“As any Bulgarian text book of civil law quickly reveals, the philosophy taught to Bulgarian law students continues to be influenced by legal positivism. Since socialist legality, which became the official legal doctrine of communists during the Stalin era, may be considered an offspring of legal positivism, its lingering influence thus testifies to an incomplete break with the past… Curiously, while official doctrine continues to deny the relevance of precedent in the name of the separation of powers, the executive branch of government is still viewed as a significant lawgiver, as a ‘source’ of law, and not just public but also civil law. The only area of law which is no longer under the tutelage of the executive branch is criminal law… Some may be inclined to attribute the positivist inclinations of East European legal scholarship to the fact that in the nineteenth century Eastern Europe joined the civil law family and adopted its style of legal reasoning. However, this view is erroneous with regard to Bulgaria’s civil law tradition. As Apostolov (1946, 1999, p. 135), a leading legal scholar in pre-communist Bulgaria, pointed out, judges were not prone to the errors of positivism. Legislation left such ‘huge gaps’ (ogromnite praznini) that the necessity to fill them by reference to ‘customs and equity’ (spravedlivost) was obvious to jurists. Unfortunately, what was obvious then was no longer obvious 50 years later.” Bruno Schönfelder (2005) Judicial Independence in Bulgaria: A Tale of Splendour and Misery
Posted on: Sun, 14 Sep 2014 09:28:11 +0000
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