About the law-creating power of jurisprudence. New dimensions, new meanings

Abstract

The present study takes up in its analysis an older concern. The “force” of jurisprudence to create law – whether formally recognised or not – is still a theme of scientific interest, especially from the perspective of the original meaning and substance of the notion of jurisprudence, and less from that which sees jurisprudence as a sum of solutions, an inventory of court practice, an indicator in a report with statistical content.

We are confident of the usefulness of our approach, based on a legal reality that needs to be constantly diagnosed, the study comes as an "update" of a documentation exercise that we carried out a decade and more ago, a context in which the concern for placing jurisprudence in the general picture of the sources that inspire law needed to be verified in a necessary relationship with the exercise of power, the quality of the act of justice being an important parameter for realistically measuring the state’s chances of being a state where law reigns.

Thus (briefly) reiterating some of the issues raised at the time[1], keeping the treatment established by the general theory of law and circumscribed to our legal reality, the study captures, in a sum of reflections, the recent line of thought on the question of whether jurisprudence, always called upon to keep up with the times, has or does not have the power to create law.

[1] On the issue, S. Ionescu, La jurisprudence – source de droit, in the Annals of the Faculty of Legal Sciences – French edition, no. 2/2004, Bibliotheca Publ.-house, Târgoviște, ISSN 1584-4056; S. Ionescu, The Significance of the Jurisprudence and the Authority of the Justice and the Great Doctrines regarding the Rule of Law, in Studii de Drept Românesc, Year 21 (54), Nr. 1, 2009;