Volodymyr Machuskyy
From the moment of independence
Ukrainian state and society exist in new social, economic and legal conditions.
In the sphere of social relations,
the content and directions of the state's activity have changed.
The change in economic conditions,
in particular, has been manifested in the proclamation by the Ukrainian state
of the inviolability of private property and freedom of business.
Changing legal conditions: the
Soviet state and all its organs acted on the basis of socialist legality, and
in Ukraine the principle of the rule of law is recognized and in force.
New conditions for the existence of
the state and society have led to the need for a critical rethinking of the
basic provisions of the theory of law, in particular the development of new or
updated prior legal concepts and categories.
However, the transformation of
approaches to legal thinking sometimes leads to a deepening of conceptual
differences in the understanding of law, the proclamation of the thesis on the
crisis of legal thought, the denial of the effectiveness of legal norms.
Depending on the approaches to legal
thinking, the accents of determining the
Law can be shifted from the recognition of the Law as a set of legal phenomena
[1, c. 31], the organization of public order [2, c. 159] to the define of Law as the mind in action [3, c. 80].
Thus, the approaches of scientists
to the understanding of law are characterized by conceptual differences and the
lack of a common position in terms of an understanding the concept of law.
In addition, the problems of the law
understanding are the subject of study of various schools of law and each
school of law has its own concept of an understanding of law.
Moreover, the understanding of law
defines the paradigm of a legal phenomena’s knowledge [4, c. 3], and hence is
arises the objective need to create a modern conception of an understanding of
law that is relevant to a new legal reality.
In the context of studying the
problems of an understanding of law, it seems advisable to note the following.
The
scientific knowledge of law is aimed at two mutually related things: obtaining
true knowledge of the law and determining the law action regularities in all
its manifestations.
The
traditional doctrinal an understanding of the law is initially limited by the categorical
apparatus and the problems of an epistemological nature.
On
the one hand, there is a long-lasting hopeless polemics about the choice
between the rules of law or the judge's discretion.
On
the other hand, there is an endless search for the criteria of the optimal
distribution of law via the branches of law, the identification of dominant
branches of law, the creation of complex branches of law, as a means to exit
from the theoretical impasse.
In
addition, the Law itself, as a general, tries to reach infinity, and hence
there is a potential possibility of the existence of an infinite number of
concepts of law. The attempts to create a traditional comprehensive
concept of law from the point of view of the modern understanding of law, which
essentially reduces to confrontation along the lines of Herbert Xart - Ronald
Dworkin [5, p. 2] are foreshadowed by the failure.
The
understanding of the law is determined by at least two things - the permanent
self-identification of society and the Law in itself, as a general one. Through
the understanding of the Law society constantly identifies itself at each
particular stage of its development and the permanence of such identification
makes it difficult to create a comprehensive, unified concept of law.
The
each stage of development of society has inherent its own understanding of law
and in this sense, "Chinese metaphysics" Roscoe Pound [6, p. 10],
"real reasonableness" of George Hegel [7, p. 18] or
"triangles" of Benedict Spinoza [8, p. 4] are incompatible with each
to other not so much because of differences in thinking, but especially because
of the differences in the various stages of society development and in the
time.
An
age-old antagonism between legal positivism and natural law will exist until
the very moment when it comes to the proper assumption that the rules of law
and court decisions are two parts of one whole.
After
all, law as a general is the existence of law and has no direct influence on
relations in society and the behavior of people, as well as the concept of a
legal entity has only an indirect relation to the activities of a particular
commercial company.
An
understanding of the Law includes the concept of the law as a General, the
concept of the law as a particular and the concept of the law as a Single.
The
idea of the law as a general - justice and freedom, through a legal regulation,
as a particular, is embodied in the order of law as a single.
Hence,
the idea of law and law, in itself, as a general one, can not be realized by
mere mechanical transfer from the sphere of abstraction in everyday life.
The
law as an abstract concept must go beyond out of the boundaries of an abstraction and turn into
a law as a special and reality - legal certainty, which in essence is no longer
a Law, but contains the Law into itself.
In
order to achieve legal certainty, the Law in some way refuses from itself and
finds expression in the legal regulation - the current law or the court
decisions.
Significant
differences between a normative legal act (general prescriptions) and a
judicial precedent (individual prescriptions) do not affect on their essence as
positivity, nor their ultimate goal - the regulation of social relations in
order to establish law and order. After all, legislation and justice are aimed
at one and the same subject [9, p. 464).
The
fixation of the transformation of law from the abstract idea into real legal
regulation is the starting point for realizing the possibility of the movement
of the law.
References:
1. Алексеев С.С. Право на пороге нового тысячелетия: некоторые тенденции мирового развития – надежда и драма современной эпохи / С.С. Алексеев. – М.: Статут, 2000. – 252 с.
2. Ллойд Д. Идея права / Деннис Дойд. – М.: Книгодел, 2006. – 416 с.
3. Хайєк Ф. А Право, законодавство та свобода: нове викладення широких принципів справедливості та політичної економії: в 3 т. – Т. 1.: Правила та порядок / Ф.А. Хайєк. – К.: Сфера, 1999. – 196 с.
4. Алаіс С.І. Проблема праворозуміння в основних школах права: автореф. дис… канд. юрид. наук: 12.00.01 / С.І. Алаіс. – К., 2003. – 20 с.
5. Shapiro J. Scott The Hart-Dworkin Debate: A Short Guide for the Perplexed / Scott J. Shapiro. – Yale University - Law School, 2007. – 54 p. – [Електронний ресурс]. – Режим доступу: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=968657
6. Pound Roscoe An Introduction to the Philosophy of Law / Roscoe Pound. – New Haven: Yale University Press, 1922. – 318 p. – [Електронний ресурс]. – Режим доступу: http://lf-oll.s3.amazonaws.com/titles/2222/Pound_1502_Bk.pdf
7. Hegel G.W.F. Philosophy of Right / G.W.F. Hegel. – Kitchener: Batoche Books, 2001. – 281 p. – [Електронний ресурс]. – Режим доступу: https://socserv2.socsci.mcmaster.ca/econ/ugcm/3ll3/hegel/right.pdf
8. Spinoza Benedict Ethics / Benedict Spinoza. – Jonathan Bennett, 2004. – 139 p. – [Електронний ресурс]. – Режим доступу: http://www.earlymoderntexts.com/assets/pdfs/spinoza1665.pdf
9. Платон. Горгий / Платон. – [Електронний ресурс]. Режим доступу: http://psylib.kiev.u
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