Legal survivals: concept, theory, methodology

Abstract

The present conceptual paper addresses selected issues concerning the emergent pluridisciplinary research topic on survivals—an essential part of the phenomenon of nomostasis—with particular emphasis on its theoretical underpinnings and methodological implications. It argues that the concept of a “legal survival” should be understood as a legal form (a legal institution, i.e. a set of functionally interconnected legal norms, a legal concept, a legal principle, or a legal rule) which had emerged in an earlier socio-economic, political or ideological-cultural context, and had had a specific function within that context but did not disappear despite a profound change of that context. A systemic transformation, such as the transition from feudalism to capitalism, from capitalism to state socialism, or back to capitalism, is a paradigmatic example of such a profound change of context, though not the only possible one. The paper addresses the ontology of legal survivals, drawing attention to the distinction between written law and legal practice, and formulates three tentative propositions concerning the theory of legal survivals: (1) the law of juristic inertia, which emphasises that lawyers tend to use old forms to express new content; (2) the law of functional adaptation of legal forms, which emphasises that old legal forms may be used to fulfil entirely new social functions; and (3) the law of decontextualisation of legal form, which emphasises that law oftentimes becomes entirely detached from its changing social context, even to the extent of becoming an irritant. Finally, the paper addresses the question of the methodology of studying legal survivals, arguing that it calls for a broadly inclusive pluridisciplinary approach, uniting the methods typical of legal history, comparative law, sociology of law and legal anthropology, with an overarching role for legal theory and the philosophy of law.