Teoretyczne zagadnienia standardów w prawodawstwie w stosowaniu prawa
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Date
1989
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Wydział Prawa i Administracji UAM
Title alternative
Theoretical problems of standards in law-making and application of law
Abstract
The term „legal standard" is polysemiec and fuzzy in all languages related
with law. The author singles out five basic uses of the term in question: (SP-1)
standard as a legal rule;(SP-2) standard as a general clause; (SP-3) standard as
an evaluation, (SP-4) standard as a legal principle; (SP-5) a technological standard.
Each type of the singled out standard is analyzed. The standards SP-1, SP-2,
SP-3 and SP-4 are interconnected and have a „family resemblance", whereas
SP-5 stands apart, because the former group functionally serves the elasticity of
law-applying decisions, and SP-5 restricts the variety of technology and its products
by fixing quantitative requirements.
The use of SP-1 is related to the conceptual identification of a legal rule. SP-2
involves various constructions of general clauses, which are either identified with
SP-2 or SP-2 appears as a sub-class of the clauses in question. SP-3 implies axiological
conceptions of values polarized in the opposition of cognitivism and noncognitivism.
SP-4 is linked with different constructions of the principle of law
and especially with the widely discussed comparison of rules and principles.
Standards are linked with the choice of law-making technique which usually
is a compromise between following the natural common language and shaping
a precize artificial language. An use of standards delegates to the law-applying
agencies the power to determine the solution of concrete cases. The discussion of
the role of standards in application of law is based on the analysis of the normal
formulas of the fractional decisions of the application of law (decision of validity,
of interpretation, of evidence, of choice of consequences). The standards could
function as applied rules, as directives of the application of law and as values justifying
decisions. The way of using the standards depends not only on the formulation
of applield legal texts but also on the accepted ideology of the application
of law.
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Digitalizacja i deponowanie archiwalnych zeszytów RPEiS sfinansowane przez MNiSW w ramach realizacji umowy nr 541/P-DUN/2016
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Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 51, 1989, z. 3, s. 1-13.