„Súkromné právo“ a „bezštátne právo“: Historické paralely k postmodernej situácii

The author of the article is in search of alternative roots of the dichotomy between private and public law in the continental legal system. He proposes that in addition to the well-known thesis of Roman legal model of public-private dualism (being in line with the liberal mentality of the 19th century) one can also offer another, previously disregarded thesis on a second source of the dichotomy – claiming that modern private law is partially continuous with the pre-modern autonomous rule-making by feudal corporations, in contrast to the public state-owned monopoly of lawmaking, prevailing in the 19th and 20th centuries. The modern concept of private law with its basic private-law principles (especially the idea of autonomy of will) could thus be perceived under this explanatory hypothesis as an unacknowledged continuation or absorption of non-state (stateless) autonomous rule-making into the modern legal system created by state. This absorption can be witnessed in the works of German legal scholars of the 19th century, turning the normative autonomy of pre-modern communities into a truncated form of autonomy of will in the modern private law context, with modern autonomy of will being considered only a source of subjective rights (legal action) rather than a source of objective law. In: the current situation of the 21st century, however, the idea of stateless (non-state) law revives again – for example, in the form of private normative systems such as so-called sports law, meaning in fact a renovation of the discourse of stateless law, based on an idea of legislative autonomy and legal pluralism. The result is – on one hand – blurring of differences between private and public law in the national legal systems of continental Europe, and – on the other – fragmentation of private law into the state-made and stateless (non-state) components of private law.