Law, values and creativity of legal order (summary)
The article discusses an issue of legal order creativity in the context of relation between legal norms and values. There are two diff erent solutions of this issue in legal philosophy: one elaborated by legal positivism and the other supported by schools of natural law. The former underlines freedom of lawmaker to create legal norms whereas the latter speaks of obligations of lawmaker to protect some moral values. Lack of any restraints in shaping the content of legal norms seems to be a great weakness of legal positivism. As a result, there is a risk of a lawmaker dictatorship, that is an overcreativity in contemporary legal systems, including democratic states. On account of multilaterality of a lawmaking process, international legal order seems to be better safeguarded against this risk. On the other hand, natural- -law standpoint suff ers from ambiguity of a moral core which should be protected by legal order. That is why the Author argues that each of these doctrines requires improvements. According to the Author, creativity of legal order can only be justifi ed by protecting axiological identity of society. Consequently, a good lawmaker should posses both knowledge of social problems and axiological wisdom.
 1-2010 Kwiecień.pdf | 598 kB |
