General Objectives of Legal Theory and Significance of Values in the Context of Globalisation

Author:Raul Narits
Position:Professor of Comparative Jurisprudence, University of Tartu

1. Contemporary law as a global information and communication medium - 2. Horizon of value jurisprudence 11   - 3. 'Umbrella' or 'home' - 4. Contribution of jurists - 5. Methods to develop legal order - 6. Practical enhancement of legal order: 'case of the adoption of the euro' - 7. Conclusions


Raul Narits

Professor of Comparative Jurisprudence, University of Tartu

General Objectives of Legal Theory and Significance of Values in the Context of Globalisation

This article will discuss some of the important issues that are related to the developments and prospects that have taken place in legal orders over the past few years, proceeding from both the aspect of doctrine and that of legal practicality. It is important to note that for quite a while, the developments that have taken place, and the future prospects, are emerging in a completely new context - in the context of globalisation2.

1. Contemporary law as a global information and communication medium

Over the past few decades, developments in the world, including the integration process in Europe, have rendered societies and countries increasingly dependent on the efficiency and quality of communication. A number of countries, both in Europe and elsewhere, have set out to systematically explore the changes that are characteristic of information societies as well as the need for reflecting them in law, along with the possibilities of law in these new circumstances. At international fora, people are speaking more and more often about global legal integration since one of the most characteristic features of contemporary communication is its cross-border nature. However, applicable legal regulation is frequently limited in geographical, social, economic, information technology and other terms. The issue of the globalisation of law concerns the feasibility, reality, necessity and advisability of globally applicable law. M. Shapiro in his article recalls E. Zitelman, who as early as in 1888 raised the question of the feasibility of world law3. The concept suggests that global law is the worldwide (global) integration of law. This can be achieved if states are proclaimed to be subjects of global legal integration. Yet the subjects of such integration are not only individual states but also regional, supraregional and world organisations.

Historically, the European judicial area has been shaped primarily by two different types of legal culture: the continental European or regulation-based one, which can be conditionally referred to as civil law, and common law or the overall law generated by the work done by courts, in which the premier source of law is a court judgement or more specifically the binding part of it - ratio decidendi. The traditions have served as the bases for long-term developments in national legal orders. The Estonian legal order belongs, through historical developments, to the legal order based on civil law. That is why it has been important for our jurisprudence to proceed from the dynamic doctrine of continuity after Estonia re-established its independence. However, it was equally important to understand that the interrelationships of all societies structured as states, as well as other subjects of international law, were organised by international law as a system comprising provisions of law, generally recognised legal principles and customs, which regulated the relations between sovereign states and other subjects of international law. The law of the European Communities or European Union law must be regarded as the third structure of law. In fact, since 1993, it has been correct to speak about European Union law which is connected to the entry into force of the Maastricht Treaty. Fourthly, it must be noted that the European Union is an integration organisation, above all, through its law, and the European Court of Justice plays a very important role in it. According to article 7 of the Treaty establishing the European Community and according to article 3 of the Treaty establishing the European Atomic Energy Community, the tasks entrusted to the Community shall be carried out by the five central institutions which comprise the European Court of Justice, founded in 1952. Namely, the Court of Justice develops European law, shaping and even establishing the general principles of law, while also ensuring the protection of human rights in the European Union. The Court of Justice has a decisive say in interpreting European law and in determining its applicability. Thanks to the decisions of the Court of Justice, ius scriptum, or written law, may be reshaped.

All of the named legal domains are related to certain parts of reality and are thus relatively independent social systems when proceeding from the systems theory. The two main characteristics of each system are its non-amorphous nature and integrity. The non-amorphous nature means that the system may contain different elements that are related to each other in a particular manner, while integrity or homogeneity implies that the system is separated from other systems. Taking this underlying principle of the systems theory as the basis, we must understand and recognise at least the very nature of the legal realities existing in the European judicial area and their mutual relationships.

However, just as important as seeing and distinguishing between the various contemporary legal structures it is important to acknowledge that the legal systems of the modern world do not ultimately serve as different and independent structures. In the context of the systems and communication theory, this means that the legal structures of the modern world are not independent communication systems, but instead comprise a global information and communication system4. Here it is appropriate to recall that less than two years ago a collection of works with the bearing the interesting title "Constitution in Discourse with the World", was published to celebrate the 70 th birthday of the well-known European expert in constitutional law P. Häberl5. The problem is that integration processes in Europe and on a wider scale the globalisation process as a whole, have sharply highlighted relations between different legal orders. This means, inter alia, that questions about the legal order of a state and its legitimacy, have gone beyond the traditional legal paradigm and serve in essence as a problem of law as a cross-border regulatory communication6. In the bulletin of the international conference "Regulatory Communication and Regulatory Communication Structure of Legal Systems in the Rule of Law, Global and Universal Dimensions" Tartu, 2006, the Associate Professor I. Kull writes in her theses: "Regulatory communication as interaction represents by nature the co-existence of at least two important dimensions, those being distribution and dissemination." The harmonisation of law on the level of the secondary legislation of the European Union has reached the stage in which the formulation of uniform provisions on the level of acquis has given rise to the development of novel regulatory communication structures. The purpose of the EU common frame of reference 7 is to improve the logical coherence between the applicable acquis and the one to be adopted in the future and to promote the development of consumer policy strategy, specific guidelines, and the terms of contract comprising the entire EU, to furnish legal notions with clear definitions, to formulate the main principles of contract law and coherent exemplifying rules, proceeding from the legal order of the European Communities and the best solutions available in the legal order of the member states. Thus, regulatory communication structures are created by means of the guidelines determined by the Commission of the European Communities, through which new information will be distributed and disseminated in national legal orders. She rightly adds that the activities of jurisprudents in introducing, explaining and extrapolating their national law are above all significant for the internal development of national law, contributing to the understanding of the development of law, influences originating from other legal orders and relation with the other walks of social life8. The contemporary literature on legal theory uses the term 'glocalisation' to denote a situation in which the global and the local are closely interrelated9. Every state that is shaping its national legal order today must take account of such regulatory and institutional relationships. We first mentioned the significance of the doctrine of continuity for the development of the Estonian legal order after the reestablishment of independence. In other words, restitutive legal policy was implemented in Estonia after restoration of independence. This was very reasonable; yet the multiplicity of legal reality - to be more precise, of legal realities - puts in the limelight not only relations between ethics, policy and law, but the question of a particular political and legal world ethos. This is 'the foundation of a world union to be created'10. Regulatory landmarks that have been fixed by symbols and culturally shaped are found not only in ethics, politics or religion. They are also found in law. Hence, the methodologically verifiable legal perception must also be communicated rationally and not get stuck in some limited space and time. That is how the legal theory developing on the basis of perceptive and scientific programmes can offer 'suggestions for conduct'.

2. Horizon of value jurisprudence 11

The Estonian legal order is in a state of discourse, in a state of discourse with Europe and why not also with the entire world. T.-H. Ilves, who represents Estonia in the European Parliament, writes: "If you want to be with us, Europe announces, become like us. That was an offer that was hard to refuse. Chasing the carrot of European Union membership, the parliaments and...

To continue reading