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Legal system. System. System is a set of components (elements) forming an ordered and integrated whole. . Legal system. Elements that are creating legal system according to the legal doctrine are: Branches of law Legal acts Legal provisions Legal norms. Legal system.
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System • System is a set of components (elements) forming an ordered and integrated whole.
Legal system • Elements that are creating legal system according to the legal doctrine are: • Branches of law • Legal acts • Legal provisions • Legal norms
Legal system • The most common (in the legal doctrine) is to use term legal system with reference to the set of valid legal norms that fulfils criterias of systematic conception of validity
Concrete legal system – set of norms effective in a certain place and time • Legal system „Typ”: • Common law • Civil law
Legal system orderliness issue deals with such problems as: • Vertical systematization • Horizontal systematization • Completeness and coherence (postulates)
Vertical systematization • Legal system vertical systematization assume the existence of material and formal relations between the norms. • These relations are such as: • Substance of a superior norm in the hierarchy is determining the substance of the inferior norm – Constitutional Tribunal Material character
Superior norm determines the competence to promulgate inferior norm • Superior norm can derogate or change inferior norm Formal character
Constitution Statute Ordinance
Horizontal systematization • Branches of law : • Civil law • Constitutional law • Criminal law • Horizontal systematization Criteria: • Subject • Method • Entity
Completeness and coherence • Postulate of completeness – lack oflacunas (loopholes) in the legal system • Postulate of coherence
Lacuna in the law lacuna AXIOLOGICAL CONSTRUCTIONAL Extra legem Contra legem specific technical
Axiological Lacuna • Outcome of comparing the existing legal system with ideal one: • Extra legem • Contra legem • Axiological Lacuna = virtual lacuna
Constructional Lacuna • Constructional Lacuna – unintentional lack of regulation: • Specific lacuna - lack of norms which should be established according to another norm – legislative process was unfinished; • Technical lacuna - legislative process was finished but it’s still missing some provisions or some regulation is incomplete.
Types of Collisions • COLLISION AXIOLOGICAL PRAXEOLOGICAL • LOGICAL opposition contradiction
Logical collision • Logical collisions - have analytical character • Contradiction – only one norm could be observed • Opposition - equal hypothesis and different dispositions. Both norms could be broken in the same time
Praxeological collision • Praxeological collisions – have practical character: • implementing one norm could make implementation of another one much more difficult or unreasonable, aimless; • Implementation of both of them leads to contradictory goals
Axiological collision • Axiological collision - contradiction between two values. • Lawgiver in one norm prefers value X then value Y, but in other norm he prefers value Y than value X.
Collision rules - “the first order rules of collision”. • Lex superior derogat legi inferiori - superior norms suppress inferior norms; • Lex specialis derogat legi generali - particular norms suppress general norms; • Lex posterior derogat legi priori - later norms suppress earlier norms.
Collision rules -“the second order rules of collision”. • lex superior prior derogat legi inferiori posteriori - earlier superior norms suppress later inferior norms, • lex superior generalis derogat legi inferiori speciali - superior general norms suppress inferior particular norms, • lex prior specialis derogat legi posteriori generali - earlier particular norms suppress later general norms.
Whenever the use of first order rules leads us to a contradiction, we employ a second order rules