Towards a Typology of Dimensions of the Continuity and Discontinuity of Law: The Perspective of Polish Private Law after the 1989 Transformation

Mańko, Rafał

doi:10.1515/wrlae-2018-0007

Cited by 4 publications

(1 citation statement)

References 9 publications

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“…Ad 3. The concept of legal continuity refers here to the on-goingness of the positive law, including its structure, fundamental principles, conceptual framework, and individual institutions and rules (Mańko 2018a). The notion of legal continuity, understood in this way, should be differentiated from the social function of legal institutions (Mańko 2018a, 118), which is treated for our present purposes as a different criterion.…”

Section: Criteria Of Delimitationmentioning

confidence: 99%

Delimiting Central Europe as a Juridical Space: A Preliminary Exercise in Critical Legal Geography

Mańko

2019

FOI

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The aim of the present paper is to contribute to the on-going discussion, both in legal theory and in comparative law, concerning the status of Central Europe and its delimitation from other legal regions in Europe, notably Romano-Germanic Western Europe but also Eastern Europe and Eurasia. The paper adopts the methodological perspective of critical legal geography, understood as a strand of critical jurisprudence laying at the interstices of spatial justice studies, critical geography, comparative law, sociology of law and legal history. The paper proceeds by identifying the notion of Central Europe with reference to a specific list of countries, then proposes a number of objective criteria for delimitng Central Europe and applies them in order to highlight the difference between Central Europe and other adjacent legal regions. Following that, the paper enquires as to whether Central Europe should be deemed to be a ‘legal family’, a ‘legal union’ or simply a ‘legal space’ or ‘space of legal culture’.

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Section: Criteria Of Delimitationmentioning

confidence: 99%

Delimiting Central Europe as a Juridical Space: A Preliminary Exercise in Critical Legal Geography

Mańko

2019

FOI

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Legal Survivals and the Resilience of Juridical Form

Mańko

2023

Law Critique

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Legal institutions are created at a certain point in time, intended to be applied to ‘life’ as it is perceived at the specific moment when they are elaborated and cast into legal form. As a result, legal institutions always already refer, in their original design, to a certain normality, but between the moment of creation of a legal institution and its application to future situations there is always a certain time lag. Some legal institutions—referred to in the paper as “legal survivals” –outlive the epoch in which they were created and continue their legal life long after the conditions which lead to their creation had, in the meantime, disappeared. The aim of this paper is to put forward an archaeologico–genealogical perspective on legal survivals not only as a method of studying continuity of law and the resilience of juridical form, but also as a line of enquiry capable of enriching our understanding of the juridical in its relation to the changing circumstances of life. The study of legal survivals allows to combine three aspects of legal continuity: firstly, the continued use of the same legal forms in different circumstances and for different purposes, whereby the same juridical form is filled with different socio-economic substance; secondly, the gradual adaptation of legal forms to new circumstances; thirdly, the emergence of new legal forms in close reference to old ones. The study of legal survivals allows to address the foundations of law’s claims to authority, based on stability and predictability of juridical forms. It also reveals the complex and multilayered nature of legal form which effectively has the structure of a palimpsest.

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Legal Transplants, Legal Survivals, and Legal Revivals: Towards a Reconceptualisation of The Circulation of Legal Forms in Time and Space

Mańko

2025

FOI

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When Alan Watson introduced, back in the 1970s, the concept of a legal transplant, also known as a legal transfer, he revolutionised comparative law and comparative legal history by showing that most of legal development takes place through borrowing. However, his notion of a legal transplant conflates two quite different realities: on the one hand, the borrowing of legal forms from other, simultaneously existing legal systems (such as the transplant of the Swiss Civil Code to Atatürk’s Turkey) and, on the other hand, the rediscovery of old legal forms and their “borrowing” from long defunct legal systems (such as the rediscovery of Justinian’s Corpus Iuris Civilis by medieval lawyers in Western Europe, and the infusion of Roman ideas about contract law into existing customary rules). Although there are certain formal similarities between the two phenomena, this article will argue that they should not be conflated, especially given the sharp socio-legal difference between borrowing from a living legal system (with a functioning judiciary and legal academia) and the cultural appropriation of historical legal material for contemporary legal purposes. In this vein, the present paper – drawing on Theo Mayer-Maly’s concept of “return of juridical figures” and Tomasz Giaro’s concept of a legal “resurrection” or “borrowing from the past” – proposes to introduce a new notion of “legal revivals” and carefully delimits them from legal transplants, on the one hand, and legal survivals, on the other. One of the characteristic features of legal revivals is the use of the resources of legal history for the purposes of contemporary legal innovation.

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Towards a Typology of Dimensions of the Continuity and Discontinuity of Law: The Perspective of Polish Private Law after the 1989 Transformation

Cited by 4 publications

References 9 publications

Delimiting Central Europe as a Juridical Space: A Preliminary Exercise in Critical Legal Geography

Delimiting Central Europe as a Juridical Space: A Preliminary Exercise in Critical Legal Geography

Legal Survivals and the Resilience of Juridical Form

Legal Transplants, Legal Survivals, and Legal Revivals: Towards a Reconceptualisation of The Circulation of Legal Forms in Time and Space

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