DR. MIRO CERAR
III. FACTORS OF THE RELATNE AUTONOMY OF (MODERN) LAW
The factors that ensure the relative autonomy of modern law can generaiiy be divided into two groups: the iargeiy rurrnai raduns of the autonomy of modern law are its specific formalism, abstract nature, generality, systematicity, specific finguistic expression (legal language), and the professionalization of its agents; in the material (substantive) sense the autonomy of law is ensured primarily by its own historically developed and consolidated values (legal tradition), which are distinguished as a relatively independent whole from the political, moral, customary, religious, and other values.
If we briefly look at generality, abstractness, formalism, and systematicity, we can see that these four largely formal characteristics of modern law indicate a new quality as compared to pre-modern law.
Generality is a characteristic of the legal norm in that it does not aim at an individually determined person, but rather at a category of people, who are determined only by general characteristics. Generality includes a legal “depersonalization” of the subject, which appears along with the neglect of his individual and societal peculiarities. The main function of
generality is to ensure legal equality.
The abstractness of legal norms refers to characteristics of norms that through means of symbols and concepts rise above concrete cases and create a model of action, i.e. a pre-formed standard of future relationships and action. The main function of abstractness is to ensure legal predictability and trust in the law. Generality and abstractness help establish typical legal norms. This is especially characteristic of a modern state based on the rule of law that rejects medieval legal particularism, legal inequality, and the arbitrariness of authority. Formalism is an inevitable consequence of generality and abstractness in
law. It is that characteristic of the legal norm that makes it appear to us as a concept separated from concrete content, it establishes clearly formed demands in the process of the formation and use of the law. Legal formalism enables a technical-rational functioning of the state apparatus and other subjects, enabling parties to envisage legal consequences. Systematicity includes the tendency of the legal system to represent, to the greatest possible degree, a logically coherent, internally balanced,
and non-paradoxical system of legal norms. The main characteristics and functions of the legal system are manifested as ensuring the highest possible level of unity, coherence, and completeness of the law.
None of the four mentioned formal characteristics of modern law is an expression of ideologically neutral methods; instead they all represent an expression of a certain spiritually conditioned societal development. In the narrow sense, these characteristics are primarily an expression of the political demand of the modern society seeking to have such a legal form
secured. This corresponds to the values of the modern society and to its accompanying economic and political structure. to The formal and material characteristics of modern law are thus mutually dependent; the former cannot be understood without the latter. An important factor, which in the development of modern society has made a significant contribution to the high degree of autonomy of the law, is the formation of a broad stratum of people engaged professionally in the law and other specific properties of the law (i.e. legal formalism, the “monopolistic” nature of legal language.). An old saying from the time of the reception of Roman law exemplifies the importance of the personal element: “What a lawyer cannot contemplate does not legally exist”. This thinking is related to the methodological approach, which seeks a definition of the law merely by focusing on the subject which legal experts are dealing with. But this or any other closed definition of the law may lead to it being comprehended in an entirely self-referential manner and hence a circulus VltlOSUS. An example of such comprehension is the autopoietic definition (or theory) of law, which defines the law as a self-regulatory system capable of self-generation. This view of the law asserts its independence of religious, economic, and other historical constellations because it acts exclusively in accordance with the rules that it sets itself.13 The autopoietic definition (or theory) of law should have a liberating effect for law, but it is instead a distorted rational comprehension of a certain phenomenon (in this case, the law) in which a high degree of analytical or discriminating capability of rational thought is maintained. But, this paralyzes its irrationally conditioned developmental Uumping) component, because reason cannot succeed in breaking out of the closed system.
While an autopoietic comprehension of the law has a positive function, at least as it highlights the great importance of systemized positive law and as it intensifies the questionable nature of man’s objective capacity to appeal to transcendental values and other extra-legal conditions of lawfulness, it merits repeating that the law cannot, by its very nature, be an entirely independent whole. This is because the mediating role is one of its basic functions. Grasping the autonomy of the law as a relative and limited category also reflects man’s deep awareness of the allencompassing mutual connectivity of individual phenomena in the world. So the rational remodeling of this deep intuitive awareness, which links the law with extra-legal spheres, much more accurately reflects the authentic nature of the law than does the autopoietic or some similar rationalization of the legal phenomenon, such as Kelsen’s “pure theory of law.”
Returning now to lawyers and other subjects who contribute by their activities to the high level of autonomy of the modem legal system, we can see that these subjects belong to professional groups that establish a high degree of monopoly on the understanding and implementation of law. Lawyers and officials established this monopoly primarily from two perspectives: firstly, through their specific manner of organization and formalized (rigid) rules of operation; secondly, through the formation of a specific language of the law. Naturally, there is an essential difference between lawyers and officials. The position of lawyers and judges is much more independent. Accordingly, they can, to a relatively large degree, co-create the law. Meanwhile, public administration officials are much more hierarchically subordinated in their functioning and can within their competences only minimally co-create the law. Max Weber was amongst the first to more broadly point out the characteristics and peculiarities of the modem bureaucratic state apparatus.15 Among these characteristics, there are many that lead to the
monopolization of administrative activities by bureaucracy. These characteristics include the realization that administrative-legal regulations are extremely and specifically formalized, which lowers the comprehensibility of the law for the layperson. Conversely, the Judiciary and other activities of professional lawyers also establish numerous interpretational and legal sub-systems by their immanent formalism.
This, to a considerable degree, transforms the fundamental general messages of legal acts into “legal esoterica” . It is thus justifiably possible to consider legal or judicial formalism, as one of the central constitutive elements of the autonomy of the law.
Within the framework of legal formalism, special importance is placed on legal language. Legal language adds to the high level of autonomy of (modern) law. Naturally, legal language can never be completely autonomous since it is always a sub-system of the general language from which it takes the largest share of its formal and content-related characteristics. However, certain broader layers of the legal language are distinctly legally specific. This means that other language systems aspiring to express themselves through law (e.g. politics, economics, morals) have to significantly adapt to these layers. This is a common
practice used by the state or other political authorities whom are aware that a monopoly on the legal language is a powerful means of maintaining a monopoly on power. 18 The difference between various historical ways and the modern way of monopolizing the legal language is that in the past (e.g., in the middle ages) authorities often denied the public nature of the law or they arbitrarily and unpredictably created the law. Conversely, in modem society, the public nature of the law is one
of its fundamental principles. But nevertheless, due to its extreme extensiveness and complexity, the law remains to a large degree only in the cognitive reach of legal, administrative, and related occupations.
Alongside all the above-mentioned and largely formal factors of the relative autonomy of modern law, we should at least briefly point out a key substantive, content-related aspect of this autonomy, the valuerelated tradition of the law itself. The specific tradition of the law is a condition sine qua non of the autonomy of the law and its quality in terms of values. Even revolution that forcibly and radically eliminates some political and legal order at the same time always “assumes” some other political and legal history, for example, the bourgeois instead of feudal or the democratic instead of autocratic. Revolutions require the
parties to establish a new order, while either following the tradition of some other existing order or by following the example of a tradition formed by the fundamental premises of its philosophical-legal and social-theoretical doctrine Clearly, revolution can never be so radical as to momentarily completely break all forms of continuity with the former legal order, practice, and thinking. A part of the “old history” is thus for at least some time still preserved in various legal customs and legal
thinking. And as a rule a part of this history is preserved within a renovated institutional order.
Lastly, the key for understanding the relative autonomy of the law is examining the issue of the relationship between law and power/force, since the effectiveness of the law always depends on some kind of normative, cognitive, or other power, and in the final consequence also on physical force (coercion). The principled question that arises first in connection with this is “whether force is merely a means of realizing the law,” as is usually claimed by traditional legal theory, or is force actually the content of law itself? as some important legal theorists think (e.g., Karel Olivecrona, Hans Kelsen, Alf Ross.)19 It should at this point be
briefly emphasized that the power of law is also expressed through force, which is immanent in legal norms, but this manifestation of power just by itselfdoes not ensure also actually effective force. The law can also be defined as a system of rules about force, but law by itself, without “assistance from outside”, cannot fully realize such force. Accordingly, the law needs politics and political power2° and in a broader sense morals, customs, etc, which are in agreement with the law as a whole.
This in turn enables and ensures its effectiveness through its institutions specialized also for the implementation of physical force.