University of Warsaw
Ius publicum privatorum pactis mutari non potest vs. postmodernism
The purpose of this essay is to examine connection between trends in the modern world and
modern theory of law. Alternative dispute resolutions are to be considered the effect of such
correspondence. This shall be achieved by the presentation of some theories of law. Each of
them will be discussed with the audience to find its utility and consequences of its application.
The analysis will begin with the answer to the question about positivism. Definition of
positivism used for the sake of our discussion is the one created by John Austin, who
described positivism as consisting of three elements. These were: the order given by the
sovereign authority, obligation to obey that order and sanction which is to be implied in case
of disobedience. Such understanding of law implies the following thesis:
Law of the particular state is the superior order within its territory and as a result there are no
limits to the subject of its regulation. Law is being created in a form of an unilateral and
authoritarian decision of the governing body. These decisions are issued as the official
documents and therefore can be identified only by making reference to them. Law is
independent from any other normative systems and incompatibility with them does not entitle
to disobey legal norms. Finally, if we accept positivist approach we have to accept that a
lawyer is expected to interpret legal texts.
In the course of discussion I would like to analyze consecutively the statements listed above.
Fist argument against them is provided by Neil MacCormick who questioned that there are
sovereign states at all. The next one will come from H. L. A. Hart who, instead of law based
upon enforcement, suggested the view of the law as based upon primary and secondary rules.
Also, his argument, that act of interpretation has creative, rather than reproductive character,
is to be used to undermine exclusivity of official documents as the source of law. At this stage
participants of the discussion will be engaged to find out if the presented arguments are valid
and what are or could be the possible consequences in the case of a positive answer..
Two concepts of law, understood as a social technique and as dialogue will be the subject of
the analogical study in order to find if these conceptions have the potentiality to face problems
that undermines positivism. The first concept is an extension of positivism and, hence, an
attempt to adjust it to the requirements of the modern world. It is based upon three
fundamental ideas. Bureaucratic apparatus, with organized hierarchy, vertical system of
communication relying on obedience, procedures and general norms which serve as the base
for decision making. These elements are expected to guarantee apolitical and professional
character of the system. The second fundamental idea is constituted by the concept of the
welfare state according to which state determines objectives that it should obtain and measure
which will be used.
Law here is understood as such a measure. List of these fundamentals shall be closed by
postulate of rationalization. This is connected with appreciation of the efficiency which
requires engagement of scientists and experts in the process of law creation. What should be
pointed out is the fact, that science determines not only the measures but also the objectives.
This is because availability of measures is the limit for the availability of the objectives.
Law as a dialog ruptured with the strand modernism and positivism. We can account it in the
stream of postmodernism. This understanding of law is, consecutively, connected with the
notion of autopoietic system and J. Habermas’ concept of discourse. The autopoietic system
possess property of auto-reproduction, auto-reference, auto-regulation and auto-organization.
In other words system creates its own elements and controls its own operations. Such system
cannot be controlled vertically and arbitrary. There is no possibility of finding casual relation
between action taken by different autopoietic systems. Modern social structure seems to
consist mainly of such systems, and that may cause inadequacy of described above
approaches to law. The foundation for the new way of understanding law is prepared by J.
Habermas and his concept of discourse. He distinguished acts of communication. They are
aimed at achieving consensus. According to this conception, justified is what was approved
by everyone engaged in the discourse. This leads to the notion that justification of law is not
limited to interpretation of legal norm, but depends on procedure determining discourse. We
call it legislation of due guaranties. It is concentrated on procedures instead of rules, which
are not understood as technique of solving matter (applying rules) but as autonomous way of
making a decision. If it organizes process of collecting information, exchange argument and
making a decision in the way that the result can be conceded fair, then we can say it
guarantees justice or, how Rawls called it – the procedural justice. Here comes the alternative
dispute resolutions idea which seems to be the effect of the above mentioned trend in the
thinking about law. Whether they can face all the problems and how far better they can do it
then the classical – judical method is the final questioned and therefore being discussed