THE NOTIONS OF „GIVEN” AND „CONSTRUCTED” IN THE FIELD OF THE LAW

Abstract

Montesquieu drew attention on the fact that “the laws that seem opposed are in some cases based on the same spirit”. In this context, we will attempt to answer the following question: can the lawmaker create (“originate”) the law by simply establishing norms in the form and upon the procedure required by laws or, on the contrary, besides these “exterior marks”, is the lawmaker conditioned by some merits, contents criteria the efficiency and validity of legal norms depend on? The scientific research pursues at detecting that process of transition from “given” aspects to “constructed” aspects, from what it is to what it could be, from indicative to imperative. Social effectiveness of law depends on the degree of compliance between “given” and “constructed”.

Keywords

• given
• constructed
• sources
• norms
• lawmaker.