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64Modern Understanding of Law/ Современное правопонимание
Во втором номере журнала «Правосудие/Justice» за 2019 год была опубликована статья известного ученого доктора юридических наук, профессора В.В. Ершова «Право в контексте парадигмы метамодерна», которая привлекла внимание широкого круга читателей научной новизной, неординарной постановкой и разрешением проблем современного правопонимания. Введенный в научный оборот термин «метамо-дерн» автор исследовал во взаимосязи с особенностями и крайностями модернистского и постмодернистского понимания права. В статье отражены современные тенденции в развитии теории и философии права, которые свидетельствуют о необходимости пересмотра устоявшихся правовых понятий и категорий в условиях изменившегося культурно-исторического и идеологического контекста развития и функционирования институтов права и государства. В силу этого и не в последнюю очередь по настоятельной просьбе читателей редакция журнала приняла решение о переводе и публикации статьи профессора В.В. Ершова на английском языке с тем, чтобы ознакомить с ее положениями иностранных ученых и тем самым расширить читательскую аудиторию, вовлечь в дискуссию не только отечественных ученых, но и представителей различных зарубежных научных школ, сложившихся на сегодняшний день в мировой юриспруденции.
UDC 34.01
DOI: 10.37399/issn2686-9241.2020.1.99-114
Law in the Context
of the Metamodern Paradigm
Valentin V. Ershov*
* Russian State University of Justice, Moscow, Russia For correspondence: evv@rsuj.ru
Introduction. In 2010, Dutch philosophers introduced the concept of the "metamodern" into scientific circulation. The essence of this concept is the desire of these philosophers to rise above the extremes of modernism and postmodernism, and to explore social phenomena in the unity of their diversity and synthesis. This article, in the context of the metamodern paradigm, attempts to study law in the unity of diversity and the synthesis of various forms of national and international law, and in the single system of homogeneous elements which make it up. Theoretical Basis. Methods. The theoretical basis of the work is the concept of integrative understanding of law, according to which only homogeneous elements of law are synthesized in
a single system of law. Systemic, historical, logical, comparative and hermeneutical research methods were used.
Results. The article analyzes the controversial, in the opinion of the author, conclusions about the law from the standpoint of both legal positivism and the integration of law, as characterized by the synthesis of diverse social phenomena, right and wrong, including those formulated by G. Hart and R. Dvorkin. The work also shows counterproductive practical results of the adoption of legal norms established by controversial interpretation of law.
Discussion and Conclusion. As a result of the discussion, the author concludes: law in the context of the metamodern paradigm from the perspective of the concept of integral understanding of law, which synthesizes only homogeneous social elements, is expressed primarily in the principles and norms of law contained in a single, multi-level and still-developing system of forms of national and international law, which are implemented in the state.
Keywords: law, paradigm, metamodern, modernism, postmodernism, legal positivism, legal naturalism, wrong, principles of law, legal system, sources and forms of law, gaps in law, integral understanding of law.
For citation: Ershov, V.V., 2020. Law in the context of the metamodern paradigm. Pravosudie = Justice, 2(1), pp. 99-114. DOI: 10.37399/issn2686-9241.2020.1.99-114
Право в контексте парадигмы метамодерна В.В. Ершов*
* ФГБОУВО «Российский государственный университет
правосудия», г. Москва, Россия
evv@rsuj.ru
Введение. Западные философы ввели в 2010 г. в научный оборот понятие «метамодерн» с целью подняться над крайностями модернизма и постмодернизма, исследовать социальные явления в единстве их многообразия и синтеза. В статье в контексте парадигмы метамодерна сделана попытка исследования права в единстве многообразия и синтеза различных форм национального и международного права, единой системы однородных элементов, ее составляющих.
Теоретические основы. Методы. Теоретическая основа работы - концепция интегратив-ного правопонимания, в соответствии с которой в единой системе права синтезируются только однородные элементы права. Методы исследования - системный, исторический, логический, сравнительный и герменевтический.
Результаты исследования. В статье проанализированы спорные, по мнению ее автора, выводы о праве с позиций как юридического позитивизма, так и интеграционного правопонимания, характеризующегося синтезом разнородных социальных явлений, права и неправа, в том числе сформулированные Г. Хартом и Р. Дворкиным. В работе выявлены контрпродуктивные практические результаты принятия норм права, установленных в соответствии с дискуссионными типами правопонимания.
Обсуждение и заключение. В результате исследования автор пришел к выводу: право в контексте парадигмы метамодерна с позиции концепции интегративного правопонимания, синтезирующей лишь однородные социальные элементы, выражается прежде всего в принципах и нормах права, содержащихся в единой, многоуровневой и развивающейся системе форм национального и международного права, реализуемых в государстве.
Ключевые слова: право, парадигма, метамодерн, модернизм, постмодернизм, юридический позитивизм, юснатурализм, неправо, принципы права, система права, источники и формы права, пробелы в праве, интегративное правопонимание
Для цитирования: Ершов В.В. Право в контексте парадигмы метамодерна // Правосудие. 2020. Т. 2, № 1. С. 99-114. DOI: 10.37399/issn2686-9241.2020.1.99-114
Introduction
O n May 16, 2019, Chairman of the Constitutional Court of the Russian Federation V.D. Zorkin spoke at the 9th St. Petersburg International Legal Forum with a lecture entitled "The Law of the Metamodern: A Statement of the Problem". In his lecture, V.D. Zorkin considered it "...advisable to speculate on pressing legal issues in the context of the metamodern paradigm, which, apparently, correctly caught some new trends in the philosophical understanding of social phenomenon"1 (hereafter - my bold. - V.E.).
The term was launched by a Dutch philosopher Robin van den Akker and a Norwegian media theorist Timotheus Vermeulen in their essay "Notes on Metamodernism", which was published in "Journal of Aesthetics & Culture" in 2010 [Vermeulen, T. and Akker, R. van den, 2010]. "This is not so far about the theory of metamodern, but rather about the concept, i. e. about the idea containing a certain intention of a new outlook on the world. The essence of this new outlook... is in the desire to rise above the extremes of modernism and postmodernism and see the world in the unity of its diversity... in the metamodernist approach attracts the idea of synthesis of various types of legal understanding... as special paradigms of thinking"2.
It would seem that the essence of metamodern is a conscious desire to avoid a simplified understanding of the most complex social phenomena, or to explore them in unity and diversity, within a single system.
With this current philosophical approach, law in the context of the metamodern paradigm, in my opinion is objectively characterized by overcoming the artificial extremes and linear approaches of modernism and postmodernism, and providing an objective synthesis of various types of legal understanding, an integrated system of national and international law in the unity of its diversity. At the same time, as a rule, the still prevalent types of legal understanding that existed earlier, are primarily characterized, firstly, by vague notions of law; and secondly, based on theoretically rather unconvincing views on law; and thirdly, based on a synthesis of diverse social phenomena that regulate social relationships, for example, law and morality.
Theoretical Basis. Methods
The assumption made in the introduction can be confirmed by the numerous conclusions of famous and scientists who are still cited. Thus, the Roman lawyer Publius Juventius Celsus wrote: "Law is the art of good and justice" (Jus est ars boni et aegui)3. The first title of the Digest, entitled "De iustitia et
1 URL: http://www.ksrf.ru/ru/News/Speech/Pages/ViewItem.aspx?ParamId=86
2 Ibid.
3 Ibid.
iure" ("On Justice and Law"), contains a quote from the writings of Ulpian, in which the author compares lawyers with priests: we, he says, administer justice and disseminate knowledge of the good and the just, separating the right "from the wrong, distinguishing between the permissible and the unlawful, adhering to a true philosophy, not imaginary"4.
According to V.D. Zorkin, "...for many centuries, two fundamentally different approaches to understanding law have been competing in legal thought: legal positivism, which extends moral standards beyond the framework of law, and "jusnaturalism" (the philosophy of natural law), which treats law and morality as essentially unified, mutually complementary phenomena"5. I believe that legal positivism is characterized not only by "moving moral norms beyond the framework of law", and jusnaturalism is not limited to the interpretation of law and morality "as essentially consolidated, mutually complementary phenomena".
John Austin, who one of the first in the 19 th century in a systematic way to have developed the theory of legal positivism, distinguished between the law "as it is" and "as it should be". "Law as it is", according to J. Austin, is a positive law established by human authorities (hence the name -posited, given its position). So, according to J. Austin, law is a sovereign's command. Hence, J. Austin's theory of law is called "a command theory". Consequently, J. Austin was looking for a key to understanding law in a simple idea of a sovereign's order backed by threats [Hart, H.L.A., 1961]. Elaborating on this approach, H. Kelsen wrote, "Legal norms may have any kind of content" [Kelsen, H., 2007, p. 113].
In this regard, legal positivism leaves open a whole series of questions. For instance, can anything else besides "human authorities" be sources of law? If so, which entities and in what form do they develop such law? In my opinion, the answer to this question can only be positive: yes, law can be developed not only by the one subject of law-making, but furthermore, in its various forms. Firstly, law as a regulator of social relations had obviously existed even before the emergence of states, when various types of prestate "human authorities" were formed. Secondly, other forms of law have objectively existed; the sources of which were not "human authorities", for example, customs of law and normative legal contracts. In this regard, I think, it is possible to draw the following conclusion: legal positivism is theoretically insufficiently thought-through and open to debate. In addition, it seems that legal positivism is practically rather unproductive, because regulatory acts adopted by the "human authorities" often contain gaps and conflicts which cause numerous problems and lengthy disputes, for example, overcoming gaps by courts and conflicts in regulatory legal acts.
4 URL: http://www.ksrf.ru/ru/News/Speech/Pages/ViewItem.aspx?ParamId=86
5 Ibid.
"Jusnaturalism" (the philosophy of natural law), "interpreting law and morality as essentially consolidated, mutually complementary phenomena", is, I think, also theoretically controversial, and practically counterproductive. Firstly, I believe that law and morality are not "essentially unified" social phenomena or regulators of social relations. In my opinion, the most profound and convincing conclusion is made by G.W. Hegel, who distinguished between the categories of "right" and "wrong" (unrecht), including morality. While analyzing the category of "wrong", G.W. Hegel emphasized, ".. .right... proceeds in wrong to become a show, an opposition between the principle of rightness and the particular will as that in which right becomes particularized. In wrong appearance proceeds to become a show. A show is a determinate existence inadequate to the essence, the empty disjunction and positing of the essence, so that in both essence and show the distinction of the one from the other is present as sheer difference. The show, therefore, is the falsity which disappears." [Hegel, G.W., 1990, p. 137]. At last, G.W. Hegel comes to the general conclusion: "Wrong is... the show of the essence, putting itself as self-subsistent" [Hegel, G.W., 1990, p. 138].
With such a general scientific approach, right and wrong (unrecht) are essentially not uniform, but different regulators of social relations. I believe that it is theoretically reasonable to attribute to wrong such things as justice, individual judicial acts, "legal positions of the courts", "quasi-right", "soft" right, "standards", etc. It is possible, first of all, to single out the following objective signs of wrong - non-legal regulators of public relations:
- optional for an indefinite circle of subjects of legal relations;
- forcibly unrealisable;
- mostly indefinite.
At the same time, right, unlike wrong, is characterized by significantly different objective features:
- obligatory for an indefinite circle of subjects of legal relations;
- forcibly realisable;
- mostly definite.
Therefore, wrong is the appearance of right, untrue right, eroding the right proper, making it more indefinite and forcibly unrealisable. The use of wrong as a regulator of public relations also leads to:
- uncertain law enforcement practice;
- numerous inconclusive judicial acts;
- lengthy time for litigation in courts;
- and most importantly - to numerous violations of the rights and legal interests of subjects of disputed legal relations.
Further, from the standpoint of distinguishing between right and wrong, I would like to analyze the main scientific conclusions of H. Hart and R. Dworkin, since the discussion between supporters of legal positivism and jusnaturalism is known as the dispute between Hart and Dworkin. It is known that Herbert
Hart developed his concept based on criticism of the views of John Austin. In 1961 Hart published his work "The Concept of Law" [Hart, H.L.A., 1961], which many foreign and Russian researchers call the main work of philosophy of law of the 20th century, containing, according to S.V. Moiseev, "a sophisticated version of legal positivism" [Hart, H.L.A., 2007, p. 270].
First of all, Hart criticized a simplified interpretation of law as an order of the sovereign, "The concept of sovereign bestowed with illimitable power - he believes - distorts the character of law... supreme lawmaker... is not beyond law... it is necessary to seek the sovereign behind the limited legal means of the legislature" [Hart, H.L.A., 2007, p. 74-77]. Consequently, unlike J. Austin, Hart was not an advocate of a closed system of law but of an open one.
With this approach, Hart singled out two main areas of criticism of legal positivism. According to the first one, there are some principles of human behaviour with which laws must coincide in order for them to have legal force (Dworkin went along this path). The second approach involves the combination of legal reality and moral value [Hart, H.L.A., 2007, p. 188].
The main idea of Hart is formulated as follows: "Law is a combination of primary and secondary rules. Primary rules relate to actions that individuals should or should not take, secondary rules relate to the primary rights themselves and establish ways in which primary rules can be recognized, introduced, repealed, changed, and by which the fact of their violation can be reliably established" [Hart, H.L.A., 2007, p. 278-280].
The concept of secondary rules developed by Hart contains three varieties of them: recognition rules, rules of change, and adjudication rules. The rules of recognition make it possible to determine what is right in a given society. In the rules of change, legal means are developed to correct their content. The adjudication rules establish the adjudication procedure primarily in difficult cases, during which the judge legislates [Hart, H.L.A., 2007, p. 278-280]. In my opinion, the concept of secondary rules developed by Hart allows us to attribute it to supporters not of "soft" right, but rather of a scientifically debated concept of integration of right and wrong.
Ronald Dworkin was an American and English lawyer, philosopher of law, Hart's disciple and at the same time one of his most consistent and irreconcilable critics. Dworkin's main work "Taking Rights Seriously" is characterized by an attempt to find a theoretical compromise between positivism and the concept of jusnaturalism, the third theory of law [Dworkin, R., 1977]. Unlike Hart, Dworkin believes that judges never legislate, but only appeal to general standards of fairness or principles, since law is never incomplete or uncertain. "My approach, Dworkin concludes, will be based on the fact that when lawyers think or argue about legal rights and obligations... they resort to standards that do not function as norms, but act differently as principles, strategies or standards of another kind; positivism presupposes a model system of norms, and its central concept of the only fundamental criterion of law hides from
us the important role of standards that are not norms" [Dworkin, R., 2004, p. 45].
It is quite typical that Dworkin defined the categories of "principles", "standards" and "strategies" very vaguely and theoretically unconvincingly. Thus, Dworkin wrote: "Most often I will use the term 'principle' in the most general sense - as a sign of all those standards that are not the norm... but there is also a difference between principles and strategies... I call "strategy" a standard that articulates the need to achieve some goal, usually related to the improvement of some economic, political or social conditions in society... I call a "principle" a standard that should be observed not because it contributes to changing or reducing some economic, political or social situation, but because it expresses some moral requirements, be it requirements of justice, honesty, etc." [Dworkin, R., 2004, p. 45].
In my opinion, firstly, Dworkin's allocation of such categories as "principles", "strategies" or "standards" is not convincingly motivated. Secondly, it seems that the principles, rather than the "principles of law" in general, are theoretically more justifiably attributed to one of the types of legal regulators of public relations, rather than to very uncertain "standards". If there are principles of law, I think there is indeed no gap in law and the court can make a decision referring to the principles of law as a regulator of public relations6.
Dworkin primarily saw his task as the need "...to distinguish principles from norms in the most general sense" [Dworkin, R., 2004, p. 46]. I think principles of law and norms of law are indeed different legal regulators of public relations, elements of the system of law. The outstanding conclusion of F. Bacon seems to be quite characteristic: "Principles are the primary and simplest elements from which everything else was formed" [Bacon, F., 1937, p. 22]. I would like to "translate" F. Bacon's conclusion into the language of law: principles of law are the primary and simplest (abstract) legal regulators of social relations, from which the rules of law, as well as other legal regulators of social relations should be developed (specified) in the first place [Ershov, V.V., 2018, pp. 255-310].
Later on, Dworkin came to a controversial conclusion: "...in complex legal systems... it is impossible to draw a line between legal and moral standards, as positivism insists... some principles should be considered as law... while other principles should not" [Dworkin, R., 2004, p. 76]. I think this conclusion was made by Dworkin from the point of view of the discussion concept of integrative legal understanding, which synthesizes right and wrong, including the principles of law and morality.
Thus, the essence of the "theoretical compromise between positivism and the natural legal concept, the third theory of law" developed by Dworkin, is essentially one of a kind of the scientific discussion concept
For more details see: [Ershov, V.V., 2018, pp. 241-309].
of integrative legal understanding, which arguably blurs the right, a kind of "measurement" of the right "principles" based on non-legal categories -justice, equality, etc.
In 1994, after Hart's death, the second edition of his work "The Concept of Law" was published with a new "postscript", primarily containing a response to criticism of Dworkin. Later on, Hart intended to respond to the criticism of other researchers, but the scientist failed to realize his intention due to his death. In the first part of the postscript, Hart admitted that he did not give enough space, firstly to principles and judicial decision-making in "difficult situations" in the absence of any regulatory prescriptions, or, more precisely, in situations of gaps in regulations; and secondly to the need to distinguish between rules and principles; and finally, to the compatibility of principles and rules of recognition.
In my opinion, Hart was quite close to such conclusions in his work "The Concept of Law". For example, Hart wrote in 1961: "Although the idea of unity of primary and secondary rules has... advantages and... it would be consistent to treat the existence of this characteristic unity of rules as a sufficient condition for the use of the expression 'legal system' - we still did not claim that the word 'law' should be defined in these categories" [Hart, H.L., 2007, p. 213]. Hart's next conclusion seems characteristic: "...certain rules should not be called actual law because of their extreme moral injustice... The virtue of the idea that we have accepted as central is that it allows us to see the multiple connections between law, coercion and morality as they are" [Hart, H.L.A., 2007, p. 213]. It is significant that one of Hart's students, Joseph Raz, in developing his teacher's concept, suggested that law should not be limited to the rules of recognition, but should be seen as a flexible, open and not fully specific system [Hart, H.L.A., 2007, pp. 289, 295].
Thus, I think that the views expressed by Hart and Dworkin allow us to draw a final conclusion: Hart and Dworkin were not supporters of "soft positivism" and "jusnaturalism". In general, they shared the same positions (albeit with some nuances) of the scientific discussion concept of the integrative understanding of law, which arguably synthesizes right and wrong, and of various social regulators of public relations. As a result, in practice, the application of such a concept cannot but lead to an increase in the degree of uncertainty of law, unstable, diverse and directly contradictory law enforcement, including judicial practice, lengthy consideration of disputes in courts, inconsistent positions of different courts and even the judicial staff in a single judicial body, and most importantly - to the violation of rights and legal interests of subjects of legal relations.
Results
Continuing the discussion with the above-mentioned scientists, I consider it necessary to briefly express my point of view on the problems raised
in this article7. It seems that first of all it is necessary to try to find an answer to the most important question: what should the system of law be like? Open or closed? Legal positivism gives only one answer: in essence, it should be closed, limited by "the sovereign's orders" (?!). Jusnaturalism, on the other hand, considers it to be endlessly open (?!). I think that the first and second answers are direct opposites, from the general scientific and theoretical positions - debatable, and practically - counterproductive. In my opinion, figuratively speaking, the "truth", as always, is somewhere in between.
First of all, from the general scientific point of view, I believe it is necessary to refer to the theory of systems. The Soviet classics of the theory of systems -I.V. Blauberg, V.N. Sadovsky and E.G. Yudin, investigating the theory of systems, distinguished three classes of existing sets of objects: unorganized sets ("summative whole"), unlimited (simply organized systems) and organic systems [Blauberg, I.V., Sadovsky, V.N. and Yudin, E.G., 1970, p. 11]. Simply organized and organic systems have common and special (distinguishing) properties. For example, I.V. Blauberg and E.G. Yudin believed that they were equally "...characterized by the presence of connections between elements and the appearance of new properties in the integral system which are not inherent in the elements separately. Communication, integrity and the stable structure provided by them are the hallmarks of any system" [Blauberg, I.V. and Yudin, E.G., 1973, p. 177]. At the same time, they emphasized that "...if the former is a connection of relatively isolated elements into a known integrity, the latter is a "physically indivisible self-developing whole" [Blauberg, I.V. and Yudin, E.G., 1973, pp. 177, 188].
Analysing Soviet law, S.S. Alekseev, a recognized leader in the science of the Soviet theory of law in the second half of the 20th century, reasonably, I believe, wrote: "Soviet law as a system is such a specific social phenomenon, which should be placed somewhere between 'simply' organized and organic systems" [Alexeev, S.S., 1975, p. 16]. Taking into account the objective state of the Russian system of law in the 21st century, I believe it is possible to draw the following conclusion: not only Soviet, but also modern Russian and international law implemented in Russia can be considered within the framework of a single 'simply' organized system of domestic (Russian) and international law, characterized by the integrity, connection and sustainable structure of the elements that constitute them.
According to a reasonable opinion of the famous Soviet researcher A.F. Cherdantsev, from the point of view of ontology, the system of law should not include diverse phenomena, or, in my opinion, heterogeneous social phenomena [Cherdantsev, A.F., 1999, p. 203]. From the point of view of ontology, the legal system cannot contain heterogeneous legal and non-legal phenomena, right and wrong. Thus, only homogeneous legal
This point of view is set out in more detail in my monograph: [Ershov, V.V., 2018].
phenomena, such as different forms of national and international law, can form the legal system.
With the contradictory and highly inconsistent development of a single, in particular, European legal space, the 'simply' organized system of domestic and international law appears to be inevitable, and endless changes will gradually transform it into an organic system of European law. I believe that the future organic system of European law, in the context of the metamodern paradigm, and from the point of view of scientifically grounded concept of integrative legal understanding which synthesise only homogeneous elements of law, will primarily be characterized by principles and norms of law, contained in the unified, multilevel and developing system of forms of national and international law, and realized in the state.
The next most important theoretical and practical problem that I would like to explore in this article is related to the elements of the legal system. The well-known Soviet scientist M.I. Baitin, analyzing it in the most general way, characterized this system as: "...a set of all known legal phenomena..." [Baitin, M.I., 2005, pp. 178, 179]. This position, I think, is based on the widespread view of the French scientist J. Carbonnier: the legal system is a container, a concentration of various legal phenomena [Carbonnier, J., 1986, p. 197].
In my view, elements of the legal system are in reality only legal phenomena -separate forms of national and international law. In modern Russian legal literature, two approaches have been formed to the relationship between the concepts of "sources" and "forms" of law. M.N. Marchenko, one of the recognized contemporary leaders of the Russian legal theory, believes: "The essence of the first of them is a complete identification of the source of law with the form of law, in the reduction of the source of law to the form of law, and vice versa, the form of law to the source of law..." [Marchenko, M.N., 2005, p. 55]. The second approach to addressing the relationship between "sources of law" and "forms of law" is that "...the concepts are considered to be completely incompatible with each other" [Marchenko, M.N., 2005, p. 35].
It seems that, based on historical and etymological arguments, the second approach is theoretically more accurate. I think that on the one hand, it is more convincing to consider the notion of "sources of law" as factors "creating" the law, its beginnings, and what it arises from. For example, the source of Russian normative legal acts the activities of authorized law-making bodies. On the other hand, I believe that the very concept of "forms of law" leads to a conclusion: it is its internal and external expression.
With this theoretical approach, I believe it is theoretically more justified, and in practice more productive to introduce into the scientific circulation the concept of "a system of forms of domestic (national) and international law", consisting of two subsystems - domestic (national) and international law. This system of forms of domestic (national) and international law is characterized by the integrity, sustainable structure, interconnection and
interdependence of its homogeneous elements - forms of domestic (national) and international law. Thus, it can be argued that, firstly, the system of forms of domestic (national) and international law should be open; secondly, it should contain only the homogeneous elements of the law itself - forms of domestic (national) and international law.
The most important question studied by Hart and Dworkin is the nature of the principles of law ("legal principles", as I think many, including modern scientists, write). Hart and Dworkin unfortunately did not pay due attention to the "principles of law" category in their works. For example, Dworkin wrote: "More often than not I will use the term 'principle of law' in the most general sense as a sign of all those standards that are not the norm ... I call such a standard a principle which should be observed not because it promotes change or preservation of some economic, political or social situation, but because it expresses some demands of justice, honesty, etc.".
Firstly, Dworkin did not explore the nature of the principles of law. Secondly, Dworkin defines "principle" as a generic concept as a very vague "standard". Thirdly, Dworkin explores "principles" that contribute to "changing or preserving some economic, political or social situation" rather than law. Finally, fourthly, according to Dworkin, the "principle" "expresses some moral requirements, be it requirements of justice, honesty, etc.". Consequently, Dworkin analyses "principles" in general, not the principles of law from a discussion of the general scientific and theoretical position of synthesis of right and wrong.
Unfortunately, the majority of Soviet and contemporary Russian researchers and practitioners, while studying the principles of law, also seem to have come to very uncertain and theoretically controversial conclusions. Thus, N.G. Alexandrov defined "the basic principles of socialist law" as "...provisions expressing a general orientation to the most essential features of the content of legal regulation of public relations" [Alexandrov, N.G., 1957, p. 17]. E.A. Lukasheva, one of the first in the USSR to specifically study the principles of law, took a small step forward, concluding that the principles of law are "...objectively conditioned principles according to which the system of law is built" [Lukasheva, E.A., 1970, p. 21]. Later, S.S. Alekseev took the next step in understanding the principles of law: the principles of law are "...the initial normative and guiding principles expressed in law, characterizing its content, its foundations, the laws of public life enshrined in it. Principles are what permeates the law, reveals its content in the form of initial, cross-cutting "ideas", main principles, regulations and guidelines" [Alexeev, S.S., 1972, p. 102]. It should be noted that S.S. Alexeev referred the principles of the law to very vague origins which are "the initial normative and guiding principles that fix the regularities of public life" (?!) S.S. Alekseev further specified: principles are "normative and guiding regulations". This led many Soviet and Russian researchers to believe that "norms-principles" might exist. S.S. Alekseev
wrote as well: "...Principles of law mostly act as norms (norms-principles)" [Alexeev, S.S., 1981, p. 103].
V.P. Gribanov, who specialized in civil law, wrote more reasonably: "...the identification of the legal principle (in my opinion, theoretically more precisely than the legal principle. - V.E.) with the rule of law is practically equal to the denial of legal principles in general" [Gribanov, V.P., 1966, p. 12]. The opinion of the pre-revolutionary legal scholar L.A. Tikhomirov also seems to be a surprising insight: "The legislator himself must be guided by something, giving or not giving the person the right or defining any actions as his or her duty" [Tikhomirov, L.A., 1998, p. 569].
Even in ancient times it was emphasized: "The principle is the most important part of everything" (principium estpotissima pars cujugue). In this regard, in the "translation" into the "language of law", I believe it is possible to conclude that the principle of law is the primary element of the legal system. It was not without reason that Aristotle recognized the "principle"in the objective sense as the first value; the matter on the basis of which something exists or will exist8. That is why many philosophers came to the conclusion: the principle is a theoretical generalization of the most typical, expressing regularities, which is the basis of something. "Principle is something which contains the foundation of the universal connection of all that is a phenomenon" [Kant, I., 1963, p. 340]. "Principle is. an entity" [Hegel, G.W., 1970, p. 123].
Under such a general scientific approach, it seems that the principles of law are not the "beginnings", "ideas", "provisions", etc., but the objective, actual (operating) legal regulators of social relations, the most important, fundamental and primary elements of a unified, developing and multilevel system of forms of national and international law implemented in the state. Fundamental (general) and special principles of national and/ or international law are the foundations of the universal connection of the elements of the system of law forms, "an entity". As a result of the specification of the principles of law, more specific rules of national and international law and more specific law are being developed. Consequently, more expected and uniform law enforcement practices are brought into being. Ultimately, the rights and legal interests of the subjects of legal relations are better protected9.
One more significant issue investigated by Hart and Dworkin is related to the consideration of disputes by the court in so-called "difficult situations". What is the legal nature of "difficult situations" and what should the court be guided by in such situations? Subjective judicial discretion? Right? Wrong? Something else? Hart and Dworkin did not provide convincing answers to these and other questions.
8 Logical dictionary-guide. M. : Nauka, 1975. P. 477.
9 For more details see: [Ershov, V.V., 2018, pp. 255-382].
Правосудие. Том 2, № 1. 2020
As is known, Hart defined law as a set of primary and secondary rules. Among the secondary rules, Hart singled out the rules of recognition, change and decision-making. The rules of decision-making establish the procedure for the adoption and legal limits for court decisions primarily in difficult cases, including cases where the court establishes conflicts and gaps in regulations adopted by the sovereign [Hart, H.L.A., 2007, pp. 277280]. The development of law by the court is based on the basic idea of legal positivism - the establishment of positive law by "human authorities" (posited, given its position), including the court as one of the organs of state power. At the same time, the acceptance of law by the court, firstly, contradicts the doctrine of the division of powers into the legislative, executive and judicial branches generally accepted in the world; secondly, the constitutions of many states that have enshrined this doctrine, including the Russian Constitution.
Dworkin believed that each legal problem can have only one legal solution, since "law is a closed system that leaves no room for judicial discretion. The judge does not create new norms, but only discloses existing ones" [Dworkin, R.M., 1986, p. 225]. However, firstly, as it was revealed above, the right is not a closed system but an open one. Secondly, the right is not limited to the rules of law established by the "sovereign". Law is primarily expressed in its principles and norms contained in a unified, multi-layered and developing system of forms of national and international law implemented in the state [Ershov, V.V., 2018, pp. 20-107]. Thirdly, social relations, which need, inter alia, legal regulation, are constantly developing. As a result, if the norms of law are not developed in a timely manner by "human authorities" - the sovereign in positive law - then there is a gap only in the normative legal acts and not in law as a whole. In these cases, firstly, a regulatory gap can be overcome, for example, by courts applying existing principles or rules of law contained in other forms of national, and/ or international law, implemented in the state. Secondly, the gap has been eliminated by empowered lawmakers through the development of principles or rules of law, for example in other forms of national law.
However, from the standpoint of legal positivism, many scholars refer to the lack of legal norms in "legislation" as a gap in the law. So, V.V. Lazarev writes: a gap "...in law is the total or partial (incompleteness) absence of norms, the necessity of which is conditioned by the development of public relations and the needs for the practical solution of cases, the basic principles of Soviet legislation, norms in respect of the creation of which the will of workers is quite clearly expressed in the relevant state or public acts" [Lazarev, V.V., 2010, p. 51].
Traditionally, the works related to gaps in law highlight two ways to overcome them in the process of implementing law: the analogy of legislation and the analogy of law. Thus, V.I. Leushin, I think, also from the point of view of legal positivism, writes: "...with the analogy of law, the principles
perform the regulatory function directly and act as the sole legal basis for the law enforcement decision" [Perevalov, V.D., ed., 2005, p. 246].
I am convinced that, from the point of view of scientifically grounded concept of integrative legal understanding differentiating between right and wrong, there is no gap in law if there are principles of law. The gap in law is imaginary. Law, from the point of view of the scientifically grounded concept of integrative legal understanding, differentiating between law and illegality, is first of all expressed in principles and norms of law contained in the unified, multilevel and developing system of forms of national and international law realized in the state. Principles of law are primary and independent regulators of public relations in relation to the norms of law. Therefore, in my opinion, it is theoretically arguable to attribute the principles of law to "norms-principles" or to "legal grounds of an enforcement decision".
Discussion and Conclusion
The study appears to draw several final conclusions.
First: The concept of "difficult cases" is in theory controversial and in practice counterproductive.
Second: The so-called "difficult cases" in practice are primarily characterized, inter alia, by gaps in certain forms of national law, usually in legislation or, more precisely, in normative acts. Gaps in legislation can be overcome, for example, by courts of law by applying principles and rules of law contained in other forms of national and/or international law implemented in the state.
Third: Gaps in law are the absence of principles and norms of law in all forms of national and international law implemented in a state. Gaps in law can be addressed by law-makers in at least one form of national or international law by elaborating on, for example, principles or rules of law. In future, the gap in law becomes imaginary and can be overcome, for example, by the court through individual judicial regulation of disputed legal relations10.
Fourth: Law, in the context of the metamodern paradigm, from the position of a scientific discussion concept of integrative understanding that synthesizes right and wrong, is expressed in principles and norms of both right and wrong, including morality, contained in a heterogeneous system of both right and wrong forms.
Fifth: Law, in the context of the metamodern paradigm from the perspective of the concept of integrative legal understanding, which synthesizes only homogeneous social elements, is expressed primarily in the principles and norms of law contained in the unified, multilevel and developing system of forms of national and international law implemented in the state.
10 For more details see: [Ershov, V.V., 2018, pp.383-498].
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Information about the author / Информация об авторе:
Valentin V. Ershov, Rector of Russian State University of Justice (69 No-vocheryomushkinskaya St., Moscow, 117418, Russia), Dr. Sci. (Law), Professor, Honored Lawyer of the Russian Federation, Honored Worker of Science of the Russian Federation, Academician of Russian Academy of Natural Sciences [Ершов Валентин Валентинович, ректор ФГБОУВО «Российский государственный университет правосудия» (117418, Россия, г. Москва, ул. Новочерёмушкинская, д. 69), доктор юридических наук, профессор, заслуженный юрист Российской Федерации, заслуженный деятель науки Российской Федерации, академик Российской академии естественных наук]. E-mail: evv@rsuj.ru
