The understanding of law suggested by Nersesiants deserves special attention because it is the most original and precise one in comparison with that set out in doctrinal writings of the 1980-90s.
In a number of his works, Nersesiants substantiated two definitions that, in his view, are mutually reinforcing. The first is a definition of jus as an «objectively conditioned requirement of the justness of the general measure (forms, norms) of freedom and equality having a socio-class character»; the second is the definition of lex (jus in the form of lex) as an «official (State-power expressing State will of the dominant class of a formally-determined and generally binding normative) expression and establishment of jus endowed with legal force».
Nersesiants acknowledged that jus arises before its consolidation in lex; that lex merely endows jus with legal force; that the distinctions between the objective process of forming jus and the conscious-volitional process of its official acknowledgement lead to contradictions between jus and lex. He used formal equality to prove that jus recognized formal equality, thanks to which it becomes an essential form of being. Jus thereby itself regulates the distinctions between people on equal grounds and by an equal measure.
Nersesiants attempts to combine two different approaches: one from the standpoint of natural law, and the second from the standpoint of positivist law-comprehension, the second definition materially augmenting, developing, and clarifying the first and in their unity they reflect the most essential in the general concept of law as an historical changing, objectively conditioned, determined socio-class relations, just, general measure of freedom and equality obtained through the official expression of generally-binding force.
Nersesiants ultimately renounced the class approach, clarifying and defining jus as a generally-binding form of equality, freedom, and justness.
For the purposes of our study the ideas of Nersesiants are important with respect to equality, especially his conclusion that the manifestation of equality has specific historical expression and that equality does not destroy and may not destroy the actual differences between different individuals.
We also note that the views on jus similar to those of Nersesiants (with regard to an understanding of jus as a measure of freedom and equality) were rather widely held in prerevolutionary Russia. The religious thinker and theoretician of law, V. Solovev, noted that the concept of the individual, freedom, and equality comprise the essence of so-called natural law. The individual, because he or she who is not an individual cannot be a subject of law. Freedom is a characteristic indicator of the individual who is capable of absolute resistance, both internal and original, that cannot be eliminated, not as a choice between two antitheses (libertum arbitrium indifferentiae), but as a complete certainty and constant feature of any substance. Thus, freedom — as a requirement of autonomy. Finally, equality — as a need to recognize for others the same freedom in principle.
Solovev represented the interaction of these elements as follows: «But freedom, in and of itself, is the property of a person taken individually that does not form law; because here freedom is manifested only externally, as the actual appurtenance of the person coinciding with this power. Left to myself, I freely act within the limits of my power: there can be no mention of law. There is also no law when my action collides with the free action of another because the matter is resolved by the rebalancing of power. But if I as a manifestation of my freedom limit or condition by recognition for another of the same freedom in principle or I acknowledge this for the same person as I myself, by such recognition I make my freedom obligatory for him and transform this into my right. This relation has a universal character by virtue of the universal significance of the individual: every man is a person and, consequently, freedom in principle must be recognized for all identically. Thus, my freedom, as a right and not force depends directly upon recognition of an equal right for all others. Hence we receive the basic definition of a right: a right is freedom conditioned by equality. In this definition of a right, the individualistic principle of freedom is inextricably linked by society with the principle of equality, and, one may say, that a right is nothing more than the synthesis of freedom and equality. The concepts of the individual, freedom, and equality comprise the essence of so-called natural law».
It follows that «freedom as the basis of any human existence and equality as the necessary form of any social being in their combination creates human society as a lawful order. These are affirmed by something general and identical, because the rights of all are equally binding for everyone and the right of each, for all. But it is evident that this simple equality may relate only to that which is identical, to that which all have in common. Common for all subjects of law is the fact that their essence as a person is identical, that is, autonomous or free essences. Thus, proceeding from their equality as a necessary form of right, we come to freedom as a necessary sub-stratum thereof».
It is interesting that a similar understanding of a right resounded in the legal doctrines of Kant. Personal freedom according to Kant, which he considered formally, is arbitrariness or the capacity of an individual to act at his discretion insofar as he has the authority to do so. The possibility of individual persons coming into conflict lies therein. Therefore, the Lex of freedom is that the arbitrariness of one person is limited by the arbitrariness of another person and that no one violates the freedom of another. That is, the personal freedom of any individual is limited by certain boundaries and establishes and fills a certain sphere, which also is a right.
Solovev called this the «rational essence of a right which is an ideal condition of all positive legal relations, in them and through them». Under this approach, the freedom of a right, as Rousseau indicated, is a form of the realization of the common will. This is the ability of free individuals to freely interact with other people, enter into legal relations with them with a view to the achievement of their interests and requirements, individuals who opposed such individuals.
The definition of law on the basis of equality and freedom is cognitive-rationalistic because it orientates towards the elucidation of the content of law as a phenomenon belonging to the thinking individual which interacts with such individuals on the basis of equality. This «libertarian» approach is important not only from the standpoint of defining the essence, but also the necessity of strengthening the humanitarian aspect of law, overcoming the perception thereof as punitive (which is characteristic of totalitarian systems), reorientating the prohibitions thereof towards permissive and dispositive norms. The ideas of equality and freedom relating to many classes were recognized and reflected in constitutions and laws; these classes underwent a lengthy struggle for their rights. Ideas of equality and freedom were on the banners of virtually all revolutions.
However, freedom and equality are reflected in that understanding of law only as an abstract idea; they retain their importance as indicia, which are suitable for a general definition of a right only in the abstract sense. This occurred because freedom and equality, unlike concrete relations, have a general and not a concretized expression. Outside these limits, both freedom and equality acquire a distinction depending upon the real conditions of their exercise. Moreover, the use of the concept of an abstract freedom in the definition of law obliges an explanation of the need for legal differentiation between individual subjects of law and a quest for optimal criteria to establish the legal features of the legal regulation of particular relations (to be considered in detail below).
As regards justness or equity, this has a common basis with law, but is not identical with it. Nersesiants believed that social justness is the same as legal justness, that is, a legal approach, compliance with the legal principle of equality, and not some special non-legal justness; that is just which is consistent with jus, and to act justly means to act according to jus, in accordance with its universal scale and measures or norms of freedom equal for all.
Justness is an evaluative means, a moral criterion, with whose assistance we establish the admissibility or inadmissibility of the existence of particular behests of authorities. If we come to the view that law finds its legitimation through its recognition by society as the ought, then the standard of social justness finds its reflection in jus; justness also is an evaluative criterion of norms legitimized by society, will justify or subject them to doubt, and hence affirm their operation or adjust these norms in accordance with new ideals of justness.
That is why these concepts have their greatest sense when distinguishing them. Social justness is filled with own social content. The realization thereof is effectuated with the assistance of various forms and methods, although legal forms and means are rather effective. If justness is a correct, true, and justified social distinction of people in social relations, the law itself, perceiving them as fundamental criteria, is transformed into a means for the realization of justness.
To underscore this thought, we turn to Hart, who says that «… law is best understood as a “branch” of morality or justice and that its congruence with the principles of morality or justice rather than its incorporation or orders and threats is of its “essence”. This is the doctrine», he continues, «characteristic not only of scholastic theories of natural law but of some contemporary legal theory which is critical of the legal “positivism” inherited from Austin. Yet here again theories that make this close assimilation of law to morality seem, in the end, often to confuse one kind of obligatory conduct with another, and to leave insufficient room for differences in kind between legal and moral rules and for divergences in their requirements».
It should be pointed out that a number of legal norms have a limited or unlimited ethical evaluation because of the regulation of organizational, technical, or technological processes where principles of morality or ethics do not operate, but rather principles of rationality or of a technological nature. This does not mean that the respective spheres do not ultimately combine with morality or ethics because where man operates, ethics is always present. We refer only to the fact that the ethical aspect of particular relations is inadequately represented in specific legal relations (for example, requirements for the behavior of people in the sphere of production, technological norms which service the application of other norms in the legal system — definitions, presumptions, procedural norms, and others).