Emanation of Law

Full Text

Introduction

Norbert Wiener drew an outstanding conclusion: “The world around us is a world of process, not a final dead balance” [Wiener, N., 1967, p. 314]. In this regard, both social and legal phenomena must be studied not so much in statics as in development. Unfortunately, many modern researchers analyze law in statics, without the necessary prior study of the relevant general scientific conclusions, beyond the system of ontologically homogeneous legal phenomena. With such insufficiently convincing scientific approach one may consider characteristic the point of view of N. A. Gredeskul, which he expressed in the article “Sociological study of law” published in the Journal of the Ministry of Justice in 1900: “No one will deny that jurisprudence is now experiencing a critical period, already quite prolonged, but still not promising an end soon...” [Gredeskul, N. A., 1900, p. 3]. The general preliminary conclusions stated above can also be applied to the subject of this article, “Emanation of Law”. Moreover, this subject is practically unexplored in the modern special literature. In rare scientific works which study legal phenomena, the category “emanation of law” is barely mentioned only in the most general terms. So, A. V. Konovalov in his PhD dissertation “Principles of civil law: methodological and practical aspects of research” formulated a very vague conclusion: “At the heart of everything lies the emanation of the idea of good, i. e. ‘the One’” [Konovalov, A. V., 2019, p. 157] (emphasis added. – V. E., M. P.). The author went on to say: “...a legal principle may be embodied in a number of ‘emanations’ – general provisions that lose their abstractness and become increasingly concrete as they approach the practical needs of legal regulation” [Konovalov, A. V., 2019, p. 279] (emphasis added. – V. E., M. P.).

General Scientific Arguments

The characteristic feature of the “real individual,” according to K. Marx and F. Engels, is what really distinguishes man from any other “living” individual, which is the production of the means of life, in the process of which human communication is necessary. As a result, individuals enter into social relations which provide the need for their regulation [Rosental’, M. M., ed., 1971, p. 95]. It should be emphasized that K. Marx in the process of transition from idealistic dialectics to materialistic understanding of the development of society and materialistic dialectics developed a new formula of dialectical development: “...development is not the self-development of an idea, but self-development, self-motion of reality itself” [Rosental’, M. M., ed., 1971, p. 23] (emphasis added. – V. E., M. P.). In “The poverty of philosophy”, K. Marx called “the contradictions of reality” the driving force of development (emphasis added. – V. E., M. P.). With this general scientific approach, the driving force for the development of social relations is the contradictions arising in them which need to be regulated. It seems that general social regulators of social relations are abstract and largely undefined “rules” of “common life” of individuals, such as justice, fairness and reasonableness.

The data known to science allow us to draw the following preliminary conclusions. First: at the initial stage of formation of the general social regulators of social relations there was no necessary degree of differentiation of their general and individual regulators. Second: the sources of general and individual common social regulators of social relations were primarily contradictions between them, agreement (consensus) of individuals, threats of some possible unfavorable consequences, force or authority of some individuals. Third: the general social regulators of social relations – general (fundamental) and special principles of resolution of arising contradictions were characterized by insufficient certainty, obligation and enforceability.

Considering the literal interpretation of the concept (term, category) “principle” derived from the Latin “principium”, specialists traditionally replace it with the Russian word “beginning”. For example, this happened during the translation of I. Newton’s book “Mathematical principles of natural philosophy”. According to this work, “principle” is a statement that meets two criteria: it must be based on experiments and used as a starting point for further conclusions [Newton, I., 1989, p. 7]. It is very characteristic that for Newton, “principle” is the first statement acquired from experience on which further statements are built [Walsh, K., 2017, p. 17]. This point of view is also based on the conclusions of outstanding philosophers. Thus, in the objective sense Aristotle understood principle to be of great importance; that on the basis of which something exists or will exist². F. Bacon asserted, “Principles are the primary and simplest elements from which all other things are formed” [Bacon, F., 1937, p. 22] (emphasis added. – V. E., M. P.). According to I. Kant, “a principle is what contains in itself the basis of the universal connection of all that is a phenomenon” [Kant, I., 1963, p. 340]. G. Hegel believed that “The principle is the one” [Hegel, G., 1970, p. 123] (emphasis added. – V. E., M. P.).

Considering the analyzed general scientific conclusions of the great thinkers, we suppose it is possible to state: general (fundamental) and special principles are the primary and most abstract, to a lesser extent certain regulators of social relations providing the general connection of everything, in accordance with which other rules of “common life” of individuals should be formed in the future, such as norms contained in other forms.

The contradictions arising between individuals in social relations required their “elimination”. In his “Philosophy of nature”, G. Hegel distinguished two kinds of resolution. He wrote: “There are two forms in which the transition from one stage of nature to the other is apprehended – evolution and emanation. Evolutionary understanding, according to which the starting point is the imperfect...” [Hegel, G., 1975, p. 35] (emphasis added. – V. E., M. P.). The thinker recognized absolute totality as the initial link of emanation [Hegel, G., 1975, p. 35] (emphasis added. – V. E., M. P.).

Hence, in our opinion, it is possible to state: the general scientific category of “emanation” characterizes the “transition” of “nature” from “absolute totality” to diverse, multiple and manifold forms of its existence. Thus, G. Hegel distinguished two kinds of development of “nature” as a whole and its separate social phenomena in particular – depending on the level of development of the “initial link”: evolutionary – in the case of an imperfect “initial link” and emanational – occurring on the basis of the “absolute”, common (fundamental), hence abstract and indefinite to the maximum extent. We assume that this understanding of the general scientific categories of “evolution” and “emanation” developed by G. Hegel is supported by the linguistic categories of “evolution” and “emanation”. Indeed, evolution comes from Latin evolution, “unrolling”, the transition from a lower stage to higher stages of development; while emanation comes from the preposition “ex” (“from”) and the verb “manare” (“pour”, “flow”) as the “basis”, the first stage of a consequent outflow from the essence.

1. Wiener, the founder of cybernetics, while exploring control processes in a social system, defined it as a science of control processes. The basis of cybernetics is the transfer of information between the system and the environment – direct connections and feedback. In philosophy the concepts of “feedback” and “feedback principle” are traditionally differentiated. N. I. Zhukov reasonably believed: “In the first case we usually mean only a communication channel in the direction from the controlled object to the regulator, the principle of feedback itself means correction in the course of control” [Zhukov, N. I., 1970, p. 48]. N. Wiener, who reasonably called the feedback principle “the secret of life”, stated: “Feedback is a method of controlling a system by including in it the results of its previous performance of its tasks” [Wiener, N., 1958, p. 71]. In his monograph “The principle of feedback”, A. A. Petrushenko concretized the conclusions of the classics: “This principle characterizes one of the most general and essential properties of life – its ability to independently maintain (within certain limits) a normal process of life and a line of behavior in changing conditions... The dependence of control on the transmission of information... reveals... the moment of self-motion inherent in all matter” [Petrushenko, L. A., 1967, p. 6–7] (emphasis added. – V. E., M. P.).

Another conclusion of N. Wiener is of fundamental importance in the analysis of processes of regulation of social relations: “Understanding of society is possible only in the way of researching signals and the means of communication related to it, while the theory of management is only a part of the theory of information, which is a designation of content received from the external world in the process of our adaptation to it, and a measure of organization of a complex system” [Wiener, N., 1958, p. 30] (emphasis added. – V. E., M. P.). W. R. Ashby made this outstanding conclusion more specific: according to the law of necessary diversity “...the measure of organization of a complex system” should be no less than the degree of diversity of regulated social relations, because “...only diversity can destroy diversity” [Ashby, W. R., 1959, p. 293–302] (emphasis added. – V. E., M. P.).

In view of the fact that general regulation of emanating actual social relations obviously cannot provide the proper degree of “organization of a complex system,” it must inevitably be supplemented by individual regulation, such as individual contractual regulation, occurring by agreement of the subjects of social relations. As a result, the regulation and order of actual social relations is achieved, which is “...a form of social consolidation of a given mode of production and therefore its relative emancipation from mere chance and mere arbitrariness” [Marx, K., 1953, p. 806] (emphasis added. – V. E., M. P.). It seems that since the seventeenth and eighteenth centuries up to the present the fundamental criterion for the general scientific study of any social phenomenon has been its analysis in the system of elements and their components. In our opinion, L. Bertalanffi’s ingenious idea about the necessity to study social phenomena from the position of the general systems theory, which is based on the principle of systems integrity [Bertalanffi, L., 1969, p. 23, 24], can be recognized as a general scientific concept, applicable to the processes of actual social relations regulation as well.

1. V. Blauberg, V. N. Sadovsky, and E. G. Yudin distinguished three classes of existing array of objects: disorganized array (“summative whole”), extrinsic (simply organized) systems, and intrinsic systems [Blauberg, I. V., Sadovsky, V. N., Yudin, E. G., 1970, p. 11]. Analyzing these types of systems, I. V. Blauberg and E. G. Yudin convincingly emphasized: they are equally characterized by “...the presence of connections between the elements and the appearance of new properties in an integral system, not inherent in the elements separately. Connection, integrity, and the stable structure caused by them... are the hallmarks of any system” [Blauberg, I. V., Yudin, E. G., 1973, p. 177]. However, they convincingly continued, “...if the former is a consolidation into a known integrity of relatively isolated elements, the latter is a ‘physically’ indivisible, self-developing whole” [Blauberg, I. V., Yudin, E. G., 1973, p. 177–178]. We believe that with this general scientific approach, it is more reasonable to refer to the system of social relations as a disorganized array, a “summative whole”. The authors are convinced: it is more scientifically reasonable to study social relations first of all from the position of the general theory of systems, because “any content receives its justification only as a moment of the whole, outside of which it is an ungrounded assumption or subjective certainty” [Hegel, G., 1974, p. 100] (emphasis added. – V. E., M. P.).

The study of social relations and their regulators is impossible without reference to logic. First of all, the following must be emphasized: in logic, volumes that coincide fully or partially are called compatible; three kinds of compatibility of concepts are distinguished: equipoise, intersection, and subordination. In this regard, social relations and their separate types, such as legal relations, have both general and special substantive attributes, which will be explored further.

Legal Arguments

The popular pre-revolutionary Russian legal scholar G. F. Shershenevich believed: man cannot exist without society, which he defined as “the combination of individuals”. G. F. Shershenevich continued: “...where there is society, there must also be rules of social life or social norms. Social norms determine a person’s behavior in society, and consequently a person’s attitude toward other people. Norms always come from authority, which is acquired in the eyes of the submissive individual through power, force, respect... A social norm is always a command...” [Shershenevich, G. F., 2016, p. 91]. Unfortunately, G. F. Shershenevich left a number of important theoretical and practical questions unanswered. For example, how do the general scientific category “social relations” and the legal category “legal relations” correlate? What is the ratio of the categories of “legal relations” and “legal regulators”? Are there any other legal regulators of legal relations besides the norms of law, and if yes, what are they and how do they relate to each other?

Numerous scientists have tried to answer these and other relevant questions in accordance with different types of legal understanding. In our opinion, in the modern world, including Russia, it is possible to distinguish two main types of legal understanding: legal positivism and integrative legal understanding.

Legal positivism in general comes down to the limitation of the right to “law”, to “legislation”, or, more precisely, to national legal acts (part 1, article 15 of the Russian Constitution) adopted by authorized state bodies. Thus, N. G. Aleksandrov, one of the recognized Soviet classics in the field of general theory of law in the twentieth century, believed: “In order for a particular social relation to take the form of a legal relation, two conditions are necessary: firstly, this social relation should be or could be expressed in acts of volitional behavior of people; secondly, it is necessary that it should be regulated by the will of the ruling class, i. e. the norms of law” [Aleksandrov, N. G., 2008, p. 73] (emphasis added. – V. E., M. P.). At the same time, the scientifically grounded concept of integrative legal understanding is not limited to a single source of law but is characterized by the synthesis of ontologically homogeneous legal regulators, primarily principles and norms of law, contained in a single, evolving and multilevel system of forms of national and (or) international law, implemented in the state, having different sources. Unfortunately, however, there is also a scientifically debatable type of integrative legal understanding, the concept of which was developed in accordance with the paradigm of syncretism (from Greek synkretismus) and combines ontologically diverse social phenomena and views, resulting in the synthesis of legal and non-legal regulators of legal relations in a single system of various social regulators, “dilution” of the right (recht) by the wrong (unrecht). For example, principles of law, norms of law, fairness, good faith, and reasonableness are “combined” in a single system.

Next, in the aspect of different types of legal understanding we would like to analyze the question of the relationship between social relations and legal relations. S. S. Alekseev, recognized in our country in the XX century as a classic in the field of general theory of law, trying to prove the “creative role of law”, wrote: “...the difference between the legal form and the actual (material) content allows us to understand the mechanism... of the creative role of law. The legal form has an active character. In a way it attracts to itself the actual (material) content... The legal norm, having emerged without a definite factual content, creates it: positive actions are taken... the purpose of legal regulation is achieved – factual relations never existing before are formed” [Alekseev, S. S., 1972a, p. 261–263] (emphasis added. – V. E., M. P.). At the same time A. P. Dudin from general scientific positions developed a more reasonable point of view: “Social relations are self-developed into legal relations by their essence due to natural-historical (economic and political) necessity, but do not become such as a result of the influence of law norms on some non-legal factual relations” [Dudin, A. P., 1983, p. 5]. The mentioned point of view of A. P. Dudin is based on the fundamental general scientific conclusion of K. Marx: “...development is not self-development of an idea, but self-development, self-motion of the reality itself” [Marx, K., Engels, F., 1955a, p. 539] (emphasis added. – V. E., M. P.). In the work “The Poverty of Philosophy” K. Marx elaborated this general scientific conclusion as applied to the general theory of law: “It is truly necessary not to have any historical knowledge in order not to know the fact that at all times sovereigns have had to submit to economic conditions and have never been able to prescribe laws to them. Both political and civil legislation always only express, record the requirements of economic relations” [Marx, K., Engels, F., 1955b, p. 112] (emphasis added. – V. E., M. P.).

In this part of the article, in the light of the three types of compatibility of concepts (equidistance, intersection, and subordination) developed in logic, a scientifically substantiated and theoretically convincing conclusion should be recalled. According to this conclusion, “actual legal relations are a type of subordinate actual public relations that have both general and special essential signs. For example, actual legal relations differ from actual public relations in their nature, exist only in a certain area of public relations, are characterized by a greater degree of certainty, are regulated by legal and individual regulators” [Ershov, V. V., 2022a, p. 16] (emphasis added. – V. E., M. P.). This theoretical approach allows us to admit the following: de facto legal relations are a type of subordinate actual social relations, which have both general and special essential attributes.

Next, we would like to dwell on the issue of correlation of actual legal relations and their legal regulators. In theory and in practice, the question arose: what is primary – legal relations or legal regulators? In many respects, we think, in our article the answer has already been given. If the actual legal relations are already established legal reality and objectively existing legal relations that need legal regulation, then the legal regulators of actual legal relations which arise as a result of their development are “measures of their organization”. In this general scientific approach, the emanation of legal regulators of legal relations can occur only as a result of “self-development, self-movement of reality itself” (K. Marx). Consequently, in answer to the second question, it is possible to state: it is the actual legal relations already established in one of the spheres of social relations and in need of “organization” but not the actual social relations that legal regulators affect. Thus, objectively already arisen actual legal relations are primary, and legal regulators are secondary. In this connection, R. A. Posner’s assumption about the “autonomy of law” seems to be scientifically and theoretically debatable [Posner, R. A., 2020, p. 210–211].

Further, inevitably there is another important theoretical as well as practical question – about the types of legal regulators. Many scientists from the position of legal positivism are convinced that there is only one legal regulator: the rule of law. So, A. F. Cherdantsev in 2012 asserted: “The norm of law is the primary element of law” [Cherdantsev, A. F., 2012, p. 38]. The title of the monograph of the esteemed M. I. Bajtin is also characteristic: “The essence of law (Modern normative understanding of law on the border of two centuries)”³. The recognized pre-revolutionary scholar G. F. Shershenevich from the position of legal positivism understood as the principle of law the general idea, the direction embedded by the legislator consciously or unconsciously in a number of legal norms [Shershenevich, G. F., 1995, p. 15]. Moreover, some pre-revolutionary scholars were skeptical regarding the principles of law. For example, E. V. Vas’kovsky asserted, without the necessary and convincing theoretical arguments, but very categorically: “The principles of law in general and natural law in particular are debatable... The matter is reduced to a complete and uncontrolled judicial discretion, which is not far from being arbitrary” [Vas’kovsky, E. V., 1997, p. 102].

Many Soviet scholars often developed very vague notions of the principles of law from the position of legal positivism. For example, N. G. Aleksandrov thought: “Basic principles of socialist law are provisions expressing the general orientation and the most essential features of socialist legal regulation of social relations” [Aleksandrov, N. G., 1957, p. 17]. The “principles of law” highlighted by N. G. Aleksandrov, such as “planning discipline” and “democratic centralism”, are also very characteristic [Aleksandrov, N. G., 1957, p. 19–21]. In 1970 E. A. Lukashova defined principles of law as “...objectively determined principles, in accordance with which the system of law is built” [Lukashova, E. A., 1970, p. 21]. In the same article E. A. Lukashova wrote: “...the beginnings, the ideas are the principles of law” [Lukashova, E. A., 1970, p. 22]. Later this point of view of E. A. Lukashova was often reproduced by researchers and practitioners.

In 1972, S. S. Alekseev made an even more vague and theoretically controversial conclusion, subsequently replicated by most specialists in Russia. The principle of law, he wrote, is “...the basic normative-guiding beginnings expressed in law that characterize its content, its foundations, the regularities of social life enshrined in it. Principles are what permeates the law, reveals its content in the form of initial, prevailing ‘ideas’, the main beginnings, normative and guiding provisions” [Alekseev, S. S., 1972b, p. 102]. Thus, S. S. Alekseev recognized principles of law as ‘beginnings’, ‘ideas’ and ‘provisions’ at the same time in a very vague and contradictory way. In 1981, S. S. Alekseev essentially repeated his definition of the concept of legal principles: “These are the basic normative and guiding beginnings expressed in law, characterizing its content, its foundations... They are the main regulatory elements of the structure…” [Alekseev, S. S., 1981, p. 98, 262].

In our opinion, the definition of the principles of law as “general beginnings,” “provisions,” “ideas,” etc. does not correspond to the general scientific conclusions presented in the article, for example, about “regulators” of “social relations”⁴, and is based primarily on legal positivism. In this connection one cannot but agree with the point of view of A. L. Kononov: “The concept of legal principles in the Soviet legal doctrine exists mainly as a theoretical, extremely ideologized one. In fact, the principles of law were understood as political ideas rather than legal ideas... The purely positivist understanding of law did not give the principles the status of independent sources of law, it derived them from legislative norms, and because of this understanding they could not serve as a criterion of these norms, moreover this assessment itself was not allowed either” [Kononov, A. L., 2001, p. 82] (emphasis added. – V. E., M. P.).

It is necessary to emphasize that in the XVIII century J. P. Kozelsky, a philosopher, writer, politician and one of the co-authors of the “New Statute of laws of the Russian Empire”, distinguished the properties of “immediacy”, “non-exhaustiveness”, “universality” and “benchmark” in the principles of law. For example, in his “Philosophical proposals” addressed to Prince A. A. Vyazemsky, the chairman of the Decree Commission created by Catherine II in 1767, one of whose first tasks was to improve Russian legal acts, he considered possible and necessary “...to formulate principles of law as something invariable and universal, so that the “useful laws” issued in the state would always be in accordance with them” [Zolotukhinа, N. M., 2018, p. 241–242] (emphasis added. – V. E., M. P.). The conclusion of L. A. Tikhomirov made in his monograph published in 1923 with the characteristic title “Monarchical statehood” is also striking: “...the legislator should himself be guided by something in giving or not giving rights to the individual or defining any action as their duty” [Tikhomirov, L. A., 1998, p. 569] (emphasis added. – V. E., M. P.). Notably, O. V. Smirnov made a step forward in 1977 and came to the convincing conclusion that the principles of law reflect the qualities of the general, the abstract, the essential and the systemic; principles are deeper than the norm, the norm is richer than the principle [Smirnov, O. V., 1977, p. 11]. Thus, O. V. Smirnov essentially distinguished between principles of law and norms of law as different legal regulators of legal relations.

On March 15, 2005, the Constitutional Court of the Russian Federation adopted Decision No. 3-P on the case of verification of the constitutionality of the provisions of paragraph 2 of Article 278 and Article 279 of the Labor Code of the Russian Federation and paragraph 4 of Article 69 of the Federal Law “On joint-stock companies”⁵. On the one hand, in this Decision the Court recognized the provisions of paragraph 2 of Article 278 of the Labor Code and paragraph 4 of Article 69 of the Federal Law “On joint stock companies”, according to which the employment contract with the head of an organization can be terminated in connection with the adoption by the authorized body of a legal entity, including the Board of Directors (Supervisory Board) of a joint stock company, or the owner of the property of the organization, or a person (body) authorized by the owner to early terminate the employment contract, not contrary to the Constitution of the Russian Federation, because the said provisions “...suggest that the termination of an employment contract… is not a measure of legal responsibility...” (emphasis added. – V. E., M. P.).

On the other hand, in paragraph 4.3 of this Decision the Constitutional Court of the Russian Federation formulated an important position: “Legislative establishment of the right to early termination of an employment contract with the head of an organization without specifying reasons for dismissal does not mean that the owner has unlimited discretion in making such decisions, has the right to act arbitrarily... and the head of the organization is deprived of guarantees of judicial protection from possible arbitrary action and discrimination. The general legal principle of the inadmissibility of the abuse of rights, as well as the prohibition on discrimination in the exercise of rights and freedoms... (Article 17, part 3; Article 19 of the Constitution of the Russian Federation), is fully applicable to the sphere of labor relations, determining the limits of the owner’s discretionary powers... do not prevent the head of the organization, if he believes that the owner’s decision on early termination of the employment contract with him is actually due to such circumstances that indicate discrimination, abuse of right, to challenge the dismissal in court. If the court establishes, on the basis of a study of all the circumstances of a particular case, the relevant facts, his violated rights shall be restored” (emphasis added. – V. E., M. P.).

In accordance with this Decision of the Constitutional Court of the Russian Federation, on June 2, 2015, The Plenum of the Supreme Court of the Russian Federation adopted Decision No.21 “On Certain Issues Arising for the Courts in Applying Legislation Regulating the Employment of the Head of an Organization and Members of its Collegial Executive Body”⁶ according to Paragraph 9 of which “If the court finds that the decision to terminate the employment contract with the head of the organization under paragraph 2 of Article 278 of the Labor Code of the Russian Federation was made by the employer in violation of the principles of inadmissibility, abuse of right and (or) prohibition of discrimination in the workplace (Articles 1, 2 and 3 of the Labor Code of the Russian Federation), such decision may be declared illegal” (emphasis added. – V. E., M. P.). Thus, in our view, it is possible to state: the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation have developed a unified position, the essence of which is that, firstly, the principle of law is a legal regulator of legal relations; secondly, has greater legal force than a law norm. Consequently, thirdly, in the presence of the principles of law there is no gap in labor law!

The general scientific and theoretical arguments analyzed in this article allow us to formulate answers to the third and fourth questions posed above and to draw four preliminary conclusions. First: it is possible to distinguish between principles of law and norms of law as different legal regulators of legal relations. Second: the sources of general (fundamental) and special principles of law are primarily contradictions arising in legal relations, as well as agreement (consensus) of the subjects of legal relations. Third: general (fundamental) and special principles of law are primary, more abstract and less defined (compared with the norms of law) legal regulators of legal relations. Fourth: general (fundamental) and special principles of law can be considered as one of the sources of further emanation of law, the emergence to a greater extent of certain and objective legal regulators of legal relations contained in other forms of law.

In the Western professional literature, principles of law were studied, for example, in the works of F. C. von Savigny, who shared the position of natural origin of law (“the youth of law”) from “people’s spirit” [Savigny, F. C. von., 1867, p. 3]. A proponent of the natural law direction in law, Savigny relied on the regularities of its emergence and development through deduction from general to more specific legal regulation. He recognized “pure law,” the foundations of “ancient law” as its sources, the common, inalienable values peculiar to a nation (people), the beginnings of true law [Savigny, F. C. von., 1867]. It is characteristic that according to R. A. Posner, Savigny understood “pure law”, “the law of antiquity” as “the original Roman principles in their pure form” [Posner, R. A., 2020, p. 119] (emphasis added. – V. E., M. P.).

At the same time, O. W. Holmes, who did not recognize “general principles of law,” viewed the contemporary legal system as based on the priority of “practice,” “utilitarian convenience,” irrespective of principles of law, which are so non-binding that they can be ignored [Holmes, O. W., 1881, p. 207–211, 218–219]. At present, unfortunately, such “utilitarian” approaches and “targeted programs” prevail in lawmaking not only in the United States but also in other states. In our opinion, the above conclusions of O. W. Holmes and his followers are essentially based on legal positivism, according to which the source of law is the state, including the court, which produces law in the form of legal acts and judicial precedents.

In Russia, the question about the general beginnings of the sources of law stimulated the general theoretical prerequisites for the development of science, the introduction of a new subject – the “general theory of law” – into the scientific turnover. The change of the subject of the “encyclopedia of law”, known in the 17th century, took place in Russia at the initiative of N. M. Korkunov, who found a historical example in N. N. Falck⁷. In this work N. N. Falck argued that a general doctrine of law is necessary – “allgemeine Rechtslehre” [Korkunov, N. M., 2010]. At the same time, from the point of view of F. V. Taranovsky, N. N. Falck did not mean a theoretical subject – “general theory of law”, as it was accepted; he proposed a new “method” – “generalization of law” consisting of “extraction from the current legislation such legal provisions, which even though not expressed in it, nevertheless follow with logical necessity from legal provisions expressed in positive laws directly. The general doctrine of law understood in this way must serve as a guide for the judge in cases of apparent incompleteness of the law” [Taranovsky, F. V., 1917, p. 9] (emphasis added. – V. E., M. P.).

Surprisingly, in the same work Taranovsky expressed another opinion: the emergence and development of legal regulators, he wrote, takes place in “social unions” and “territorial communities”, which historically preceded state organization. Law “determines the custom” developed in public formations with their principles and norms. State power, according to F. V. Taranovsky, while applying principles and norms of customary law, fixes them in “judicial verdicts” and “statutory acts”, informs “legal customs of the highest degree of positivity” through fixation in “acts of legislation” of ancient princes, “acts of judicial authorization” and “official records of legal customs” [Taranovsky, F. V., 1917, p. 60].

We assume that the modern special literature has developed a typical point of view: “...in the twentieth and twenty-first centuries in the world the development of ‘hybrid’ law has continued, which in general emerged from:

1) legal positivism;

2) scientifically debatable concept of integrative legal understanding, combining both legal and individual, as well as ontologically heterogeneous general social regulators of legal relations, for example, law norms, judicial acts and individual (private) contracts, good faith, reasonableness, fairness;

3) scientifically grounded concept of integrative legal understanding, characterized by the synthesis of ontologically homogeneous legal regulators of legal relations – primarily principles and norms of law contained in a single, evolving and multilevel system of forms of national and (or) international law, implemented in the state” [Ershov, V. V., 2022b, p. 14].

It seems that scientifically more convincing, based on the theoretically sound concept of integrative legal understanding, is the following approach: in law it is possible to synthesize homogeneous legal regulators of legal relations from different sources – primarily general (fundamental) and special principles and rules of law, contained in a single, evolving and multi-level system of various forms of law, currently known to science – national and international law customs, legal acts and legal contracts. The result of this scientific approach can be a higher degree of certainty of law and law enforcement practice, and most importantly – more effective protection of the rights and freedoms of subjects of legal relations. In our opinion, this conclusion is also based on Aristotle’s rather characteristic point of view: certainty is “the most reliable of all beginnings – the one about which one cannot err, for such a beginning must be the most obvious... and free from all presumption... A beginning which... is not presumption; but that which it is necessary... to know... in proceeding to study... Thus, it is clear that this beginning is the most certain of all... for by nature it is the beginning even for all other axioms” [Aristotle, 1976, p. 125] (emphasis added. – V. E., M. P.) .

Scientifically grounded concept of integrative legal understanding is based on the synthesis of various homogeneous legal regulators, forms of law and sources of law [Ershov, V. V., 2020, pp. 52–67]. “Synthesis,” as René Guénon wrote in a general scientific and theoretical way, “is always based on certain principles... on what constitutes the inner unity of existence and what is symbolized by the center of the circle... syncretism always deals with the periphery, with the area formed by separate single elements...” [Guénon, R., 2010, p. 42, 43] (emphasis added. – V. E., M. P.).

In our opinion, H. Maine, who studied the development of forms of law since the formation of states, did not consider the general scientific arguments presented in the article and therefore came to a theoretical conclusion that is not sufficiently complete and convincing: it is a movement from statutes to contracts [cited from: Mozolin, V. P., Farnsworth, E. A., 1988, p. 32]. It seems scientifically and theoretically more accurate to state: this is a movement from customary law to legal contracts. Indeed, firstly, in accordance with the arguments outlined in the article, it is necessary to differentiate the general social regulators of actual social relations, as well as legal and individual regulators of actual legal relations. Secondly, according to the concept of emanation of law, it is possible to distinguish the following levels: customs of law, legal acts and legal contracts; among the legal regulators – general (fundamental) and special principles of law, as well as rules of law.

Conclusion

After having considered the general scientific and theoretical arguments analyzed in the article, we came the following conclusions.

First: emanation of law is a process of development of law from customary law to legal contracts; its “initial link” is recognized as the objectively existing general (fundamental) and special principles of law, the implementation of which can achieve a higher degree of certainty of law and law enforcement practice, and most importantly – the most effective protection of the rights and freedoms of subjects of legal relations.

Second: the “center”, the “stage” of the emanation of law, the “center of the circle” are the general (fundamental) and special principles of law that combine it with the “periphery of the circle” – the rules of law that allow the system of legal forms to exist in internal and external unity.

Third: the “stages” of forms of emanation of law were identified: customary law → legal acts → legal contracts which have different sources and contain legal regulators of legal relations – general (fundamental) and special principles of law and law norms.

Fourth: the legal categories of “evolution of law” and “emanation of law” are differentiated, defined as the process of development of law from customary law to legal contracts; as its “initial link” are recognized the emerging relevant general (fundamental) and special principles of law, the implementation of which can achieve a higher degree of certainty of law and law enforcement practice, which allows to ensure the most effective protection of rights and freedoms of subjects of legal relations.

Fifth: The development of law in the world takes place in the “forms” of the emanation of law and the evolution of law.

About the authors

Valentin V. Ershov

Author for correspondence.
Email: evv@rsuj.ru

Dr. Sci. (Law), Professor, President of the Russian State
University of Justice, Honored Lawyer of the Russian  Federation, Honored Scientist of the Russian Federation, Academician of the Russian Academy of Natural Sciences

Maksim B. Polyakov

Email: polyakovmb@yandex.ru
Russian Federation

References

Supplementary files