The Conditions of Possibility for Nomostasis: A Contribution to the Theory of Legal Survivals
The Conditions of Possibility for Nomostasis: A Contribution to the Theory of Legal Survivals

Summary/Abstract: The purpose of this paper is to provide for a theoretical reflection concerning the continued use of certain legal institutions, concepts, rules or principles outside the socio-economic or political context in which such legal morphemes (known as “legal survivals”), were created. In order to refer to the phenomenon of endurance of legal survivals following a transformation, transition or revolution, the paper will use the term “nomostasis,” coined from the Greek words denoting “law” (nomos) and “resistance to change” or “stability” (stasis). The goal of the present paper is to formulate a number of hypotheses concerning the conditions of possibility of nomostasis with view to creating a theoretical scaffolding to be later filled with empirical, sociohistorical case-studies. For this purpose, the paper isolates and groups two types of factors enabling or favouring nomostasis: (1) endogenous ones, i.e., those pertaining to the juristic community as such and (2) exogenous ones, i.e., those pertaining to the environment within which that community functions, most notably the political and ideological climate. By contrast, the present paper does not address the question of intrinsic features of legal morphemes that may or may not favour nomostasis. The main theoretical hypothesis advanced in the paper is that for nomostasis to occur, one can typically expect there to be a need for a favourable combination of endogenous and exogenous factors. The paper is intended to provide elements of a theoretical framework for further empirical sociohistorical research on nomostasis within the broader framework of the historical sociology of law as a specific sub-discipline at the interstices of sociology of law and legal history.

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