Scholarly record

SOCIETY AND LAW BETWEEN CONTINUITY AND DISCONTINUITY

N. Stachova

Abstract

History of human society is driven by mutuality of continuity and discontinuity. The manner in which society keeps its permanent inner order and passes it on further generations is realized substantially via law, legal norms and concepts. On the other hand, law is confronted by the changing conditions for its application in practice, and it has to adjust to the situations it regulates. Therefore, in law, just like in society, there is being drawn a line between the obsolete and new, a line between the world of the perishing and arising world of law. The exceptional connection between social phenomena and processes, on the one side, and legal reality, on the other, justifies the reason why one should very carefully observe the continuity in discontinuity or discontinuity in continuity in the history of law. But where the starting point of our research should be looked for if discontinuity and continuity are still present in law? Thus the first extant documents reflecting the efforts to distinguish between the obsolete legal customs from new law will be crucial, and at the same time, an inherent condition for the presented research is a detailed geographical specification of the area to which the research applies. In our case, we will focus on the legal source of Bohemian provenance traditionally called the Book of Rosenberg (Book of RoЕѕmberk), which was written after 1337, most likely between the years 1343 and 1346. The core of the so-called Book of Rosenberg consists of procedural law provisions. Thus it can be understood as a legal book of provincial law (Bohemian Landrecht) made for the purpose of Land tables officers. Exceptionality of the Book of Rosenberg lies not only in the fact that it is the oldest written, prosaic text, and thus the very first written record of the provincial law in Bohemia, but also that it explicitly expresses distinction between the old and new law. The objective of our article is the effort to characterize the then society of the era in which the so-called Book of Rosenberg was created based on the abovementioned categories of continuity and discontinuity. We will base our research on both the explicit references in the Book of Rosenberg about the old and new law and on the particular legal concepts documenting the transition from the old, pagan world practicing ordeals to the new judicial proceedings influenced by the Christian faith. Final conclusion should generally indicate the coexistence and mutual penetration of the elements of continuity and discontinuity, the societyВґs approach to the obsolete and the ways of overcoming it and creating the new by establishing new structures and models of behavior.

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