The cognitive-rationalist definition mentioned above encompassed only one aspect of the essence of law. The essence of law is revealed in this definition through the rational nature of man, his coexistence in society with other free and equal individuals. But the essence of law is manifest not only from the aspect of it as rational, which is static. It also is manifest in the purposes and designation of law, its orientation towards ordering social relations, that is, in a dynamic, regulatory aspect.
Law acts in society not only as a «phenomenon in and of itself», but as an external phenomenon, a powerful regulatory means, which obliged the individual to act in accordance with its requirements.
In this aspect, law is a norm, a rule, a yardstick, a measure of how it is essential for the individual to act in relations with other people. Law provides the measure of this behavior for the individual person which appears in the sphere of the respective relations and becomes an equal measure for all other persons who are subjected to the operation of this norm. Thus, a person wishing to transfer property by way of inheritance to a stranger is obliged to draw up a will in accordance with the requirements of civil law. This requirement is a norm, a measure, for this person under these circumstances. Simultaneously, this norm, under equal circumstances, will be a general, equal measure for other persons who intend to transfer their property by way of inheritance. On what does this measure depend? Under a regulatory definition of law as a measure or norm of the ought, or the necessary, moral and ethical criteria play an especially important role — freedom, equality, justness. However, here they act not as elements of the essence of law which they were in the cognitive-rationalist definition, but as external moral and ethical criteria defining the measure of law itself, the power of authoritative impact on the subjects of law, on the content of law in accordance with moral and ethical conceptions achieved in society. It is logical to distinguish in law not only individual elements of the moral and technical superstructure, the spiritual sphere, but also everything existing. The constituent elements of the moral and ethical sphere, such as goodness, mercy, respect for the dignity of the individual, and so on, must be taken into account. They are exceedingly material for an understanding of the content of legal regulation, serve as justification or reject it, become a yardstick for law itself, that is, in and of themselves, not as absolute characteristics of law, but as moral value criteria of law.
We shall turn to this question in greater detail — beginning with equality.
It seems that the problem of formal equality is simpler, the principle of which in most generalized form is regulated by the 1996 Constitution of Ukraine (Article 24) as equality before the law, that is, any privileges or limitations by indicia of race, color of skin, political, religious, and other convictions, sex, ethnic or social origin, property status, place of residence, language, and other indicia, are inadmissible.
The 1996 Constitution of Ukraine, for example, guarantees the independence and inviolability of judges and prohibits influence on judges by any means (Article 126). From the standpoint of formal equality, every subject of law (citizen or official, namely, the President, Prime Minister, or head of State administration, agencies of State power, and so on) should adhere to these prescriptions. This, with respect to judges: every judge is guaranteed such independence and inviolability.
The law has regulated distinctions (sex, office, and so on) which exist between people, between subjects of law in general, on equal grounds. This became an equal yardstick for behavior in certain identical instances.
Such equality is formal equality, equality before the law, equality before its prohi-bitions, equality in punishment in the event of a violation of law. Here formal equality requires the exercise of a right without exceptions, notwithstanding the individual. The general operation of a law and the impossibility of removing anyone from the operation of a law also comprise the content of formal equality. All subjects of law to an equal degree are endowed with rights and freedoms, and everyone is prohibited from acting in the interests of or against an individual and in a privileged manner to remove him from the group of other equal subjects.
However, another type of legal equality is possible. Among all subjects, if we take as an example responsibility for the commission of assault with intent to rob, groups are singled out in legislation by age. Under otherwise equal circumstances, a minor will be punished more lightly than a person who has reached majority. Differentiated responsibility may apply if the victim of the attack is a male in one instance and a pregnant woman in another. We observe that both the 1996 Constitution and the law regulate differently questions of the legal status of hired workers — State employees, judges, teachers, and so on. Even within a single category various approaches are seen to legal regulation. Judges of general courts and judges of the Constitutional Court of Ukraine have a different legal age limit for appointment to office. What criterion operates here?
We refer in these instances to so-called substantive equality, which the 1996 Constitution of Ukraine regards as equality (absolute equality here is impossible because we refer not to equality, but to identity).1 Here we observe certain complications in determining common approaches to the norming of social relations. The content of equality provides for equal treatment of people in all relations and does not allow unequal relations under equal circumstances. If, assume, we refer to pensioners, one cannot single out some small category of citizens and regulate pension relations completely differently. At the same time, absolute coincidence of all indicia (temporal, territorial, and so on) is logically excluded because this would not be equality, but identity. That is why that when we refer to differences, one should abstract from petty distinctions and single out the essential ones. The existence of such essential distinctions is an important basis for the different regulation of social relations by legislation, and the absence thereof, on the contrary, may be a basis for rejecting the different regulation of these relations. Thus, the decisive stage in defining the concept of equality is the establishment of material indicia. They are consolidated in the 1996 Constitution. The Constitution provides a basis for equating in rights, say, men and women in a certain relation — political and social — and departs from this principle of equality when determining the age for the appointment or election of certain persons.
At the same time, the Constitution establishes only general principles of equality which should be clarified by parliament in legislation. We turn again to a specific example. The 1996 Constitution of Ukraine (Article 40) provides that all have the right to send individual or collective recourses or personally to have recourse to agencies of State power and agencies of local self-government and officials of these agencies, who are obliged to consider the recourse and to give a substantiated reply within the period provided by a law. That is, this is a norm grants to all this possibility and with respect to this right determined a single grounds and a single scale. But only the general principle of the right to written recourses is determined in Article 40. The Law of Ukraine «On Recourses of Citizens» clarifies both the subjects of this right and the content of the legal relations, grounds for recourse, and also the framework of this right. In accordance with this Law (Article 1), the right to collective recourses is limited for military servicemen (they may not collectively have recourse with regard to questions of their service activity). A special procedure for the consideration thereof is laid down for applications and recourses of certain categories of citizens (Articles 11 and 12). The peculiarities of the realization of this right may apply to foreigners. But even this detail does not eliminate the negative influence of this peculiarity of the right to legal relations which are regulated, and therefore to take into account all the peculiarities of subjects of law and the diversity of life situations, the law immanently contains a selection of necessary legal mechanisms. The duty exists, say, of a court and other law enforcement and law-application agencies to take into account when considering cases the degree of fault of the individual, and his material position, age, and other important circumstances. The law thereby comes closer to the individual and more justly regulated the respective relations.
We offer a specific example. On 19 November 1997, two groups of people’s deputies turned to the Constitutional Court of Ukraine to deem unconstitutional individual provisions of and the Law of Ukraine as a whole «On the Elections of People’s Deputies of Ukraine» adopted on 24 September 1997. It was asserted in the submissions that this Law, which introduced mixed (proportional-majority) system of elections, was contrary to Article 76 of the 1996 Constitution of Ukraine on equal suffrage, and also Article 24 of the Constitution on the equality of the constitutional rights of citizens. In addition to other aspects, the subjects of the constitutional submission, seeing a violation of the principle of the equality of rights and freedoms of citizens as a whole and the rights of suffrage in particular (Articles 24, 38, and 76, Constitution), appeals the electoral system itself, and also the establishment of a 4 % electoral quota, the nomination of candidacies for deputy by a multi-mandate electoral district through political parties, and electoral blocks of parties (citizen- party members would receive under the law a double opportunity to nominate their candidacies in elections), distinctions in the nomination of candidates for deputy in multi-mandate and single-mandate electoral districts (relating to the collection of signatures, information on the candidate and the promulgation thereof, periods for nomination, and others). In the submission the thesis was substantiated that half of the mandates would cease to be the object of free competition in a multi-mandate electoral district, and privileges were granted in the nomination of candidates by political parties and electoral blocks.
The submissions analyzed, in our view, did not succeed in proving the identity of the conditions of the majority and proportional electoral systems — such a peculiarity exists both for one system and the other. Hence the use of the 4 % electoral quota for parties could not be grounds for the accusation of a violation of the principle of equality of the electoral rights of citizens.
Ignoring this circumstance is a methodological mistake. The decision of the Constitutional Court on this issue was unexpected: it did not agree with the thesis of a violation of the equality of constitutional rights and electoral rights of citizens that was conditioned by the very existence of a mixed system. However, with regard to interpreting the principle of equality of electoral rights, the Constitutional Court stated that, inter alia, the Law of Ukraine «On Elections of People’s Deputies of Ukraine» did not ensure equal legal possibilities in the exercise of the right of suffrage by citizens at the stage of the nomination of candidates for people’s deputy of Ukraine. The Constitutional Court also acknowledged that the Law deprives subjects of the electoral of equal opportunities by the establishment of different periods for the nomination and registration of candidates for people’s deputy from political parties and electoral blocks and periods for the nomination and candidates for people’s deputy in single-mandate electoral districts, and also the establishment of a different period for ensuring the manufacture of pre-election posters in multi-mandate general-State and single-mandate electoral districts.
As a result, the Constitutional Court deemed the respective provisions of the Law to be unconstitutional, ignoring material distinctions existing between majority and proportional systems, the absence of dependence between receiving mandates in one system or in another. The Constitutional Court in this situation, in our view, did not take into account the principle of essential distinctions between the relations regulated.
The experience of the Constitutional Court of the Federal Republic of Germany is interesting in this respect, which in one of its decisions pointed out that the means of regulation may be deemed to be arbitrary which is not consistent with the Constitution if in order to differentiate one does not find reasonable, natural, or other convincing evidence.
An analogous position was taken by the United States Supreme Court, which in McGowan v. Maryland (1961) noted: «… the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others … State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in certain inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it».
The principle of equality should not be absolutized because this may harm justness itself and the ethical foundations of society. The law seeks to ensure the equality of all before the law, to ensure the equality of the initial possibilities of people in society in order to achieve a larger social justness. John Rawls set out rather convincingly in this respect an understanding of the basic criteria:
It seems reasonable to suppose that the parties in the original position are equal. That is, all have the same rights in the procedure for choosing principles; each can make proposals, submit reasons for their acceptance, and so on. Obviously, the purpose of these conditions is to represent equality between human beings as moral persons, as creatures having a conception of their good and capable of a sense of justice. The basis of equality is taken to be similarity in these two respects. Systems of ends are not ranked in value; and each man is presumed to have the requisite ability to understand and to act upon whatever principles are adopted. Together with the veil of ignorance, these conditions define the principles of justice as those which rational persons concerned to advance their interests would consent to as equals when none are known to be advantaged or disadvantaged by social and natural contingencies.
Excessive equalizing becomes the «equalizing of justness», that is, actual injustice, formal, a flagrant expression of equality and inequality. That is why it makes no sense to speak about a general historical trend of strengthening the equality of law. Law develops in each historical stage according to general natural laws and is based on the level of ethics achieved by society. If such conformity exists, this is progress. If not — this becomes a factor in the deterioration of law itself, the essence thereof, because existing differences between people are eliminated to a greater degree.
Strengthening the equality of law in historical perspective may be seen through the prism of what is understood by such equality. If this is a rejection of minor distinctions between relations regulated variously — the strengthening of such equality would be a blessing. If this is a rejection of material indicia which are characteristic of various people, different relations, then the strengthening of such equality will be nothing other than subjective and arbitrary.
For these reasons one should come to the view that law seeks ever greater equality, that the history of law is the history of the «progressing evolution of the content, scale, and measure of formal (or legal) equality while preserving this principle as a principle of any system of law, or law in general».
The use of freedom as an external value criterion of law makes it possible to determine the true measure of freedom which legal norms provide. Freedom is manifest in specific rights (the right to freedom and personal inviolability, the right to freedom of thought and speech), and in available rights in each legal empowerment, duty, or prohibition to act within certain limits. A right may also be viewed through the prism of the necessity to expand freedom for citizens and economic subjects.
Modern conceptions of law are inseparable from notions of maximum freedom for the citizen, the individual. The principle that «all is permitted which is not prohibited by a law» is part of the «flesh and blood» of law (in the Ukrainian legal system it is consolidated at the constitutional level: Article 19, Constitution of Ukraine). Ensuring the free, autonomous, and initiative activity of the individual has become a major criterion of the legislative activity of parliaments and law-making of administrative agencies in civilized States. It has acquired significant weight in Ukraine. But this is not purely physical or mechanical, but an ethical measure of law, underlying which is an assessment of the advisability of expanding freedom, condemning unsubstantiated limitations of freedom, and so on. On the other hand, the principle operates in the constitutional rank of Ukraine and many other countries pursuant to which «agencies of State power and agencies of local self-government and officials thereof are obliged to act only on the basis, within the limits of powers, and in a means provided by the Constitution and laws of Ukraine» (Article 19, Constitution of Ukraine). This already is a principle of the limitation of freedom, of legal limitations for a whole number of subjects of law, indeed, that are on the whole justified. Law in this understanding limits agencies of State power and officials, obliges them to act on the basis of and in execution of the law, verifying all actions by them.
Having regard to the foregoing, under a regulatory definition of law one may resort to a comparison of a perfected system of law with a «kingdom» incarnate with freedom, equality, and justness.
The influence of moral and ethical factors on law and the content thereof is so material that it comprises the moral and ethical foundation of law and serves as its justification and explanation. Morals and ethics fill law with the values of truth, justness, goodness, mercy, and good order, thereby transforming law from a formal measure or yardstick into a moral social measure.
Thus, the fact that law is based on the level of morality and ethics achieved by society which simultaneously determines the measure of law is important for the definition of law.
A material indicator of the regulatory definition of law is the legitimacy thereof, referred to above, that is, recognition of its norms by society as those which one must obey, which are necessary, and which should determine the means of the vital activity of society. Legitimacy transforms the ideas of the ought, the necessary, which exist in society and claim to be transformed into legal norms, or formal prescriptions of the State, agencies thereof, and officials into an immanent regulator imperative for society which becomes a necessary normative standard, law proper, through the approval of society. Such approval imparts a binding nature to these norms for each member of society, that is, they are generally binding. Legitimation transforms law into that which it is, imparts to it a power sanctified by public authority.
From the standpoint of the means of the realization of this measure of a norm of behavior, law is a compulsory requirement, a categorical imperative, an authoritative regulator of human behavior, a means of the ought, the necessary.
From the position of the importance of achieving the purpose of legal regulation, the authoritativeness of law provides not only for the possibility of the conscious realization of the requirements which are contained therein, realization on the basis of conscious compliance with these requirements, marginal behavior, or realization thereof with the assistance of the power of public opinion, power of traditions, and other social means. The authoritativeness of law provides for the obligatory realization of its requirements, and therefore ultimately for the possibility of compulsory realization with the assistance of special social institutions and agencies for the enforcement of law created and functioning in society (courts, procuracy, advo- katura, notariat, police, and so on). They do not all fulfill only legal functions, but each of them bears a certain burden for the effectuation of law. As already noted, in all societies agencies exist to ensure the effectuation of law, although the list and types thereof do not coincide at various stages of the development of society.
Thus, to the material characteristics of law should be relegated the immanently inherent requirement for special means for the enforcement of authoritative behests that regulate the behavior of the individual. The volitional character of law emanates from the authoritativeness of legal norms. It is most often deemed to be a major indicator of law. But it is evident from the foregoing that the volitional character of law is an indicator of the authoritativeness of law derivative from this authoritativeness. That is, wills are mediated in law through authoritativeness, and is not a direct indicator of law.
The authoritativeness of law, however, does not reduce only to its compulsory character, just as power itself does not reduce only to coercion. Such identification is characteristic only for totalitarian States, but under conditions of totalitarianism and dictatorial regimes it is not appropriate to speak about the existence of law. The model of law should be combined not only and not so much with a compulsory command, compulsory authoritativeness, although this indicator cannot be completely discarded (the more so, punitive prescriptions). However, this is derivative from an understanding of the ought in law and from notions concerning the mechanism for the effectuation of law. Normativeness as the ought, the necessity of legal norms differs from the normativeness of other regulators only by the means of their realization, guarantee, provision. That is, if necessity, the general significance of any other social regulators has an expression of their significance conditioned by the conviction intime of members of society relating to their value, the necessary and the general significance of legal norms, in addition, have also an expression of general bindingness — that necessity which is based on the impossibility and insolubility of the other, the necessity, which is ensured with the assistance of special legal institutions.
Summing up, it should be noted that the essence of law is identified through the two principal, in our view, definitions of law. From the cognitive-rationalist standpoint, law is freedom conditioned by equality, an equal yardstick of freedom (lawful order). However, the definition is augmented by the regulatory definition of law as norms legitimized in society determined by the level of morality and ethics achieved by society which rest on authoritative means of enforcement.
Eliciting the essence of law makes it possible to move on to eliciting its rule in the functioning of the State.