Understanding Law – an Answer to Leonid Pitamic

Abstract

Pitamic’s contribution to the understanding of law ranges between the methodological purity of legal science and an integral conception of law. The methodological purity demands that one avoids mixing different thinking methods. At the same time, however, law as a pure normative structure must also have adequate material prerequisites. The essential elements of an integral conception of law are order and humaneness. The task of law is that, by regulating external human behaviour, it “ensures that people in a community live as human persons.” Pitamic’s challenge opens very broad creative possibilities. For the author of this paper, it is of special importance that Pitamic’s theory also fecundates the modern theory of argumentation in law. The methodological pluralism makes it possible to accept the theory of graduated legal order and to treat it contentually. It is of decisive importance to differentiate between the legal text and the understanding thereof. Acting in a responsible manner, one cannot avoid the arguments of understanding. The work of a lawyer is creative, yet it also burdens him with responsibility that has to be borne. The judge or any other decision-maker must be aware that, as Pitamic would say, hominum causa omne ius constitutum. If we deviate from this route, we betray law and its nature. If we remain on this course, we can contribute - sometimes more and sometimes less - to the rule of law. It would be naive to think that we shall reach the Golden Age the poet Ovid was talking about, but it is realistic to think that we shall be able to live reasonably securely.