Does the Theory of Law Exist?
According to Aristotle, every object is distinguished by such properties as heaviness and lightness. A greater lightness pulls the object upward while a greater heaviness - downward. The heaviness/lightness ratio depends on the quantitative ratio of the four elements constituting every single object: earth, water, air and fire. Earth is absolutely heavy, fire is absolutely light.
That was his “theory of gravity”. Perhaps, it could explain certain things to a non-inquisitive mind but its practical use was negligible. So far there has never been any possibility to measure the ratio of the “elements” in a specific object and thus compare it with any other. Building on such a theory one would have never discovered Archimedes’ principle, which became available to the mankind already in the following century.
In his studies Archimedes indirectly relied on the concept of density, or specific gravity, of objects and found a way to compare them in terms of this value by means of weighing and calculating their volumes. His theory is still successfully used in designing, constructing and operating boats, aircraft carriers, bathyscaphs and air balloons. We say that it is a good theory, it is practical in that it provides correct indications as to how the vessels and air balloons should be designed.
If we try to neglect this theory or do things contrary to it, the fruit of our labor simply will neither sail nor fly.
What is an air crash? It is the result of an attempt to fly an aircraft whose the design, for some reasons, does not fit the theory of flying, “violates” the laws of flying. The Titanic sank because people either had poor knowledge of or neglected the laws of strength of steel and ice and their interaction at high speed. A house built with no regard to the theory of strength of materials (at least intuitive, implicit, empirical) is bound to collapse.
That is the way it is because the theories relating to objects, matter and (to some extent) irrational creatures are indisputable, the subjects within their terms of reference simply can not be designed differently nor can they behave otherwise than is prescribed to them (by God, Nature, instinct…). And throughout the entire history of mankind the laws of nature have been absolute and unalterable. It is for this very reason that a human mind is able to understand those laws and those theories can exist.
And what about law and its theory?
Large bookstores may offer dozens of books entitled “The Theory of the State and Law”, the ones most recently published. The first thing that strikes anyone reading such a book is the lack of consistency and continuity of the legal norms in space and time. Different books on the subject present an endless variety of legal norms (laws) which are in use in different epochs and nations. Changes in them, sometimes dramatic, often happen during the lifetime of one generation (to which we are all witnesses).
So what? Human societies - the evident subject of the norms of law - exist, states remain stable throughout centuries. This is how the matters stand despite the fact that the aforementioned books are brimming with examples of conscious or unconscious violations of the norms of law by people. These laws, therefore, are not as indisputable and absolute as the laws of nature? Then they are not at all laws but inventions of man. Hence, there can be no such thing as a theory of law.
It is not incidental that the above-mentioned books are entitled Theories of the State and Law. Explicitly or implicitly, almost all of them view the law as derived from the state: the law is what the state establishes. And states are created by people. Therefore, the norms of law are invented by people.
A discouraging though seemingly inevitable conclusion…
But is it really so inevitable?
“Where is the book which would be capable of arousing legal awareness of our intelligentsia?” asked B. A. Kistyakovsky in the “Vekhi” in the early 20th century. “Where is our “Spirit of the Laws”, our “Social contract”?
The whole spirit of Kistyakov’s article suggests that he views those questions as rhetorical. However, there exist quite concrete answers to them. And there are books that provide these answers. These are “our books”: “The Natural Law” by Alexander P. Kunitsyn and “The Encyclopaedia of Law” by Eugeny N. Trubetskoi.
These are “our” books only because they were written in Russia and in Russian. But unfortunately, they never became “ours” in the sense that their ideas never grew to dominate the Russian minds either in the 19th or in the 20th centuries.
Written almost 200 years ago, A. Kunitsyn’s book was and, perhaps, still remains the best book on law: law as it should be and why it should be the way it is. However, it would be unfair to say that there was no understanding of the importance of this task at all. According to D.S. Mille, “It is necessary that the law should oblige people to implement the established rules of conduct. But what these rules should be is the most important question for people, and meanwhile, with very few exceptions, this remains one of the issues where the least progress has been achieved”.
Over 150 years elapsed since these words were written and, maybe, today the mankind has succeeded in figuring out what rules these should be? Unfortunately, no. And a breakthrough here is possible only on the basis of strong theory.
However, so far science has not worked out the ultimate answer to the questions: what is a theoretical basis, what is a theory? I propose the following definition of a theory:
A theory is a system of notions, postulated statements as well as the conclusions strictly resulting from them.
A. P. Kunitsyn laid down a theoretical basis of almost all necessary areas of the theory of law. To bring his endeavors to full fruition he still needed to have made the final step - to devise a linchpin that would hold the whole theoretical structure together thus ensuring its ultimate harmony.
It was solely the correct understanding and, therefore, definition of the notion of “law” that could serve as such a linchpin. In other words, this requires relating law as a specific notion to something still more fundamental - a generic notion. Many scholars tried many different things to serve as such a generic notion: will, rule, interest, order, etc. However, none ever became the linchpin which would hold together all the fundamentals, thus creating a theory of law. It was only E. N. Trubetskoi who succeeded in forging this linchpin.
Trubetskoi used the notion of “external freedom” as the linchpin. Not freedom in general because of its vagueness. Not inner freedom - the freedom of will so unsuccessfully applied by Hegel - but external freedom as a possibility for man to act in the society of his like. External freedom exercised within the “rules of conduct” is the content of law.
Such an approach to law as external freedom subject to certain rules proves very productive. It immediately clarifies what these rules should be about - the boundaries of external freedom. Emerging here is also the central question of the theory of law: what principles should be followed (or goal achieved) while formulating these boundaries. In other words, what the rules of formulating laws should be like. It is these principles - “the rules of the rules” - that constitute the content of the theory of law. The theory should be practical, i.e., it should tell us what our law, our legal norms, should be like.
The principles of restricted external freedom can not have the same absolute quality as the laws of nature. They must be determined by what we want to achieve while formulating rules of conduct, legal norms. By our goals. And our goals can be different.
In order to formulate a goal correctly one can, and should, give prior consideration to the legal systems which exist today, existed in the past or could potentially exist as well as to the ideas behind them, so that afterwards relying on the maximum available information to be able to develop one’s own comprehensive and non-contradictory idea of what should be.
With this end in mind, the existing notions of what should be can and must be streamlined and structured.
Such structured notions of what should be are made of political ideas, which can be grouped, for example, around three axes forming the “political space”. Provided the structuring is done correctly, each local domain of the political space should be unique in a sense that it should be impossible to formulate the same set of axioms of the theory of what should be for any different domains of political space. Political space is the very space of the real where we should select a specific domain and apply our theory of what should be to it.
Legal systems applied to different domains of political space can not be described in the framework of a single theory of law. There can not be a single theory of law. Each domain of political space requires its own individual theory of law.
The present article attempts the development of an alternative of such a theory of law for a specific domain of political space described by such key terms as liberalism, equal rights, democracy.
The main entity which purports to be “real” in the theory of law is Man himself, his essence in the legal aspect, those of his qualities that are intrinsic to all people and are essential to the theory of law - since without man as its subject there can be no theory of law.
Our task is to identify, among all the qualities of man, those indispensable ones without which we will not be able to create a theory of law.
The most important characteristic is consciousness: only taken together, the body and the consciousness of man make up what we call man.
However, the very presence of consciousness does not yet bespeak of the extent of estrangement and independence of man. The assumption that each spiritual center is linked with some other, perhaps, global center can not be either proved or refuted. The debate about the presence or absence of freedom of will of an individual has been going on for many centuries. And we can not avoid it. Unless the question of whether an individual has freedom of will is answered, the theory of law can not be created. Moreover, it can not be created without a positive answer to this question.
Those who undertook some activity in the field of law and do not wish to a priori agree that this activity is meaningless must simply admit that an individual does have freedom of will, otherwise, they will not be able to lay any claims to an individual.
Thus, it is absolutely necessary for us to reflect this important characteristic that singles man out of the rest of the world in the very first
Every individual possesses inner freedom (or freedom of will), i.e., freedom to independently choose what to want.
We think that in general terms we can postulate at least one such want which is truly characteristic of all people.
Every individual wants to live a good life.
This means that every individual wants to live in the first place. However, the prerogative of his consciousness, intelligence is the axiom’s second component, namely, goodness.
Building on the above-mentioned as well as on Axiom 1 (every individual possesses inner freedom) we can identify the location of the center which forms the “good - not good” opposition.
Only the individual himself can decide what is good for him.
This is the only conclusion that can be made from our previous discussion. An alternative conclusion can be the following thesis: understanding of what is good and what is not good comes to the individual from the outside. But this would mean that the individual is not able to independently choose what to want (and this is at odds with our first axiom), and would mean that the individual does not possess inner freedom. Logic does not allow for a symbiosis of Axiom 1 and this thesis.
What is good for him the individual decides himself but in achieving this good he always acts in the society of his like.
It is enough to just look around to see that people do not live apart from one another. It is enough to look back into the history to understand that it has always been so. It is enough to give these facts a thought to realize that this is not incidental. These evident facts can be brought together in
People are doomed to live together or, in other words, -
Living together is the only possible form of people’s existence.
Thus, the society is a priori given to us. It does not depend on anyone’s will. People unite to form societies not because they want it.
They are already united.
This factor imposes considerable restrictions on people’s behavior, their external freedom whose turn has now come to be defined.
External freedom is freedom (ability, possibility) to act in the society in this or that way in accordance with one’s inner freedom pursuing this or that goal.
It is evident that external freedoms of individuals inevitably collide in the process of seeking a good life. Society must establish the boundaries of such aspirations for its members.
In further developing the theory we simply ought to propose a principle on the basis of which we could establish such boundaries. This important principle is
All people have equal right to external freedom.
What is stated in Axiom 5 is, perhaps, the most important thing in our axiomatic system. It is this statement that constitutes the rationale for the natural rights of man. In order to confirm the fact that an individual possesses those rights there is no need to argue that “this is the nature of things”, that all people are “created in one’s own similitude”, there is no need for any other additional factor.
However, the external freedom of any individual can not be unlimited at least because every individual lives among other people. Hence
External freedom of individuals should be restricted.
Obviously, such restriction should not be imposed arbitrarily. In order to minimize the possible danger entailed by such a limitation it is necessary to work out a certain common principle according to which external freedom can be lawfully restricted.
To avoid contradicting the above-stated axioms and consequences we can adopt the following principle legitimizing the restriction of the individual’s external freedom.
The external freedom of an individual can be restricted only by the demand to secure the external freedom of other individuals.
In order to correctly understand this Axiom it is important to feel its anisotropic nature. Apart from the demand to restrict the freedom of another individual, no other grounds for restricting anyone’s freedom are accepted. However, this does not mean that any demand to secure the external freedom of an individual is an absolute and sufficient basis for restricting the external freedom of another individual. The presence of this condition just gives us an opportunity to address the issue of restricting the external freedom of an individual, and in order to find a solution it is necessary to consider other reasons, in particular, those which are part of other axioms and consequences. If there is no such ground, the issue of restricting anyone’s external freedom simply can not be considered. Thus, Axiom 7 provides only the necessary but not sufficient condition for restricting the external freedom of an individual.
Every individual understands that his external freedom is not unlimited. Every individual has a certain idea of where the boundary of his external freedom lies as established by the society he lives in. And nevertheless, we know how often people transcend the boundaries of their external freedom, cross that fine line they are aware of. Why does this happen? What should our attitude to such facts be?
Our entire life experience shows that in such phenomena there is nothing super- or unnatural, and this brings us to formulate yet another axiom.
People are prone to violating the normative boundaries of external freedom of other people and their own.
The fact that we consider the disposition described in Axiom 8 a common phenomenon does not mean that we agree to make up with it, let alone encourage it. Moreover, the task of any legal system is, ideally, to make the manifestation of such disposition impossible or, at least, minimize the possibility of it. And this is something that only Law can provide for.
Throughout the centuries the science of law together with the mankind sought to understand what “law” is. However, even today, in the 21st century, there exists no generally accepted opinion on that. No theory of law can avoid answering this question.
The most fundamental and theoretically grounded is, in our opinion, the definition of “law” developed at the turn of the 19th century by a prominent Russian expert in law Prince E. N. Trubetskoi.
The essence of law has two major manifestations: on the one hand, it grants an individual a certain measure of freedom, on the other hand, it restricts this measure of freedom by introducing a number of rules, both being implemented by means of norms.
Law is external freedom provided for and restricted by a norm.
The term “provided” in Definition 7 also requires to be specified.
To provide external freedom means to declare it and secure the possibility of its implementation.
In other words, a set of norms mentioned in the Definition of law should effectively prevent the violation of the rights of one individual by the actions of another.
Now, having clarified all that, we can formulate the principle of providing external freedom -
Everyone should be provided with maximum external freedom compatible with the similar maximum of freedom of any other individual.
Axiom 10 taken together with Axioms 5 and 7 constitutes the statement of the ideal that gives rise to the natural law and to which the current law should aspire during its historical evolution.
If we consider a fairly long historical period, we will have to admit that the current law is developing in this very direction, although not in a linear fashion but with deviations, huge zigzags, and nevertheless, in the direction of providing increasingly large measure of external freedom to the increasingly growing number of people.
Derived form the definition of law is the following requirement:
Any action, which is not stipulated by any norm and aimed at restricting anyone’s external freedom, is unacceptable.
This and other requirements described in the previous definitions, axioms and consequences should find their addressee. The one who has to meet them. Such addressee exists and it is called the State.
For people the only way of living is a society. A way, including the way of organizing people’s life, requires an instrument (a tool, a mechanism, a device…). Such instrument of ensuring people’s co-existence is a state. A state viewed not as a synonym of the term “country”, i.e., as a combination of the territory, power and population but as an instrument using which the society organizes co-existence of its constituent components - people.
A state is an instrument using which the society organizes co-existence of its constituent components - people, i.e., declares and ensures their elements of external freedom.
The state is an instrument of the society. But not simply an instrument which one can either use or put away. The state is such an instrument without which the society can not exist. Viewed form a historical perspective, the state and the society emerged at the same time. And they will cease to exist at the same time. The idea of the withering away state is based on the wrong understanding of its core. The absolute, unconditional need in the existence of the state is rooted in the very human nature, described by us in Axioms 4 and 8 which say that people are doomed to live together and at the same time are prone to transcend the boundaries of their external freedom. As long as man continues to be a public creature inclined to transcend the boundaries of his external freedom it will be impossible to do without the state.
I like such an idealized picture of how man, society, state emerged: the moment when two of our pre-historic ancestors who had grabbed one and the same banana at the same time decided not to win it by force but appealed to a third party asking to resolve their problem or, even better, divided it in some way which they both considered fair (i.e. through reaching a consensus) they became human beings, created the first human society and invented the instrument of their co-existence - a state.
Since those pre-historic times both public life and the functions of the state have evolved to become much more complicated, but the main thing - the one which makes a state a state - has not changed. There still remain only two ways of organizing co-existence. The first one is to empower a concrete person or body - the chief, the council of the elders, the oracle, the monarch, the parliament, the president, the head of the housing authority - to resolve problems. The second one is to resolve problems by oneself through negotiating. Negotiating until all the interested parties reach an agreement or until the majority of them reach an agreement. If we supplement this structure with a certain element made responsible for ensuring the implementation of the decisions taken by the first or the second method, we will have a scheme, a sketch of any state.
Resulting from the definition of the state is that
The only useful function of the state is the organization of people’s co-existence.
The widespread and actively promoted viewpoint goes: it is the state that grants an individual his rights to the extent that it - the state - considers necessary. According to the given axiomatic system, the individual’s rights emerge not from the state but from the very nature of things, from equality, from evident truth - Axiom 5, Axiom 7 and Axiom 10.
The situation with the state power is exactly the opposite. The need in its power also results from Axiom 10 which speaks about the measure of an individual’s freedom as well as from the term “providing” used in it and further clarified in Definition 17.
Attention! It is only these bits of external freedom consciously under-given to people in the process of distribution of the entire external freedom among them that the power of the state is made of.
In other words, people consciously (or unconsciously) surrender a part of their external freedom to the state and it is these donations and only these ones that the state power is made of.
Resulting from this discussion with all the evidence is
The only source of political power are the people populating a given territory.
No less evident is
Every entity of political power is prone to transcend the boundaries of the external freedom established for him by law.
Having realized this truth, we should prepare ourselves for its manifestations by reinforcing the boundaries of freedom of the entities of political power, by structuring those entities and formulating the rules of their functioning in such a way that would make it maximally difficult for that inclination to manifest itself, i.e., to help them oppose that inclination themselves.
And in order to achieve that one should fulfill
Political power should be maximally dispersed.
There exist at least two ways of dispersing political power.
Number 1 - division on the functional basis.
Number 2 - division on the level basis.
The governing of the state is an element of external freedom and, according to our Axiom 5, all people have equal rights to external freedom.
This allows us to define democracy.
Democracy is a polity where all the citizens have a real possibility to use their equal rights to govern the state.
Yes, democracy is just a form which the instrument - the state - takes. Like a hammer or an axe. It will never occur to anyone to say that an axe is a bad instrument only because it can sever a person’s head! And, moreover, using this as an argument, to demand prohibiting its use. However, it deems absolutely natural to prohibit severing people’s heads with it. The same is true for democracy:
The possibility for the majority to take arbitrary decisions should be limited - the decisions that are not aimed at ensuring the possibility of implementing the rights that are equal to other people’s rights are unacceptable.
And, lastly, a few words about the constitutional state (Rechtsstaat).
The next genus for the notion of the “constitutional state” is obviously the notion of “the state in general” which includes all the conceivable alternatives of the states. In order to distinguish the constitutional state from all other states we should consider the definition of law - law is external freedom provided for and restricted by a norm. Evidently, in any state external freedom is provided for and restricted in some way, i.e., if perceived not idiomatically but literally, every state is constitutional. Therefore, it is exactly here, in the sphere of providing and restricting external freedom, that we should find a feature on the basis of which we can distinguish the “constitutional state” from any other. Having concluded for ourselves that the “constitutional state” is something undeniably positive and having recalled the ideal described by us in Axiom 10, to which the current law should aspire in its historical evolution, we arrive at the
Definition of the constitutional state:
A constitutional state is a state the legal system of which provides each citizen with maximum external freedom compatible with the similar maximum of external freedom of every other citizen.
Thus, “constitutional state” is as ideal a notion as democracy. And as well as democracy it has not so far been implemented in practice in any place. The degree of proximity to this ideal image varies from country to country.
The axiomatic system consists of 83 elements: 23 axioms, 22 consequences and 37 definitions. In this brief introduction I was able to discuss only one quarter of them and without any fundamental explanation and rationale. However, all of them constitute a system.
I hope that I have succeeded in providing at least a very general idea of what the axiomatic system is, which one can extend by reading a book entitled “Axiomatic basis of the theory of law”.
Providing external freedom: an illustration.
The present text contains a lot of references to the boundaries of external freedom. The following graph illustrates the establishment of the boundaries of external freedom.
The graph was created on the basis of:
All people have equal rights to external freedom.
According to this axiom, the figures symbolizing external freedoms of people (central point 1) must be invariably equal in size and shape. Hexagonal shape was a random choice. An equilateral triangle or a square could have been equally chosen. At the same time, Axiom 5 tells us nothing about the absolute size of these figures. It allows depicting external freedoms of individuals by means of equal but very small figures scattered all over the common field of external freedom. Axiom 9 eliminates this generality.
Everyone should be provided with maximum external freedom compatible with the similar maximum of freedom of any other individual.
Now the whole of the common field of external freedom can be divided among all the people (line 2). However, such distribution of external freedom is not viable since it does not leave any space for either a lawful self-protection or for any actions of the state. To finalize the boundary we need to use
To provide external freedom means to declare it and secure the possibility of its implementation.
In graphical terms securing the possibility of implementation of external freedom means moving away from line 2 to the inside the external freedom of an individual for an equal distance (line 3), for the distance of that “bit” which we mentioned while formulating Definition 17. It is in this area between the lines 3 that the elements of external freedom of the state are located and, since there are no other place for it to be located, it becomes evident that the state simply has no other freedom than the one it receives from its citizens.
The adduced graph also allows to illustrate the difference between equal rights and equality. The areas formed by lines 3 symbolize people’s external freedom, i.e., their possibility (ability) to act, in accordance with their choice, this way or another, pursuing this or that goal. In other words, every individual can (has a right to) move to be in any point in the area of his external freedom. In any but not all. No one can use the entire scope of his external freedom. For example, even during the entire lifetime one can not engage himself in all the possible kinds of activities, visit all the inhabited localities, let alone find himself in all of them at the same time; not all people during their lifetime implement their right of relief - at least because some people just will not need it, etc. The measure of the implemented external freedom - the area restricted by line 4 - depends entirely on the individual himself, his wishes and possibilities. Thus, the principle of equality - Axioms 5 and 9 - does not deprive people of their identity and make them become a mere cog in the machine. On the contrary, it is the equality principle that allows everyone to make the most of his opportunities, if only he does not violate the boundaries of his own, let alone other people’s, external freedom.