The World of Law in Philosophical Reflection

The Essence of Law

The essence of law, as perceived by philosophy, finds its concentrated expression in the definition of the concept of law, a task that proves to be quite challenging. Law is that reality which pertains to everyone and each individual. To live in society is to exist within the sphere of law, for the contemporary social world always emerges enveloped in a legal framework. Yet, is the mere fact of law's ubiquity sufficient for every inhabitant of the legal world to automatically answer questions regarding its essence? Here, we encounter a situation reminiscent of what Augustine of Hippo articulated concerning time: when no one asks me about it, I know what time is; if I were to explain it to someone who inquires—no, I do not know. Every person uses language, drinks water, and breathes air, yet not everyone can articulate what language is, the formula for water, or the structure of air. When we recall that natural things (such as water and air) do not depend on human origins and therefore can receive precise scientific answers about their essence, the origins of social phenomena become obscured in antiquity. Over time, they undergo remarkable transformations as a result of human activity, complicating the answers we seek. When one attempts to encompass ancient and contemporary, "law-like" and genuinely "legal" realities concerning the regulation of interpersonal relations and their organization under a single concept, nothing constructive arises from this endeavor. It may be apt to note, as the authoritative American legal theorist Lon Fuller suggests, that "in contemporary discourse, the term 'law' begins to be so closely associated with 'established law' that any other usage of the term will likely be branded as an abuse."

We should heed this observation. It directs us to avoid overly scrutinizing the modernization of ancient and bygone forms of societal organization, striving to reduce them into a singular concept alongside contemporary, developed law.

Throughout the 19th and 20th centuries, there was an avalanche of attempts to grasp the essence of law and express it succinctly within a conceptual framework. A comprehensive review of all literature on this matter is now beyond anyone's reach. Scholars have merely managed to identify typical directions of theoretical approaches, classifying them and learning to distinguish new twists and nuances of thought, which have become increasingly rare. For various reasons, the diversity of legal concepts is vast, and the acceptance of any particular one often depends on the strength of the author's arguments and our critical selection, favoring one concept over another. A typical difficulty arises with the very conceptual form of expressing the essence of law, as any definition is doomed to be limited and is inherently temporary. Nevertheless, we should not shy away from efforts to articulate the essence of phenomena, for there is no alternative path to theoretical comprehension of reality. Therefore, without claiming to provide an exhaustive overview, let us still turn our attention to the most prevalent viewpoints regarding the essence of law, aiming ultimately to arrive at a more or less acceptable understanding within the framework of our discourse.

We shall begin with preliminary reflections on such simple questions as: what social phenomena do we typically associate with law? Where is law created and where does it exist? The simplicity of these questions is deceptive; it evokes the simplicity of Socratic inquiries: an ordinary person, using terms like "courage," "beauty," "good," "justice," is convinced they understand their meanings, having learned to associate them with certain empirical facts from their experience. Yet, how ensnared does this self-assured ordinary person become when asked to establish the significance of these terms as concepts? Even without such ostentatious self-assurance, legal philosophers, reputable scholars, begin with similar simple questions, gradually progressing toward the construction of coherent knowledge about the essence of law. Thus, some of them assert that law is created in courts, where decisions are pronounced; others reduce law to established (or otherwise given) statutes that are merely applied in courts; and still others define law as the normative regulation of human behavior, where norms are either voluntarily accepted or imposed externally upon individuals. Some, in their search for evidence of the existence of law, turn to the fact that a person in society must temper their inherent freedom of will under external coercion, evolving from the primitive customs of a tribal community to a system of organized enforcement through specialized social institutions.

These preliminary reflections manifest in various philosophical and legal concepts. For instance, normativism reduces law to norms, interpreting the entire legal system as a hierarchy of subordinate norms. The renowned Austrian theorist and philosopher of law Hans Kelsen (1881-1973) posited that the legal system consists of a hierarchy of norms, where each subsequent norm derives from a higher norm. The initial, highest norm (which Kelsen refers to as the "basic norm") from which all legal norms are deduced does not emerge from any other norm but is accepted as a foundational assumption without questioning its basis. "A father," Kelsen illustrates, "commands his child to attend school. When the child asks why they must go to school, the answer may be: because the father commanded it, and children must obey their parents' commands. If the child then asks, 'Why must I obey my parents?' they might hear a reply along the lines of: because God commanded children to obey their parents, and God's commands should be obeyed. Should the child further inquire why they should heed God's commands—questioning the validity of this norm—they would hear a response indicating that such a norm should not be questioned; rather, it is to be accepted as a condition." From Kelsen's perspective, it does not matter which specific norm is accepted as foundational in any given society. What is crucial is that it provides a minimum of obedience and compliance from people; the legal system will take care of the rest, and therein lies the guarantee of its effectiveness, as all other norms rest upon the authority of the basic norm and are derived from it.

English philosopher Herbert Hart (1907-1992), in his legal theory, favors the concept of "rule" over the more nebulous notion of norm, as a rule possesses the property of procedurally outlining requirements for human actions. Hart distinguishes between two types of rules: primary and secondary. Primary rules demand compliance from individuals, requiring them to either perform or refrain from specific actions, regardless of their desires. Secondary rules (which are subordinate to primary rules) articulate the powers of certain groups of people or institutions to establish new primary rules, annul, or modify existing ones. It is important to note that, according to Hart, legal rules (in the form of statutes, orders, commands) differ from all other rules in their permanence or durability, and the source of their issuance is an official legitimate authority. In a society that has yet to implement secondary rules, certain defects in the structure of primary rules become glaringly apparent: 1) uncertainty of the rules, meaning that there are issues with a singular interpretation of content and with the scope of their application; 2) the static nature of the rules, indicating a lack of means for adapting rules to changing circumstances; 3) the ineffectiveness of dispersed social pressure in maintaining the rules. The introduction of secondary rules serves as a remedy against each of these indicated flaws and, according to Hart, represents a step from a pre-legal to a legal world. Against the defect of uncertainty, the "rule of recognition" is introduced, which specifies where to look for the recognition of primary norms. "Rules of change" serve as a means against statism, empowering someone to introduce new primary rules or to repeal old ones. The "rule of adjudication" addresses the defect of ineffectiveness by identifying the individuals responsible for rendering judgments and outlining the appropriate procedures. Hart asserted that if a society lacks secondary rules within its structure, it lacks a genuine legal system, existing instead only as an embryonic form of law.

The traditions of domestic philosophical and legal thought also abound with diverse approaches to the essence of law. The prominent Ukrainian thinker Bohdan Kistiakivsky (1868-1920) contended that law, as a complex phenomenon, can have numerous definitions within the sciences pertaining to it (sociological, psychological, normative, state-organizational), yet this does not preclude the search for a synthetic definition that integrates both the subjective and objective aspects of this intricate legal reality. Kistiakivsky pursued the understanding of law as the unity of legal norms and legal relations.

The Russian philosopher I. O. Ilyin (1883-1954), who devoted much of his work to the problems of law, adhered to a normative approach: “Law is a norm or a set of norms... By norm, I understand a judgment that establishes a certain order as proper.” Focusing later on the study of legal consciousness, Ilyin maintained his initial belief that “law, in its mature and developed form, is inherently normative in nature.”

The contemporary Russian philosopher Erich Soloviev also approaches the definition of law through a normative lens: “Law is a system of established or sanctioned mandatory norms by the state, which ensure the compatible civil-political existence of individuals based on personal freedom with minimal coercive violence.”

In this context, law is intertwined with the state, meaning that behavioral norms in the realm of law are established by the state, while the minimal coercive violence referred to is determined by the constitution, which aims to restrain any excessive repressive actions by the state, thereby safeguarding the legal status of individuals along with their fundamental freedoms.

Let us limit ourselves to the examples presented; they are sufficient to provide an understanding of the prevailing thoughts among prominent legal scholars and to form a foundation for some general conclusions.

In our view, B. Kistyakovsky was correct in stating that even within the natural sciences, various concepts exist for the same natural phenomenon, as each science examines it from a specific perspective. He illustrated this with a simple example involving water. Thus, physics formulates its concept of water as a liquid with a certain specific weight, boiling and freezing at specific temperatures; chemistry operates with a different concept of water as a substance composed of two chemical elements; geography considers water as the surface of oceans, seas, lakes, and rivers. It is important to remember that all these and other sciences produce their interpretations of the same natural phenomenon—water—albeit in its different states and from various angles. Moreover, if we add to this the hygienic aspect of water usage as a means of cleanliness, the medical perspective regarding the mineral content of water for treatment, or the aesthetic viewpoint concerning the beauty of landscapes featuring rivers, waterfalls, and so forth, we find numerous aspects of water. Of course, most disciplines do not reach the final logical operation of defining their concept of water, but they would have to do so upon request.

Using the aforementioned example as an analogy, one could argue that law, as a particular social reality, intersects with the lives of individuals and is the subject of investigation across many fields from various angles. How law appears to a legal scholar is one thing; how it is perceived by a sociologist is something entirely different; a cultural anthropologist describes legal relationships in a way distinct from the former two; a social psychologist would first focus on the experiences of “right” and “wrong,” “just” and “unjust” within the human psyche; and a person who sought recourse in the courts during the Middle Ages understood law in a manner different from that of Socrates in antiquity or from some of our contemporaries.

From this, a question arises: should a philosopher (whether a legal philosopher, a social philosopher, or another) and indeed any cultured, educated person confine their gaze solely to legal scholarship in order to answer the question, “What is law?” Probably not, as concepts of “law” and “right” existed long before the first legal scholar was born. Thus, philosophy would fulfill its role if it were able to propose some synthetic (culturally comprehensive) concept of law. Unfortunately, however, long-standing discussions regarding the essence of law persist even within philosophy itself.

While ultimately leaving our initial question open, we propose, taking into account the aforementioned approaches, the following definition of law: law is a form of conscious organization of social life through the issuance by a legitimate and singular authority for the entire society (the state) of norms and prescripts of an imperative nature, their systematic enforcement by that authority, and the monitoring of compliance by all members of society without exception.