INTRODUCTION

The process of judges’ reasoning has been investigated by many legal scholars, who have noted that it may depend not only on politics, history, morals, history, religion and scientific advances, but also on judges’ ethical and aesthetical views or even their emotions (Feigenson 2010: 45–96; Sajo 2010: 354–84). If law is a ‘system of legal rules’, then judicial choice based on these factors should be considered as deviation from law, its violation, and should be rooted out from the judicial practice. At the same time, we can barely find any legal system which managed to avoid the influence of these factors on the application of law. In this chapter it is argued that the topical approach allows them to be encompassed as constituent parts of law. It is also argued that from the rhetorical perspective contemporary law can be understood as a system of arguments, drawn from different sources, rather than a closed system of legal rules, organised into a strict hierarchy.

‘SOURCES OF LAW’ AS THE FIRST PILLAR OF POSITIVISM

The concept of the ‘source of law’ as a source from which rules derive their legal force and validity is crucial for the continental legal system and is one of its theoretical pillars. Though Hans Kelsen in as far back as 1934 drew attention to the metaphorical nature and therefore ambiguity of this expression, because it may signify many different things – ‘two divergent methods for creating general norms’, namely enactment and custom, ‘the ultimate basis of the validity of the legal system’ and, in addition, ‘every legal norm, not only the general but also the individual legal norm’ (Kelsen 1992: 67) – the concept of the ‘source of law’ in countries belonging to the Roman-Germanic legal family has for many years remained the starting point in explaining how the legal system is organised and the cornerstone of the legal dogma on which the description of different legal systems rests (David and Brierley 1978: 13–14, 94–8).