some other existing order or by following the example of a tradition
formed by the fundamental premises of its philosophical-legal and
social-theoretical doctrine Clearly, revolution can never be so radical as
to momentarily completely break all forms of continuity with the former
legal order, practice, and thinking. A part of the “old history” is thus for
at least some time still preserved in various legal customs and legal
thinking. And as a rule a part of this history is preserved within a
renovated institutional order.
Lastly, the key for understanding the relative autonomy of the law is
examining the issue of the relationship between law and power/force,
since the effectiveness of the law always depends on some kind of
normative, cognitive, or other power, and in the final consequence also
on physical force (coercion). The principled question that arises first in
connection with this is “whether force is merely a means of realizing the
law,” as is usually claimed by traditional legal theory, or is force actually
the content of law itself? as some important legal theorists think (e.g.,
Karel Olivecrona, Hans Kelsen, Alf Ross.)19 It should at this point be
briefly emphasized that the power of law is also expressed through force,
which is immanent in legal norms, but this manifestation of power just
by itself does not ensure also actually effective force. The law can also be
defined as a system of rules about force, but law by itself, without
“assistance from outside”, cannot fully realize such force. Accordingly,
the law needs politics and political power2° and in a broader sense
morals, customs, etc, which are in agreement with the law as a whole.
This in turn enables and ensures its effectiveness through its institutions
specialized also for the implementation of physical force.
IV. THE STATIC AND DYNAMIC NATURE OF MODERN LAW
Goethe once said “all periods that regress and decay are subjective, while
periods of progress have an objective orientation.”21 While it is true that
this oscillatory and dualistic perception of the world does generally
accompany human development, this or any other bipolarity is, in the
holistic sense, merely illusory. In the creation and study of the law, it is
always necessary to rise somewhat above the current time and space to
see social fluctuations as only a reflection of a general law of relativity
which pervades the human world. In this case, it is not a matter of
emphasizing the conservative nature of the law mentioned earlier, but
- For more detail on this, see Bobbio, 1988, pp. 51-61 .
- Habennas, 1997, p. 134, is of the opinion that the law presupposes political power, and that
this power is actually constituted in the fonn of law. - From Kaufman, 1994, p. 29
