THE JUST LAW AND ITS EVALUATION IN LEGAL AND POLITICAL THOUGHT AND PRACTICE IN PRE-CONSTITUTIONAL EUROPE (UP TO THE 18TH CENTURY). GENERAL REMARKS
THE JUST LAW AND ITS EVALUATION IN LEGAL AND POLITICAL THOUGHT AND PRACTICE IN PRE-CONSTITUTIONAL EUROPE (UP TO THE 18TH CENTURY). GENERAL REMARKS

Summary/Abstract: The question about a good, equitable and just law has been posed for centuries. It concerned the investigation of the essence of the law itself as well as the quest for a measure with which to evaluate the law, and finally, the indication of institutions to carry out such an evaluation and the determination of its possible consequences in the event of a negative outcome. Today, in many countries, this is the domain of the judiciary, with constitutional norms being the criterion for evaluation. The adoption of such an arrangement is associated with the recognition of the supremacy of the constitution as a legal act. Institutional forms of examining the constitutionality of statutes, as well as the compliance of the actions of the executive power with the provisions of statutes, did not develop on a larger scale until the end of the 19th century and grew out of the tradition of judicial review on the one hand, and the concept of the Rechtsstaat on the other. However, the road leading to the solutions adopted at that time was long, and it is worth tracing back. This article will present the main directions of solutions starting from antiquity and ending at the end of the 18th century, when the doctrinal background for the political structures introduced from the 19th century onwards had already developed. We describe the consequences of the Greek belief that the law is good by definition, Roman tradition that the law is the measure to solve the practical cases, the Middle Ages’ dispute on the nature of the king’s legislative power defined by two formulas from Digesta, ‛princeps legibus solutus’ and ‛princeps legibus alligatus est’. Finally, we present the thought of Edward Coke, chief justice of the Westminster Courts, on the supremacy of the common law, particularly expressed in Bohnam case (1610), and the activity of French parlements (supreme courts), in the 16th–18th centuries as the roots of judicial review procedure and the Rechtsstaat concept.

• Details
• Contents