2. CATEGORIES OF LAW
(1) Stage of Volksrecht
When the word “law” is understood as stated above, it is certain that in every community, however primitive, law is always found to exist. The kind of law was simple and its rules were known to all members as derived from their communal life.
The growth of the rules were spontaneous and their development was slow and gradual. This type of law is known in German as Volksrecht which is translated into English as “people's law.”(2) Stage of Juristenrecht
When the community expanded and grew more complex, conflict situations that demanded solution took place more frequently, and the institution and procedure for conflict resolution gradually appeared in the form of law. As a result, Volksrecht was refined and articulated in details; their application to various situations accumulated precedents; and the conception of the hierarchy of legal rules was gradually established. Over a long period of time, the originally simple contents of Volksrecht became enriched and complicated, so as not to be understood by laymen. This stage of law is known as Juristenrecht in German or “lawyer's law” in English. Juristenrecht as a legal system was understood only by the persons who were specially trained in it. A new profession known as jurists or legal nobles began to emerge. Their knowledge and skill were what we call legal science or jurisprudence. The reasoning employed in the jurisprudence may be called, to use Edward Coke's words, “the artificial perfection of reason” which the layman's common-sense alone cannot understand nor command. Being specifically rational and systematic, it was capable of being studied and taught only in law schools as well as being transplanted into countries having different cultural backgrounds. Roman law and English law were the remarkable examples of the law that developed to the stage of Juristenrecht.
In the legal systems that appeared through the two stages of Volksrecht and Juristenrecht, customary law was still living. Customary law was not formulated by human deliberation. Being inherited from the ancestors, it was sacred and permanent with practical application to most of the needs of the community. However, they had to face the need to devise new rules for specific purposes. The new rules were understood, even when successfully devised, as a temporary measure to meet the special needs of the day. Even if they were kept valid for a long time, the community still considered them as not true law or Dharma, but merely a kind of law of inferior status to the legal rules of Volksrecht and Juristenrecht. They were called lege or jus scriptum in Roman law and “provisions” or “statutes” in English.
(3) Stage of Satzungsrecht
Since the community developed further to another level, in Europe from middle-ages to modern era, systematic law-making became prevalent and the number of made-laws has increased. The reluctance in law-making in the preceding ages faded away with the emergence of the concept of sovereignty propounded by Jean Bodin in the sixteenth century. The distinctive feature of the modern sovereign state lies in its power to make law without any limitation. The concepts of sovereignty and legislation were enthusiastically acclaimed as a great achievement of the modern era. The modern concept of law therefore differs radically from those of the preceding ages. The law is to be made by the sovereignty of the state, comparable to the miraculous power of God. Once a law is enacted, the problems of the purpose, function and limit of law should disappear from the concern of jurisprudence. The concern should be concentrated upon “legislated law (Satzungsrecht or Gesetzesrecht)”. The European modern legal system is completely dominated by this type of enacted law, and the idea of different types of legal rules coexisting side by side in a legal system prevalent in preceding ages was no longer acceptable.
The new theory of law known as legal positivism has dominated European legal thinking since late nineteenth century. As a matter of fact, however, the jurisprudence based on legal positivism is not capable of developing the theory of the purpose, function and limit of the law, nor is it conducive to research into the relationship of law with morals and culture. Thus it can not develop true juristic method, that is, application and interpretation of law in such a way that the legal system is able to accept some influence of social morality and cultural tradition to refine the law compliantly with the identity of the community.
(4) Summary view
Among the three stages of legal development, the first one of Volksrecht was the period when legal rules began to come into being and developed gradually, as if without any human purposive effort. It would not be too far-fetched to follow F. Hayek's terminology to describe the legal rules in this category as forming “spontaneous order” (1976, 1: Ch.2), although they may also be called “grown” elements in law. The legal rules in the second stage of Juristenrecht developed further into those that were articulated and systematized by the purposive effort of the jurists who played the role of the midwife for the birth of those rules. This human effort was, however, not of the mother herself. It was only an outcome of human intellectual ability to discover and rationalize legal rules created by someone else. The third stage of Satzungsrecht was different from the preceding two stages. The legal rules in this stage were devised by the deliberation of human will and design, and could be classified into exogenous order and called “made law” or “made elements in law.”
This differentiation of three types of legal rules might be thought an oversimplification of the complicated historical facts. But, the purpose of such differentiation is first to trace the basic stages of development of law, and then to employ the results as a conceptual framework to analyse the problems under consideration. The concepts of Volksrecht, Juristenrecht, and Satzungsrecht obtained from Western history may be employed in the analysis of the contemporary legal systems in non-Western cultures.