Uwagi o tradycji w prawie

Abstract

The aim of the article is to justify the need of a creative use of tradition when making laws. The authority of our predecessors does not weigh more than our brain, and respect for tradition does not require a constant use of the “old and the previous”, but a critical and creative reception of what used to be good. Law changes should be made carefully and only when truly necessary: the person changing anything ought to justify it. Tradition is not a halt of development but its assumption and condition. Were it not for the use of experiences of the old generations, each community would have to “start from the scratch”, whereas humanity would still be in the same place. The law maker should think not in a revolutionary, but in a historical way. He/she should think of tradition in broad terms, in line with its reception, efficiency, but also its weaknesses, unreliability, and law powerlessness, paying a special attention to the worked-out standards and law experiences of different nations, including the undesired results caused by the law created “against”, against people treated as enemies. In the light of various expectations connected with law, one should not forget about its peculiar value and well-known possibilities. Though, it is not the name, but the object named and its position within the century-long transmissions constituting the legal tradition of our civilization that decides if the product should be called “law”.