RS 25

the reliance upon doctrinal analysis.The growing complexity of law and method makes it increasingly difficult to forego the expert advice contained within this particular source of law.The gap between theory and practice appear to have widened further since 1996. When calling for a more realistic doctrine, the author of the study puts particular emphasis on the non-hierarchical way in which jurists work with sources of law.A non-hierarchical doctrine, however, presupposes that Nordling was right when he surmised that legal sources are particular expressions of law, taken as a whole, and thus unlikely to clash. If the boundaries between the different functions of law are respected, then conflicts will be few and insignificant.Nordling was acutely aware of this caveat. He added that ”/t/hese factors [ the sources of law] co-exist harmoniously as long as law develops normally.”42 When the precarious balance between legal sources is disturbed, legal sources will inevitably be rivals in their quest for primacy. Judicial activism, blurring the lines between policy-making and law, may one day disprove this basic assumption and render the non-hierarchical doctrine obsolete. There is no escaping the fact that this analysis leads to a rather uncomfortable conclusion:The most up-to-date and practical doctrine of legal sources available today was devised by Ernst Viktor Nordling in Uppsala more than a century ago.This might be construed as a rather sad comment on contemporary jurisprudence, but perhaps the old cliché – sometimes we have to go back to move forward – just might be true this time. re cht swi s s e n scha f t al s j ur i st i sch e dok t r i n 310 42 Ibidem.

RkJQdWJsaXNoZXIy MjYyNDk=