The multiplicity of definitions of law which exist in doctrinal writings depends upon the multiplicity of views on the origin of law, the sources of law, the vision of the nature of its links with the State, and also what essential indicia, peculiarities, and features of law underlie a particular definition, and what aspect of it as a complex social phenomenon is being investigated.
An important reason for differences in the definition of law is that each legal doctrine contributes to the basis of such a definition — natural-law, normativity, or sociological. This is characteristic for western and for Ukrainian legal doctrine. We consider this in greater detail.
During the formation of the Western legal tradition, natural law theory was the dominant theory; therefore law was defined as a model of human behavior, as the rule of the ought, the necessary, and not as actually existing positive norms.
Thereafter, when legal positivism dominated (however, while retaining a general pluralism of views of law) the view of law as norms of behavior in force dependent upon the will of the legislator dominated. This position is widely shared today. What conditions this position? It is evident that under conditions of a high level of the legitimacy of power and development of democratic institutions which take into account the opinions of the population when laws are adopted, there is no significant chasm between public opinion and the prescriptions of laws. Legislation has become a continuation of the will of the population, and does not operate contrary to this will. A correct, just lex also is jus. Jus acquires the expression of Lex, and Lex becomes the embodiment of jus. However, because there is no absolute identity in any society, for the West, the question of the conformity of jus to the moral and ethical foundations of society and corresponding adjustment of Lex has been for all times a very topical one. Therefore, many scholars do not link law solely with the prescriptions of the State.
Harold J. Berman noted that traditionally the received concept of law as a body of rules derived from statutes and from decisions of courts which reflect the theory of the will of the legislator, or State, because the highest source of law was wholly unsuitable for supporting research into a transnational legal culture. To speak about the Western legal tradition, he said, means to postulate a concept of law not as a body of rules, but as a process, a measure in which rules have content only in the context of institutions and procedures, values, and ways of thinking. As a consequence of this broader approach, the sources of law contain not only the will of the legislator, but also reason, the conscience of society, and its customs and habits.1
Jurists are increasingly enlarging the foundation of law, including therein rules which exist in various social communities (the family, corporations, social associations, social courts, and so on) and the State. Lawrence Friedman, referring to the experience of the functioning of the legal system in the United States, singled out four types of law: simultaneously formal and public law (acts of Congress), public or governmental law which is not formal (norms actually existing; for example, norms relating to limiting speed on the roads), simultaneously formal and private law (procedure for the consideration of suits and appeals with the assistance of unofficial courts which decide disputes privately, but in compliance with all rules and procedures usually occurring in courts), and, finally, the law simultaneously private and informal (rules of behavior in the family). When using the word «law» [jus], Friedman believes, we are obliged to embrace all human life in all of its manifestations and classify all forms of human behavior as an element of law.
In Soviet legal doctrine, because of the dominance of a narrow-normative under-standing of law, it was defined as the aggregate of norms established or sanctioned by the State, which are upheld by the coercive power of the State. Only in the 1970-80s did works appear which expanded the narrow-normative understanding of law (by including in the definition of law the rights and duties of the individual, legal consciousness legal relations), rejecting the absolute identification of law with State prescriptions. Thanks to efforts in approaches to the understanding of law, pluralism is persistently breaking through and, moreover, other legal trends are being formed — moral (natural-law) and sociological, among which the normativist trend, although it occupies a leading place, nonetheless is increasingly subject to critique.
The normativist conception is based on the traditional Marxist-Leninist understanding of law as the aggregate of norms established by the State and protected by its coercive force. The moral-legal theory emanates from an understanding of law as a system of generally binding concepts of rights and duties of citizens, responsibility thereof, and so on, comprehended by society. The third, sociological theory, emanates from the fact that law is the social relations themselves, the real practice of State protection.
Each of these theories rests on weighty arguments which cannot be ignored when construing the concept of law because they explain those aspects of the manifestation of law which do not find satisfactory explanation in other theories. But the number of arguments directed against each of them is no less. In the view of the opponents of the normativist theory, the existence in legislation of «dormant» norms, declarative prescriptions, which are not consistent with the essence of social relations, undermines the assertion about the coincidence of legislation and law (jus). Proponents of the normative definition of law, on the contrary, among the arguments against natural- law doctrine, name the existence of a very broad range of legal notions in society, and opponents of the sociological theory — the fact that the identification of social relations with law does not enable legal and non-legal relations to be precisely delimited, and so on. To be sure, these legal theories do not depart from the mainstream development of legal doctrines. Rather, on the contrary, they are a temporary rejection of a new stage in the development of society, and from a theoretical viewpoint, nothing other than a manifestation of centuries-old disputes relating to the nature of law. The normativist theory is, in essence, a modification of the historical positivist school of law in a Marxist-Leninist interpretation, and the moral theory — of the natural-law school.
The extension of the sociological conception of law to Soviet jurisprudence (and, indeed, in the West) became a reaction to positive law lagging behind new social relations and its failure to conform to new trends in the development of society which positive law was incapable of adequately reflecting. The sociological conception was orientated primarily towards a rejection of existing formal laws and on this basis crossed the legal historical doctrine. It combined general indicia with a normative doctrine — in the sense that it declared actual relations to be positive, acknowledging them to be real norms. The sociological conception became a moment of thinking over the peculiarities of the realization of law in existing social relations. In fact, this significance is revealed only when law is not identified, but is derived from «factual situations», «life», «specific relations», and is considered in an inextricable link with social processes. The justness of this assessment becomes obvious when considering the sociological conception within the framework of this approach to the objectification of law, when an authoritative command, a norm of law, should be recognized as legal in society, that is, objectified in society, and power — to receive legitimacy.
We consider the legal system of England and the United States at the outset of the twentieth century. It was virtually orientated to such law when judges «created» legal norms in each specific instance, proceeding from the fact that these rules found resonance in society (the granting of these powers was dictated by the need to take the will of the population into account). The power of judges, in turn, acquires legitimacy through the selection of judges. The law which was formed in the process of decision-making had all the social attributes. It might be mistaken only from the standpoint of «pure» normativists who recognized only the prescriptions of the State as legal norms.
Beyond dispute is the fact that in various social measures law is manifested by its various faces. But the problem is that distinctions are observed in greater detail when determining the essential, deep indicia of law. Moreover, several approaches to the understanding of law have been formed in doctrinal writings on the basis of these indicia.
Accentuating various indicia and characteristics and an arbitrary understanding of the essence of law are common reasons for differences in the definition of law. We cite several examples. Avrich, understanding law as the product of spiritual activity, as a variety of an evaluative spiritual mastery of reality, a moment of regulation and procedure in social relations, a sphere of social freedom, as the aggregate of legal norms, and so on, applied a multi-stage cognition of law.1 He recognized several essences: those built in lex and materially determining the will of authority, a scale of freedom equal and just in particular conditions, and, finally, a deep essence — relations of ownership, appropriation of social benefits under conditions of exchange.
Alekseev adhered for a long time to the position that law was deemed to be legal norms sanctioned by the State which grant a certain freedom to participants of social relations, expressly separating «social claims» from law.
Thereafter he somewhat softened his views, having acknowledged, «social law directly», that is, natural rights, and also the existence of non-juridical law, law under conditions of a primitive system. With regard to the last, he pointed out that «law in a number of instances may also designate a qualitatively different phenomenon rather than strict legal regulation, that is, have a non-juridical significance, be understood in a directly social meaning as natural law».
However, he also expressed the thought that such natural rights may receive and actually have received either at once or with time a particular ideal (or ideological) normative-organizational form of mediation, including legal. It is worth emphasizing that the views of Alekseev on law are virtually unchanged.
He believed, as before, that it would be unjustified to attach a universal significance of a philosophical characterization to law, that law as an institutional formation is a system of norms reflected in Lex and other sources recognized by the State which are a generally binding criterion of a lawful-permissive (and also prohibited and prescribed) behavior. Both Iavich and Alekseev recognized that law has various essences.
One must agree with Nersesiants, who believed that Iavich and Alekseev are imprecise in treating the understanding of the unending nature of the process of deepening human cognition, which does not concern at all recognition that the subject-matter here explored has several essences. We note in this instance that recognition of the several essences of law inspired notions about the multi-stage penetration into the essence of things and phenomena, which was actively propagandized from the 1970s.