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6Теоретико-исторические правовые науки
Theoretical and Historical Legal Sciences
Научная статья УДК 34
DOI: 10.37399/2686-9241.2022.4.72-92
Actually Acting Law: Materialistic Approach
Vladimir M. Syrykh1, Bakhyt Altynbassov2
1 Russian State University of Justice, Moscow, Russian Federation
2 University of Bristol, UK
For correspondence: 1 2707xyz@mail.ru, 2grl9948@bristol.ac.uk
Introduction. The article contains the final results of theoretical studies of the foundations of the materialistic theory of law, that were conducted by the authors between 20202022. The basis of the article is the problems of ensuring the real operation of the generally recognised principles of international law in the domestic law of modern states. Theoretical Basis. Methods. The doctrinal basis of the study is the mastering provisions of philosophy, the general theory of law, the sociology of law and the science of constitutional law. In the process of research, the universal dialectical method of cognition, general logical methods, as well as methods of hermeneutics, comparative legal, system analysis and interpretation of the law were used.
Results. The article substantiates the legitimacy of understanding the universal principles of law (equality, free will, etc.), as well as the generally recognised principles of international law, enshrined in the Universal Declaration of Human Rights, as an objective law that mediates the laws of development of modern law. Further, the dialectic of the transition of the named universal and general principles of law from possibility to reality, to the totality of actual relations, is revealed. It is shown that this process consists of three interrelated mechanisms: positive law, individual law and concrete law, the interaction of which proceeds in the form of dialectical negation of negation. The conclusion is substantiated that the regulation of social relations is the cumulative result of all these mechanisms. The presentation of the positivist doctrine of law as the only regulator of social relations is problematic.
Discussion and Conclusion. The article brings to the discussion of readers a new vision of the problems of legal regulation of social relations, as a single process designed to implement the real embodiment of the universally recognised principles of international law in specific respects. It also substantiates the conclusions about the legitimacy of recognizing an individual as an independent subject of lawmaking and actual relations as the ultimate goal of legal regulation. It is recognised that the organic combination of a dogmatic analysis of legislation with the study of the processes of its implementation in specific respects should become the leading direction of modern legal studies.
Keywords: materialist theory of law, objective law, principles of law, international law, national law, positive law, individual law, concrete law, valid law, legal relationships, legal consciousness, actual relationships, distorted form of law
Abstract
© Сырых В. М., Алтынбасов Б. О., 2022
For citation: Syrykh, V. M., Altynbassov, B., 2022. Actually acting law: materialistic approach. Pravosudie/Justice, 4(4), pp. 72-92. (In Russ.) DOI: 10.37399/26869241.2022.4.72-92.
Реально действующее право: материалистический подход
Владимир Михайлович Сырых1 , Бахыт Омирханович Алтынбасов2
' Российский государственный университет правосудия, Москва, Российская Федерация
2 Бристольский университет, Великобритания ' 2Z0Zxyz@mail.ru, 2 altynbasov@yandexi.ru
Аннотация
Введение. Статья содержит итоговые результаты теоретических исследований основ материалистической теории права, проведенных авторами в 20202022 гг. Основу статьи составляют проблемы обеспечения реального действия общепризнанных принципов международного права во внутринациональном праве современных государств.
Теоретические основы. Методы. Доктринальной основой исследования являются освополагающие положения философии, общей теории права, социологии права и науки конституционного права. В процессе исследования были использованы всеобщий диалектический метод познания, общие логические методы, а также методы герменевтики, сравнительно-правовой, системного анализа и толкования норм права.
Результаты исследования. В статье обосновывается правомерность понимания всеобщих принципов права (равенства, свободы воли и др.), а также общепризнанных принципов международного права, закрепленных Всеобщей декларацией прав человека, в качестве объективного права, опосредствующего закономерности развития современного права. Далее раскрывается диалектика перехода названных всеобщих и общих принципов права из возможности в действительность, в совокупность фактических отношений. Показывается, что этот процесс состоит из трех взаимосвязанных механизмов: позитивного права, индивидуального права и конкретного права, взаимодействие которых протекает в форме диалектического отрицания отрицания. Обосновывается вывод о том, что регулирование общественных отношений является совокупным результатом всех названных механизмов. Тезис позитивистской доктрины о праве как единственном регуляторе общественных отношений является проблематичным. Обсуждение и заключение. Статья выносит на обсуждение читателей новое видение проблем правового регулирования общественных отношений как единого процесса, призванного осуществить реальное воплощение общепризнанных принципов международного права в конкретных отношениях. Обосновываются также выводы о правомерности признания индивида в качестве самостоятельного субъекта правотворчества и фактических отношениях как конечной цели правового регулирования. Признается, что органичное сочетание догматического анализа законодательства с изучением процессов его воплощения в конкретных отношениях должно стать ведущим направлением современных исследований права.
Ключевые слова: материалистическая теория права, объективное право, позитивное право, индивидуальное право, конкретное право, действительное право
Для цитирования: Сырых В. М., Алтынбасов Б. О. Реально действующее право: материалистический подход // Правосудие/Justice. 2022. Т. 4, № 4. С. 72-92. DOI: 10.37399/2686-9241.2022.4.72-92.
Introduction
F rom the perspective of legal positivism, the law has been recognised as the will of the state, in the form of the ruling elites of society, and elevated to the law. Individuals and other legal subjects should have been strictly guided by them in their activities [Baranov, P. P., 2015; Jong, H. M. de, Werner, W. G., 1998; Eleftheriadis, P., 2010]. Positivist theory has totally dominated the legal science and political and legal practice of democratic nations for the last two hundred years. Even the Soviet state, acting according to the canons of Marxism, betrayed it, recognising legal positivism as the only proper and real direction for a socialist society. According to Forji [Amin, G. F., 2021], Soviet legislation was perceived in the West as an extreme form of positivism, and Soviet international law was limited with norms that were not supported by Western nations.
Officially, such recognition took place at the first Union-wide Conference on the Science of Soviet Law and the State on July 16, 1938. The Chief Prosecutor of the USSR, Vyshinsky, in his report declared that law should be understood as a set of rules of conduct expressing the will of the ruling class, established by law. At the same time, he asserted (in a Pharisee manner) that "our definition has nothing in common with normative definitions" [Vyshinsky, A. Ya., 1949]. Soviet-Russian jurists liked this definition of law so much that, contrary to their philosophical and ideological doctrine - Marxis - they firmly believed in it despite the loss by the positivist doctrine in the last 50-70 years of claims to universal validity and indisputability.
Under the influence of the processes of a gradual, but natural process of democratisation of modern legislation, the positivist doctrine recognised, (and after it the legislator was forced to adapt) a range of institutions that directly contradicted its original principles. These were the introduction of a constitutional court with the authority to invalidate the laws based on their inconsistency with the provisions of the current constitution, the action of the European Court of Human Rights, (which invalidates the normative acts of the countries that do not comply with the European Convention on Human Rights). Some European countries have officially established themselves as constitutional nations, the guiding principle of which is the priority of valid law over the country's legislation. At the same time, forms of public participation in the legislative activities of the state are expanding, even granting voters the right to pass laws in a referendum.
In this regard, we assume that the materialist theory of law has the greatest potential for appropriate justification and identification of effective measures for further democratisation of national law and practices of its implementation.
However, this doctrine is not widely accepted by lawyers and the public. Therefore, to attract the attention of a wide readership to this theory of law, the article sets out its theoretical framework, which significantly distinguishes it from the modern leading traditions of legal thoughts.
Before discussing the mechanism of transition of objective law from possibility to reality, we will briefly review the literature on objective law studies.
Literature Review
The concept of "objective law" is used in the work of early and middle 20th century scholars and philosophers such as Leon Duguit, Evgeny Pashukanis, and Ayn Rand. Leon Duguit in his paper "Objective Law" notes that in modern society the metaphysical concept of subjective law is giving way to the concept of objective law, which imposes a social obligation on each member of society. Duguit argues that a new state system is coming, based "on the fact of mutual dependence", connecting all of humanity in general with members of any social group.
Man is a typical being that cannot be separated by the thought of his surroundings, of the group to which he belongs, which is the nation today. Here we see the great fact of social solidarity or interdependence, reflecting his philosophical stance [Duguit, L., 1920]. In his next work, Duguit states that "men have the feeling that the observation of certain rules is necessary to assure their social life and their individual life which depends on it; they have the feeling that it is just for these rules to receive sanction and these rules are what we call juridical norm" [Duguit, L., 1921, p. 135]. Consequently, Duguit does not give a clear definition of objective law, and from his philosophical point of view, one can presume that this refers to social norms, which impose obligations on the members of society in the form of mutual social dependency, that is, solidarity among themselves.
The famous American writer and philosopher Ayn Rand understands the objective law as the law that defines criminal acts, forbids them, and determines the type of punishment for the offender. The primary purpose of such law is to set out general principles of conduct that support the rule of law, human rights and prevent citizens from acting against to each other's rights [Rand, A., 1965]. Otherwise, in her view, nonobjective law is applied, allowing the official to impose his arbitrary will, that is, his policy, his decisions, his interpretations, his coercion, his punishment, or mercy on helpless and defenseless victims [Smith, T., 2016]. In such a state, the rule of law becomes a grand motto which conceals the reality of oppression and lack of freedom [Barnett, H., 2021]. Although Ayn Rand was not a lawyer, based on her philosophical views, it follows that positive law should come from the objective law that meets the needs of that society.
Ayn Rand further argues that the proper moral aim of human life is the pursuit of one's own happiness and reasonable self-interest, and that the only social system compatible with this morality is a laissez-faire principle that demonstrates the full respect of the individual rights [Feng, L., 2019.]. Such an author's position seems to have emerged under the idea of neo-liberalism, developed by economists at the University of Chicago in the USA in the 60s of the
last century. One of the fathers of this idea, Milton Friedman, Nobel Laureate in Economics, argued that to solve social problems, it is more effective to promote market relationships, with minimal government intervention. Proponents of this idea believed that efficiency, responsibility, and innovation in the social sphere could be achieved through market competition [Burgin, A., 2012].
The idea of fair capitalism, in which the state plays a supervisory role in economic relationships, thereby ensuring the freedom of individuals in the realisation of their economic and social rights, was the ideal for Ayn Rand. Therefore, according to Ayn Rand, the objective law must be rational and establish the rule of law, which protects the rights and interests of individuals in a free market country.
The interesting thoughts can be also seen in the works of Evgeny Pashukanis, who believes that to establish the objective law, it is not enough to know its normative content, but we need to know whether this normative content is implemented in a real life, that is, in social relationships. He believes that if certain relationships really developed, it means that a corresponding law was created, but if only a law or a decree was issued, but the relevant relationships did not arise in practice, then there was an attempt to create the objective law, but this attempt failed [Pashukanis, E. B., 1929]. The greatest philosopher and lawyer Charles Montesquieu also argues in his book "The Spirit of Law" that "any good law is useless if it is not implemented in practice" [Montesquieu, Ch., 1989]. Pashukanis' assertion that the law should be realised in actual social relationships is of great importance for our work, to be discussed in the last chapter of this article.
Therefore, in the literature on the theory of law, objective law is considered from the perspective of the relationship between the individual and society, the individual and the state, in general terms, without defining a mechanism which ensures the translation of initial principles into real life in the form of legal relationships of individuals.
The theory of positive law, as we know, denies the existence of objective law. Nevertheless, under the influence of democratisation processes, the legislature is forced to adapt some institutions of the rule of law, in direct contradiction with its original principles.
Discussion and Findings Objective Law
The main characteristic of the materialist theory of law is, first and foremost, the recognition of objective law as a real operational component of the legal regulatory mechanism. In that respect, it identifies itself with the natural law theory. Therefore, objective law is formed by the principles of international law, as well as the principles enshrined in the current constitutions of modern states and the laws of the country.
The principal sources of contemporary objective law are the norms of international law, enshrined in such fundamental acts as: 1) the Universal Declaration of Human Rights, adopted by the General Assembly on December 10, 1948; 2) the International Covenant on Economic, Social and Cultural Rights, adopted by the General Assembly on 16 December 1966 and entered
into force on 3 January 1976; 3) the International Covenant on Civil and Political Rights, adopted by the General Assembly on December 16, 1966 and entered into force on March 23, 1976; 4) The Optional Protocol to the Covenant on Civil and Political Rights, adopted by the General Assembly on December 16, 1966; 5) the Declaration on Social Progress and Development adopted by the General Assembly on December 11, 1969; 6) the United Nations Millennium Declaration adopted by the General Assembly on September 8, 2000.
The historical role of the Universal Declaration of Human Rights lies in the fact that it is the first act of international law, which defined, firstly, the system of rights inherent in every person from the day of his birth and regardless of race, color, sex, language, religion, political or other beliefs, national or social origin, property, estate or other status, and, secondly, the principles for the implementation of these rights are enshrined in specific legal relations. The provisions of the Declaration were recommendations to UN Member States, setting out the basis for their legal policy.
In turn, the principles of international law are concretised by the sources of national law: the constitution and laws. These sources may contain a number of principles that are not provided for by the norms of international law but recognised as such by their legislative bodies. In addition, the principles of equality, free will, interdependence and equivalence should be recognised as universal principles of law, as laws of the legal form of the historically first economic exchange relationship [Marx, K., 2016]. That composition of the principles of objective law needs a detailed justification and concretization, otherwise, their reality, validity as components of objective law, is only presumed.
According to the materialist theory of law, objective law as a valid law is not linked to any existing form of being: legislation, legal consciousness or legal relationships, as assume representatives of legal positivism, psychological or sociological legal theories. Neither the state nor any other subject has a monopoly on the expression of objective law. Objective law is actually embodied in cognition and concrete actions, where the cognizing and acting subject correctly understand that law and realised it in his actions, entering into a certain legal relationship [Syrykh, V. M., 2011].
Objective law, like any consistent pattern, only becomes a real existing phenomenon once it is embedded in certain actual relationships. To achieve such results, the principles of law must pass through four stages: positive, individual, and concrete law, and actual relationships. Only the stage of a concrete law contains prescriptions about the rights and obligations of individual subjects as participants in certain legal relationships. Positive law, being the first, initial stage of translating the principles of law into reality, containing the will of the legislator, another law-making body regarding the general, abstract conditions for the implementation of the principles of law in public abstract relationships. However, objective law reaches its ultimate goal at the stage of actual relationships, after individual prescriptions are embodied in concrete actions and expressed in socially useful results for society and the state.
Positive Law
The role of legal regulation lies in the fact that out of the many options for the connection of participants in a legal relationship, the state chooses a variant of behavior that can guarantee the stability of relations in society, create a mutual connection of participants in which they could satisfy their own interest without violating the public legal order. Relying on the power of coercion, the state seeks the help of the law to create a uniform behaviour of subjects in situations of the same type, since it is not possible to create a stable order in society in any other way. The state is directly interested in a sustainable order as the goal of its activities. Individuals are also directly interested in the legal order, seeing in it a means of realising their interests and satisfying needs, regardless of whether the norm belongs to the public or private law.
Modern lawmakers, like their ancestors a thousand years ago, firmly believe that all will emanate from them in the form of a legal act is a valid law, nothing else in this capacity exists. Whereas, in fact, everything is much more complex and vice versa. The real nature of the law is not to raise the will of the state to the level of the law, but to provide society with prescriptions which define the content of objective law in relation to the conditions of society's existence through legal acts. "Positive law, according to the materialist theory of law, is able to act as a valid law, not in any act of manifestation of the law-making will, but only if it corresponds to the universal principles of objective law such as interconnection, equality, equivalence, freewill" [Syrykh, V. M., 2017, p. 9].
Positive law must determine, first and foremost, the measures which the subject acting must respect to avoid violating the requirements of objective law, its principles, to remain within the legal framework. A legal act may be considered a true law if its provisions comply with the principles of objective law: 90% compliance means 90% law, 0% compliance - 0% law. Consequently, the real regulator of social relations and the behaviuor of their participants is not a positive law, but objective law. It serves as the criterion of law in all stages of the mechanism of transition from objective law to reality.
Positive law, like the moon, carries in itself an understanding of law reflected from another more powerful source. What would we say to a person who recognises the Moon as the true luminary of Earth dwellers because it is closer to Earth than to the Sun? However, positivists have declared the legal acts as the sole regulator of social relations propagating the absurdity in the relationship between objective law and positive law. Thus, the advocates of positive law enjoy the universal respect, and their fantasies in this regard are still universally acknowledged.
The history of law formation and development has convincingly shown the failure of individuals and society to independently determine boundaries in which selfish interests and the demands for material and spiritual benefits of individuals could remain legal, do not infringe on the rights and freedoms of other legal subjects. However, the state, which voluntarily assumed the obligation to determine a single measure of law for its subjects, also failed to cope with this task misinterpreting legal measures and passing off the interests and the will of the dominant economic and political class of society.
The legislative authority does not attach much importance to the problem of the conformity of legal acts with objective law and their legal doctrine also denies its existence. Moreover, patented positivists seek to quickly stifle and criticise any attempt by researchers to reveal the real relation between objective law and legislation. The positivist is ready to recognise the subjective will of the legislator as a valid law, subject to strict execution even in the case when the current rule of law is outdated or from the very beginning did not correspond to objective law and, accordingly, to the content of the relevant legal relationships. According to G. V. Mal'tsev, "Frankly erroneous, unfair and politically inconsistent norms of law can cease to exist only by losing their validity as a result of the abolition of law" [Mal'tsev, G. V., 2007, p. 605].
In addition, representative and legislative bodies, consisting of professional politicians, introducing primarily the interests of the wealthy strata of society, most often pass laws in the interests of this strata and do not always take into account the interests of workers and the poor. As a result, a significant part of the current legislation of modern industrialized countries and other nations is a distorted form of law that does not correspond to objective law. The distorted form of positive law still retains its effect in Russian legislation in the form of norms that grossly violate the principle of equality of private law subjects, their freedom of will, the equivalence of legal relations, and the imposition of duties that a significant part of the population is unable to fulfill [Syrykh, V. M., 2017].
In this case, Al Attar rightly states that, from a positivist perspective, a law can only be considered valid if it meets two mandatory requirements. The first is whether the authority that issued this law is correct itself, and the second is whether this correct authority follows the proper procedures for adopting this law. According to the author, the law is only valid if both conditions are strictly complied with [Attar, M. al, 2017]. However, for a proper definition of the validity of the law, complying with these external conditions of one's being is not sufficient. So, legal provisions must be compatible with the principles of law established by the Universal Declaration of Human Rights and other acts of international law adopted in their implementation.
Legislative regulations that encroach on individuals' rights and freedoms encounter passive or active resistance from them, which is expressed in many offences and crimes. Society has little desire to conform to the prescriptions of laws that impinge on their rights and freedoms, enshrined in the norms and principles of international law. According to Yu. V. Golik [2006], the dominant trends in crime over the last two hundred years are: its intensive growth, exceeding the population growth in its rhythm; the expansion of areas of criminal activity; "self-serving' of the motivation of criminal behavior; increasing its organization, technical equipment and self-defense; the use of increasingly destructive means and methods of committing crimes; an increase in the damage caused by crime; transnationalisation of the criminal environment; unification and feminization of subjects of crimes; an increase in the public danger of criminal activity, etc.
Although the state has deprived civil society of the right to form a private law at its discretion, the members of society have managed to preserve the
ability of having their own opinion on the valid law, which does not coincide with the prescriptions of the officially existing laws. Members of modern civil society, like their distant ancestors, have not lost their interest in objective law, their property rights, and their ability to make reasonable judgments, and therefore very intensively and various forms form their ideas about law and its implementation in specific ways. Moreover, in modern conditions, the ability of individuals and various social groups to know objective law, to understand the ways and mechanisms of its action has increased significantly due to education, the achievements of legal science and the development of culture and other spheres of society.
Individual Law
Even in a country governed by the rule of law, it is difficult to believe that an individual obeys the rule of law blindly; rather, he forms a system of his own (individual) positive law independently, during all his practical activity, selectively.
In turn, it comprises the following three stages. First, an individual learns the current law in society. Next, he forms a system of legal norms that he is ready to implement in specific relationships. Finally, he forms his own will to perform legally significant actions. The results of this cognitive activity as a whole form
an individual law.
Other researchers also give a similar definition "individual law can be defined as a system of rules and values formed in the process of legal socialisation and determining the legal behaviour of an individual in a certain situation, allowing him to identify himself with a certain social group" [Krasnov, A. V., Skorobogatov, A. V., 2018, p. 84]. They argue that individual law is a behavioral regulator that is creatively developed by subjects in the legal communication process as part of the commission of acts of legal behaviour, both based on the norms of positive law and taking into account the norms of customary, social law. In other words, the formation of individual law occurs in the process of legal socialisation. In this process, two main phases can be distinguished: primary socialisation, during which legal education takes place, the transfer of social-legal experience to the individual, including legal knowledge and legal values characteristic of the society (local) community, of which he is a member by virtue of origin; and secondary socialisation, thanks to which a person, with the help of individual legal experience, acquires the legal knowledge, values and skills necessary for him to identify with a certain social (professional) group, of which he seeks to become the subjectively [Krasnov, A. V., Skorobogatov, A. V., 2018].
Depending on the degree of penetration of the essence of the law and the understanding of the mechanism of legal regulation, three types of individual law are distinguished: ordinary, professional, and scientific. Persons who have no special legal background are subject to ordinary individual law. A feature of the law at this level is the absence within it of the norms of positive law, to which the individual has a negative attitude, recognizes them as inconsistent with his ideal and is in no hurry to fulfil them voluntarily.
There is an opinion that individual law is closely bound up with the legal consciousness of individuals, which is understood as the union of such terms as legal knowledge, legal awareness, trust in the law, legal opinion, etc. [Horak, F., Lacko, D., Klocek, A., 2021]. Being alone, with oneself, the individual forms a personal attitude to positive law gives it an axiological evaluation and determines the ways of realizing his social, public and private rights in specific legal relationships.
Contrary to the expectations of the positivists, one part of the population may initially be bewildered and puzzled, thinking about legislative novels, while the other will smile sceptically, saying that nothing good can be expected from our state. A certain part will even take the path of offences and crimes. Terrorists and corrupt officials, although socially dangerous criminals are still citizens of their state, and to effectively combat them, this negative phenomenon should be carefully studied in legal doctrine and practice to understand and eliminate the factors that give rise to it.
The ordinary individual law deprives positive law of universality and confers its • purely- personal- character. Ideally, the law, from • an • individual's • point - of view, can differ considerably from the positive law and the law of other individuals. But it is precisely in this unique individuality that law acquires a special value in that it determines the essence and content of the legal position of the individual, the measure of freedom he desires in the sphere of private and public law, legal claims, and the measure of readiness to fulfil the assigned legal obligations. However, this measure usually turns out to be somewhat deformed in terms of expectations of increased maternal conditions, social assistance from the state and the reduction of the hardships associated with the execution of legal obligations imposed by the state.
The individual consciousness of persons with professional legal education and legal work experience appears differently. Its content consists of special knowledge obtained by individuals in the process of studying at the law faculties of universities or law academies. The individual law of this level largely coincides with official state criteria and requirements expressed in current legislation, however, it must have an inherent inner conviction, conscience, which, in the understanding of G. Hegel, "expresses the absolute right of subjective self-consciousness, namely to know in and out of itself, which is right and duty, and recognise as good only what it knows as such: at the same time, conscience expresses the affirmation that what it knows and wills as such is truly right and duty [Hegel, G., 1990, p.178].
The individual law (conscience) of the enforcer of the law shows its effect at all stages of the law application process. According to the law, its requirements are associated with enforcement only the most significant, meaningful from the point of view of the law, its protection against procedural violations. Meanwhile, the conduct of a significant part of legal and technical procedures is within the scope of the personal discretion of the law enforcement officer and is determined in accordance with the requirements of his individual law. Even law enforcement decisions taken with due regard for and in accordance with the law, in one part or another, are still determined by the discretion of the law enforcement officer. The formation of the individual law of persons engaged in
law enforcement activities is the most important objective of the state, which is addressed through the system of law schools, law faculties of universities, as well as the systematic passage of advanced training courses by practicing lawyers.
The highest level of individual legal consciousness is inherent in lawyers who conduct research activities focused on revealing the patterns of development and functioning of modern law, its history, as well as the features of its application in practice. In the process of conducting research work, lawyers criticize insufficiently perfect and ineffective norms of law and make their proposals for improving legislation and law enforcement practice. It is up to them that the most important social duty is to reveal the rational, the eternal, the progressive in the law and to "burn people's hearts with the verb", to bring the truth about law and legislation both to the state bodies and to the people, to the broad masses of working people, to explain to them the meaning and essence of their relation to the current law and ways of its implementation.
Thus, individual law is an independent and necessary form of objective law. Thanks to this form of law, objective law, like positive law, represents an important step towards the implementation of specific legal relationships. Individual law deprives positive law of impersonality. The law acquires a purely personal color, it acquires the status of the subjective right of an individual, which can differ significantly from both positive law and the rights of other individuals. But it is precisely within this unique individuality that the law acquires special value in the sense that it is no longer general, but from the position of an individual, determines the measure of legal freedom, his legal claims, and the measure of readiness to fulfil the assigned legal duties.
Consequently, it appears that the legal measure is undergoing a significant change, the evolution according to the social roles of the actors. For most of the population, this measure, as a rule, turns out to be somewhat deformed in terms of the amount of receiving common benefits and fulfilling legal obligations. The individual law of law enforcement is an effective way to establish the circumstances of the case, and their qualifications and to take a legitimate, justified, and fair decision. The individual law of the legal elite, represented by legal scholars, turns out to be an invaluable repository of reliable well-founded knowledge about the quality of the current legislation, the effectiveness of its operation and ways for further improvement.
Individual legal regulation has existed since the emergence of law to the present as a form of the historical first economic relationship of exchange and other similar relationships that arose later. Positive law as the leading component of the legal superstructure has been used only in the last millennium, because of the increasing complexity of social connections and the need to consolidate a uniform version of the society's activities to achieve the objectives set by the state. The positive law is not more able to give, and it is not required. Its regulatory function is an invention of the positivists, promoted by the state itself. If the law is an effective regulator of social relations, then why is the state creating an army of special organs designed to ensure the actual functioning of the law. The trouble is that the law without this supporting bodies, appears as nothing more than scraps of paper covered with ink.
The third form of objective law - concrete law - has as its source not only legislation but also individual law, without which the abstract prescriptions of the legislator cannot lose their universal form and acquire a level of law in accordance with the characteristics of a particular relationship. Relying on legislation alone, as positivist doctrine suggests, the task of forming a concrete law would be impossible. Without the effective participation of individual law, as already mentioned, it is not possible either to identify the legal claims of the parties to a particular legal relationship or to make an authoritative decision on the legitimacy of these claims from the standpoint of the current legislation.
Concrete Law
In positive law, which is a formalised system of abstract norms of law, there is no real life, it can only be inspired by the subjects of specific legal relationships. The general model of human activity is that it first thinks through and empathizes with its future actions looking for their optimal option. "A spider conducts operations that resemble those of a weaver, and a bee puts to shame many an architect in the construction of her cells. But what distinguishes the worst architect from the best of bees is this, that the architect raises his structure in imagination before he erects it in reality" [Marx, K., 2013]. A similar consistent pattern works in the field of legal regulation, including at the stage of forming a concrete law in the form of an agreement or a law enforcement decision.
In private law, a subject authorised to enter into a specific legal relationship is absolutely willing, in accordance with the current legislation, no one and nothing can force a subject of private law to enter into a legal relationship against his will and contrary to his interests. The more accurately positive law corresponds to the requirements of objective law and reflects the state of the relevant social relationships, the more often the desire of the subjects of these relationships to use positive law arises in order to satisfy their interests and needs.
Norms that embody legislative arbitrariness or preserve outdated variants of legal relationships are deliberately ignored by participants in concrete legal relationships. Outdated or arbitrarily established norms prevent the receipt of material or spiritual benefits in the amount guaranteed by developing social relationships, and thus their participants independently, bypassing the law, enter into legal relationships which enable them to fully satisfy their interests. Thus, society itself determines the degree of compulsory character and validity of private law.
Public law has a different order of functioning. The norms are embodied in concrete relationships, often at the will of their empowered party, although the level of obligatory nature of the norms of law here is much higher than in private law. State bodies and officials, as agents of the state, are forced to follow its normative instructions, regardless of their own desires and will. However, even this well-known principle of legality may not be fully respected and maybe torpedoed by officials in the decisions that they are entitled to make at their own discretion.
The strict application of legislative arbitrariness in repressive acts in specific relations entails negative consequences such as the flagrant violation of citizens' rights and freedoms. This is convincingly demonstrated by the arbitrariness of the state, perpetrated throughout human history, which for the Rus-
sian reader may be most clearly represented by the fascist crimes committed during the Great Patriotic War, as well as Stalin's repression in 30-40 years of the last century.
Concrete law as a set of common and individual law enforcement decisions as- a • whole • is- • an • independent • form- of -implementation • of objective • public • law, which completes the process of legal influence on social relationships. The distinction between positive and concrete law, which the positivist doctrine sees, is in fact untenable.
The needs and interests of individuals and other subjects of private and public law are a real motive for legal behavior. Entering into a concrete legal relationship, an individual does not always think about how not to stumble, not to go beyond the legal field, he is most often driven by his personal material or spiritual interest, the desire to minimise its cost, and extract the maximum possible benefit from another participant in the legal relationship. Therefore, the dialectics of the correlation of positive, individual, and concrete law in the mechanism of legal influence ensures the success or failure of positive law, that is, the realisation of the ultimate goals of legal regulation. Relying only on positive law, viewing it as a guarantee of a stable law and order is unrealistic. It's like a young man's wish to drive a car, having only a car engine without a wheel and other parts of the car.
The general and inherent aspects of positive and concrete law as the initial and final stages of legal influence are characterised by the following. First, they are both designed to achieve the same legal regulatory objectives, to create a stable legal order in society, to spread common benefits on a legal basis, etc. Second, they are an effective means of achieving the will of the state in life through a system of concrete legal relationships. Third, they have an objective law as their common basis. Fourth, the final result expressed as a contract, or an enforcement act is the overall effect of positive and concrete law.
The unity of positive and concrete law is therefore not in their identity in terms of specific characteristics, as the positivist doctrine demands, but in their essence as different stages of a single process of translating objective law from possibility into reality. The logic of the operation of law is determined by its goals, focused on determining and fixing the measure of the lawful activity of the subjects of concrete relationships, corresponding to the principles of objective law. These goals cannot be realised before subjective rights and legal obligations can be embodied in concrete legal relationships. The law is not only a measurement of legal behavior, but also a concrete connection of interacting subjects. That is why positive law, which is the way of the transformation of objective law in reality cannot pretend to be the only possible form of law.
Combined organically into one process, positive and concrete law constitutes an existing law, but not all existing laws appear to be valid laws, embodied in real relationships. The purpose of legal regulation, as you know, is to create stable orders in society, aimed at meeting the needs of the subjects of actual relationships in material and spiritual benefits.
As a result, general and specific rules of law perform their function as a measure of lawful behavior only after they are embodied in specific actual relationships and change their status from formal normative phenomena to
the status of actually operational, valid legal prescriptions. Thus, valid law is a set of norms of positive and concrete law that correspond to objective law as the basis embodied in real relationships. The application of legal norms in specific relationships, reflecting the subjective arbitrariness of the legislator, which does not correspond to their objective basis, does not and cannot generate valid law. Strict adherence to the distorted form of positive law in the application of the law does not imply the strengthening of the rule of law, as the positivists believe, but complete lawlessness, massive infection of the real existing practice with erroneous normative decisions of the legislator embodied in law enforcement acts.
The law enforcer, bound by the constitutional principle of legality, experiences conflicting feelings. Non-compliance with legislation that does not correspond to a public servant's individual right has serious consequences. At the same time, the execution of laws that reinforce legislative arbitrariness, elevating the criminal will to the rank of general binding decisions, as was the case in Nazi Germany, is recognised as the same crime as the actions of the legislator. As we know, the guilty verdict was issued both to Hitler's associates and to persons who were directly involved in various punitive operations against the civilian population of the USSR and other European countries.
Therefore, an enforcement decision based on norms, which instead of a law measure containing legislative arbitrariness, cannot, in any case, become a valid law. If positive law is a distorted form, it will be the same for the enforcement decision. At the same time, valid positive law does not guarantee the validity of a law enforcement decision, which, for one reason or another, including the arbitrariness of an official, may deviate from it, not comply with the principles of objective law. Complete harmony between real positive law and the law enforcement decision based on it takes place only where both forms of law consistently have a single basis - objective law, which successfully adopts its principles in their immediate content.
Actual Relationships
In accordance with the obligations assumed by the parties to the contract, they turn words into deeds, endeavour to accomplish, to give life to all that is written in the contract. Objective law achieves its ultimate goal: from a regularity that existed as a possibility, it, consistently taking the forms of positive, individual and concrete law, is embodied in immediate reality in the form of actual relationships.
The legal form and content of economic or other relationships, harmoniously corresponding to each other, generate results that can satisfy the needs of the subjects, and the economy of the country is asserting itself as a truly functioning and very important part of society. Thus, in real actions, it is possible to realise the goals of the individual, the objective law and the corresponding social sphere. Therefore, the concrete relationship that completes the transition of objective law into reality has every reason, being the last in this process, to stand ahead of the previous forms of law as a really valid, genuine law.
The complexity of the stage of actual relationships lies in the fact that a significant portion of them have a distorted form, incapable of translating
objective law into reality. Practice may be inconsistent as well as rational. Actual relationships, as a reality, of direct practice, are a valid form of objective law only if they are consistent with universal principles. The correspondence of actual relationships to positive law, however, does not guarantee their validity as a form of objective law, since a significant part of the norms of positive law, in turn, has a distorted form, is law only in its source and method of adoption, but not in legal and social content.
Thus, in the process of transition from possibility to reality, objective law successively passes through three forms and is finally embodied in the fourth. Only in a certain act of actual relationship the goals of the individual, objective law and the economy as a whole can be realised. Accordingly, the specific law, which completes the transition of objective law into reality, has every reason, being the last in this process, to become ahead of the previous forms of law as a really valid, valid "living" law, embodying legal patterns and creating micro conditions for the progressive development of society and the state.
The essence of the legal regulatory mechanism is to translate legal principles into actual laws of operation and development of law by enshrining in legislation as a measure of lawful behavior and legal responsibility. The implementation by the subjects of law of a legislatively defined measure creates a stable legal order in society, which in turn ensures the massive, collective activity of society to translate legal principles into real life in a system of actual social relationships. As a result, society, and the state, acting in accordance with the laws of social development, manage to ensure the progressive development of social spheres and successfully solve the problems of the maximum possible satisfaction of the universal human rights of everyone with the material and spiritual benefits.
It is clear that currently, given the state of society, for a variety of objective and subjective reasons, it is not always possible to achieve better results. Nevertheless, society and the state, acting in this way, in the direction of the stated ideal, will achieve positive results of their activities much more successfully and fruitfully than in the current practice, oriented towards positivist attitudes that elevate any legislative arbitrariness to the level of the law in force and only abstractly and helplessly setting the task of separating the valid law from the legislative provisions.
Positive law is deprived of the capacity to regulate social relationships, which is subjectively attributed to it by positivist doctrine, because of the absence of any motive and means for it. The endowment of the positive law with a regulating function did not take place at all through the goodness of the spiritual positivist doctrine of the law, but because of its one-sidedness and inability to reveal the contradictory process of legal regulation and recognise the fact that, from the perspective of this doctrine, it is impossible for an individual to apply the regulatory function of law. Such a conclusion was also not possible due to political reasons. Imagine how ridiculous the ideologists of positivism at the beginning of the 19 th century would have been looked if they sincerely wanted to exorbitantly praise the bourgeois state and at the same time denied its role as the real regulator of social relationships in favor of the working class.
No matter how absurd from the perspective of modern positivism the conclusion about the individual as a regulator of concrete relationships, nevertheless, the fact remains that the individual has always conscientiously fulfilled this duty from the earliest days of the history of law for 5-6 thousand years. Not everyone can resist the temptation to take someone else, especially when something is somewhere without an owner. Therefore, it is necessary to determine the order in which a person should satisfy the needs for material goods without harming others.
Consequently, the legal regulatory function of the individual is a necessary and primary condition of his existence as a human being after the collapse of the tribal community system and the establishment of private ownership of material goods. Alienated from all other members of society, the individual, in order to satisfy his needs for material and spiritual benefits, was forced to enter into various kinds of social relationships, including relationships with other private owners like him. Historically, the first economic relationship, in the form of exchange, has also given birth to a new means of social regulation of the relationship among its participants - the law. For thousands of years, the individual has regularly exercised the function of regulating exchange relationships, and the universal principles of law identified by him have not lost their significance to the present. The state did not participate in this process, its function was the administration of justice, conducted according to the norms established by the individuals.
Only in the fifth century B. C., the state displayed a notable interest in legislation. Initially, for purely paternalistic purposes, to fill in the gaps in customary law, and then, in later periods, to consolidate the political power of the economically dominant class, its right to exploit the masses and the powerlessness of the latter. In modern times, there is an urgent need to introduce the legislator into its inherent framework of determining the measure of the lawful behavior of subjects. Legal regulations must be transferred definitively and irrevocably to the level of the individuals, in order to guarantee their free will within the limits established by the state.
The outlined model of socio-legal studies of the mechanism for transferring objective law into reality, that reveal only the scheme, the structure of these studies, convincingly indicates how complex and multifaceted the path to solving the fundamental centuries - old task of jurisprudence is to identify the existing rules of law at the level of actual relationships. At the same time, the solution of such a problem is not an ultimate goal of legal science but is only the first step towards the formation of a multifaceted scientifically justified information base that reliably testifies to the advantages and disadvantages of the system of existing legislation and social and legal factors that impede its successful functioning.
Conclusion
Under modern conditions, the positivist theory of law, which has dominated the minds of lawyers for over two centuries, is increasingly showing its inconsistency falling in conflict with democratic institutions intended to ensure the effective functioning of universal human and citizen rights and freedoms (the rule of
law, constitutional courts, an individual's right to legal protection, etc.). The materialist theory of law, on the contrary, takes into account progressive, democratic trends in the development of contemporary law and determines the optimal mechanism for implementing the principles of law, justified by modern jurisprudence and enshrined in international legal acts in the form of universal rights and freedoms of man and citizen. These principles, reflecting the natural correlations of modern society, the state, and the individual, form an objective law, which is formal in nature and needs an effective mechanism for its implementation in immediate reality.
The mechanism determined by the logic of the transition of objective law from possibility to reality, consists of four elements (forms of law): 1) positive law, accepted by the state, other power structures; 2) individual law formed by each acting subject in accordance with the conditions of his existence; 3) concrete law in the form of civil law contracts and law enforcement acts; 4) actual relationships, the lawful behavior of the subjects, which corresponds to the principles of objective law, embodied in the norms of positive and concrete law. Thanks to this mechanism, the role of the norms of international law in the regulation of intranational relationships rises, as well as the status of the individual as an independent subject of legal regulation, through whose efforts it is only possible to translate positive law into immediate reality.
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Information about the authors / Информация об авторах
Vladimir M. Syrykh, Dr. Sci. (Law), Professor, Chief Researcher of the Russian State University of Justice (69 Novocheremushkinskaya St., Moscow, 117418, Russian Federation), Honored Worker of Science of the Russian Federation.
Сырых Владимир Михайлович, доктор юридических наук, профессор, главный научный сотрудник Российского государственного университета правосудия (Российская Федерация, 117418, Москва, ул. Новочеремушкинская, д. 69), заслуженный деятель науки Российской Федерации.
Bakhyt Altynbassov, Cand. Sci. (Law), Associate Professor, Doctoral Candidate of the Faculty of Law and Social Sciences, University of Bristol, UK (Beacon House, Queens Road, Bristol, BS8 1QU, UK).
Алтынбасов Бахыт Омирханович, кандидат юридических наук, ассоциированный профессор, докторант Факультета права и социальных наук Бристольского университета, Великобритания (Beacon House, Queens Road, Bristol, BS8 1QU, UK).
Funding and Conflicts of interests/Competing interests
The authors received no financial support for the research, authorship, and publication of this article. The authors declare that they have no conflict of interest.
Финансирование и конфликты интересов/конкурирующие
интересы
Авторы не получали никакой финансовой поддержки для исследования, авторства и публикации этой статьи. Авторы заявляют об отсутствии конфликта интересов.
Дата поступления рукописи в редакцию издания: 10.10.2022; дата одобрения после рецензирования: 07.12.2022; дата принятия статьи к опубликованию: 10.12.2022.
Submitted: 10.10.2022; reviewed: 07.12.2022; revised: 10.12.2022.
