is, about technics and technique application of legislative, judicial and administrative practice." (Popescu, 2000: 10)

Among the social sciences, the science of law occupies a special place of social impact. The system of legal sciences (juridical sciences) consists of the following parts:

- General theory of law;

- Legal sciences related to various branches of law;

- Legal historical sciences;

- Auxiliary legal sciences.

2.Considerations Regarding the General Theory of Law

General theory of law or as it is more generally known: "legal theory" is the "locomotive" of legal sciences, as it tackles law in its entirety and it is not restricted to a specific point within law, as do the other Science Branches. In addition, legal theory is not limited to a certain period of development of the human species, as do historical sciences. In conclusion, the general theory of law is part of the legal sciences that studies law in general and synthetic manner, entirely in terms of theory.

As described in the specialized literature (Cf. idem, 33), the purpose of the general theory of law is to explain the elementary and common legal concepts and principles, which apply to different branches of law. This can only be achieved by researching all branches of law, and also international and foreign law in which such concepts or notions are to be found.

General theory of law has a profound explanatory character, presenting the legal reality without ignoring specific elements within legal branches of law. General theory of law highlights the items common to all legal sciences.

Nicolae Popa (2012: 7) showed that the need to study the general theory of law is dictated by requirements both purely theoretical, and also practical. The need for a uniform and comprehensive legal theory is in direct relation to its ability to provide accurate satisfactory solutions for the relevant practical problems arise in legal reality.

Under this aspect, within specialized doctrine (Popescu, 2000: 36), arose the question of the necessity of general theory of law for the training of future practitioners. To this question, it was answered that legal theory presents a first advantage, stimulating legal thought, compared with mere accumulation of legal knowledge. In addition, in many countries there is a tendency that Legislative Authority intervenes more and more in all sectors of activity, and as such, the provisions and regulations become more detailed and more technical. However, unforeseen circumstances arise, which will no longer fall under the scope of the legal regulations in force, giving birth to what is called a "legislative vacuum." At the same time, a reverse situation may appear where the excessive drafting of regulations leads to contradictions between large numbers of legal norms. In both hypotheses, the operator of law must use the general principles of legal theory, various reasoning and legal common means of interpretation, in order to find solutions in concrete legal case law. …

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