DISTINGUISHING IN STATUTORY LAW: THE STATUTE AS WRITTEN CUSTOM UNDER MAURICE HAURIOU’S LEGAL INSTITUTIONALISM

Abstract

The common definition of the statutory law, especially in continental law culture, understands a set of regulations supposed to be applicable in all possible cases in the future. Nevertheless, already at the beginning of the twentieth century, this concept was criticized as too idealistic by absolutizing the statute as a unique and exhaustive source of law. Maurice Hauriou (1856-1929), a French academic of public and constitutional law at the University of Toulouse, presented at that time the concept of the statutory law as written custom, therefore a source of law that is supposed to be actualized in particular cases with judge’s possibility to distinguish. The modern concept of the statutory law, inherited from the Enlightenment, is proven to be even more mythical. The paper focuses on the Hauriou’s concept of the statute as a written custom which can be used as a useful tool to describe the reality of contemporary legal practice.