Being a part of culture, law derives from it and at the same time has influence on it. In other words, law is both a product and a source of social axiology. Such liaisons are identified as 'social functions' of law.
The paper starts with some terminological remarks on 'legal system', 'legal order' as well as on functions of law themselves. After dealing with characteristics of various functions of law the article turns into an attempt of describing the connection between '(public) morality and law' as such.
A clause of public morality (morals) in the legal texts 'invites' the social axiology into the legal order, which means both - its protection, as a part of a legal system and risk of misinterpretation or even manipulation as an 'open texture' term (a blurred phrase) with no legal definition attached. The aforementioned risk is even more significant since such clause serves the limitation of individual freedom - named, depending on legal system as 'human rights and freedoms', 'fundamental rights' or 'constitutional freedoms'.
The conclusion that derives from the paper is that the lack of the legal definition for '(public) morality' leads to making use of the established case-law that shows the alternative tendencies: one to unification - or at least 'europeanisation' - of the legal standards and another one to being interpreted in context of domestic social axiology that vary from state to state. Especially the European Court of Human Rights - ECHR (but also the Court of Justice of the European Union - CJEU) avoids increasing its jurisdiction and focuses on proportionality principle issue and giving to the national bodies 'margin of appreciation' in this area.
Thus, the substance of '(public) morality' results from the social dialogue between various subjects within democratic state of law and its legal protection fulfills simultaneously guarantee, stabilizing, innovative, protective, motivational and educational function.
Being a part of culture, law derives from it and at the same time has influence on it. In other words, law is both a product and a source of social axiology. Such liaisons are identified as 'social functions' of law.
The paper starts with some terminological remarks on 'legal system', 'legal order' as well as on functions of law themselves. After dealing with characteristics of various functions of law the article turns into an attempt of describing the connection between '(public) morality and law' as such.
A clause of public morality (morals) in the legal texts 'invites' the social axiology into the legal order, which means both - its protection, as a part of a legal system and risk of misinterpretation or even manipulation as an 'open texture' term (a blurred phrase) with no legal definition attached. The aforementioned risk is even more significant since such clause serves the limitation of individual freedom - named, depending on legal system as 'human rights and freedoms', 'fundamental rights' or 'constitutional freedoms'.
The conclusion that derives from the paper is that the lack of the legal definition for '(public) morality' leads to making use of the established case-law that shows the alternative tendencies: one to unification - or at least 'europeanisation' - of the legal standards and another one to being interpreted in context of domestic social axiology that vary from state to state. Especially the European Court of Human Rights - ECHR (but also the Court of Justice of the European Union - CJEU) avoids increasing its jurisdiction and focuses on proportionality principle issue and giving to the national bodies 'margin of appreciation' in this area.
Thus, the substance of '(public) morality' results from the social dialogue between various subjects within democratic state of law and its legal protection fulfills simultaneously guarantee, stabilizing, innovative, protective, motivational and educational function.
