The Law Also Rises: Becoming

Volodymyr Machuskyy Sr.

The scientific knowledge of law aims at two interconnected things: a) obtaining a true knowledge of law and b) an identification of law’ patterns in all its manifestations.

Traditional doctrinal legal understanding is limited by the categorical apparatus and problems of epistemological nature.

On the one hand, there is a long-standing hopeless controversy about the choice between the rule of law or judicial discretion.

On the other hand, there is an endless searching of criteria for the optimal structuring of law by branches of law.

With that there are false attempts to identify the dominant branches of law or attempts to create complex branches of law as a way out of the theoretical impasse.

Moreover, the law as itself, as a general one, is trying to reach the infinity. Hence, arising the potential for the existence of an infinite number of the law’ concepts.

As a result, the attempts to create a traditional comprehensive concept of the law from the standpoint of a modern understanding of law, which essentially boils down to confrontation along the lines of Herbert Xart – Ronald Dworkin, are doomed to failure.

Legal understanding is determined by at least two things – the permanent self-identification of society and the law itself as a general.

Through the understanding of law, society constantly identifies itself at each stage of its development and the permanence of such identification makes it difficult to create a comprehensive unified concept of law.

The age-old antagonism between legal positivism and natural law will exist until it seems correct to assume that the rules of law and court decisions are two parts of one whole.

After all, law as a general is a being of law and has no direct impact on relations in society and human behavior, just as the concept of legal entity has only an indirect relationship to the activities of a particular commercial company.

Law understanding necessarily contains the concept of law as a generality, law as a special and law as separate.

The idea of law as a generality – justice and freedom, through legal regulation, as a feature, is embodied in the rule of law as a separate.

Hence, the idea of law and law, as itself, as a general, can not be realized by a simple mechanical transfer from the realm of abstraction to everyday life.

Law as an abstract concept must necessarily go beyond abstraction and become law as special and reality – legal certainty, which in fact is no longer a law, but contains a law in itself.

In order to achieve legal certainty, the law in a some way abandons itself and finds its expression in the legal regulation – the current legislation or court decisions.

Significant differences between the normative legal act (general prescriptions) and judicial precedent (individual prescriptions) do not affect either their essence as positivity, nor their ultimate goal – the regulation of social relations in order to establish law and order.

After all, the law and the justice are aimed at the same subject.

Fixing the transformation of law from an abstract idea into a real legal regulation is the starting point for understanding the movement of law.


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