Integration of legal understanding as a methodological issue

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Integration of legal understanding as a methodological issue

Petro M. Rabinovych

National Academy of Legal Sciences of Ukraine

Department of Theory and Philosophy ofLaw Ivan Franko National University of Lviv

Serhii P. Rabinovych

Department of Constitutional Law Ivan Franko National University of Lviv

Oleh Z. Pankevych

Department of General Legal Disciplines Lviv State University of Internal Affairs

Keywords: integral legal understanding, dialectics, need-based approach, monism, pluralism, synthesis

Петро Мойсейович Рабінович

Національна академія правових наук України

Сергій Петрович Рабінович

Кафедра конституційного права Львівський національний університет імені Івана Франка

Олег Зіновійович Панкевич

Кафедра загально-правових дисциплін Львівський державний університет внутрішніх справ

ІНТЕГРАЛЬНІСТЬ ПРАВОРОЗУМІННЯ ЯК МЕТОДОЛОГІЧНА ПРОБЛЕМА legal understanding dialectical epistemological need

Анотація. Актуальність дослідження зумовлена процесами плюралізації світоглядно-філософських і методологічних засад юриспруденції і такими, що відбуваються на тлі цих процесів, спробами теоретичного подолання конкуренції «позитивістських» і «природних» підходів до розуміння права в складі інтегративного праворозуміння. Метою статті є виявлення епістемологічних труднощів побудови інтегральних концепцій праворозуміння, пропонування напрямків їх подолання та обґрунтування варіанту інтегративного розуміння права на засадах поєднання діалектичного й потребового методологічних підходів. Основні методи дослідження. З опертям на діалектичну логіку розкривається сутність інтегративного праворозуміння як спроби здійснити синтез суперечливих підходів до осмислення права, процес інтегрування праворозумінь осмислюється як зняття суперечностей у розвитку правових явищ, а інтегрованість постає як включення окремих моментів такого розвитку до складу динамічної цілісності. На основі потребового підходу обґрунтовано критерій осмислення певних явищ як правових. Значення проведеного дослідження. Доведено, що інтегрування відмінних праворозумінь є завданням, яке може бути здійснене на засадах діалектичної, а не формальної логіки, а також із збереженням відмінностей та суперечностей між об 'єднуваними концептуальними елементами. Обґрунтовано, що під час потребозадоволення відбувається інтегрування властивостей певних явищ в процес людського існування, набуття ними статусу життєво необхідних, а відтак і нормативно значущих складових цього процесу. Відтак правовість стає результатом діяльнісно-практичного інтегрування тих явищ, які слугують необхідними складовими життєдіяльності людини у соціумі

Ключові слова: інтегральне праворозуміння, діалектика, потребовий підхід, монізм, плюралізм, синтез

INTRODUCTION

One of the most popular trends in the Ukrainian philosophy of law and general theoretical legal science is the aspect designated as integrative (“integral”, “synthetic”) legal understanding. Its emergence is primarily due to the pluralisation of the methodological foundations of theoretical legal science; the desire to update and expand its cognitive tools, overcoming the bipolarity of classical conceptual approaches to understanding law - “positivist” and “natural”, methodological limitations and one -sidedness of each of them. At present, one of the intentions that can feed integration trends in legal science is also the desire to take “the correct” path of understanding law. In this context, research-to-practice events devoted to it can be an additional evidence of the relevance of this issue in the post-Soviet space [1; 2]. At the same time, it would probably be unfair to attribute the above-mentioned pragmatic motivation to all participants of these forums, since the problem in question exists regardless of the intentions of their organisers and has a general methodological significance. Nevertheless, the above demonstrates the urgency of the problem of integrativity in legal understanding for philosophical and theoretical legal science in the post-Soviet space, in particular in Ukraine. In the electronic version of the Encyclopaedia of Modern Ukraine, the concept of integration (Latin integratio - replenishment, restoration) is interpreted as “combining any elements into a single whole, as well as combining and coordinating the actions of various parts of an integral system; the process of rapprochement and interaction of individual structures” [3]. In the philosophy of law, some of the above definitions of integration receive a specific semantic content. Thus, integrative (“synthetic”) philosophical and legal concepts first emerged at the end of the 19^th century in the works of B.O. Kistiakivskyi, O.S. Yashchenko, P.G. Vinogradov as a “means to reconcile” [4] the competing areas of understanding law, primarily jusnaturalism and legalistic positivism, and later received further development in the United States (J. Hall, G. J. Berman et al., P. R. Teachout) [5-7].

The authors of the present study have reasons to believe that integrity as an attribute of the concept of legal understanding should describe the state of unity and indissoluble semantic integrity of its structural parts (ideas, concepts, principles, etc.) as components of those concepts whose elements have been integrated. This state should reflect the emergence of a fundamentally new quality and heuristic in the newly formed version of the understanding of law, which was absent from the original concepts. Currently, various aspects of the problem of integrativity in legal understanding attract the attention of representatives of both legal and philosophical sciences [8]. In particular, some integrative opinions of Ukrainian and Russian philosophers of legal science of the late 19^th - early 20^th centuries (O.A. Prybytkova, V.M. Zhukov, M.P. Alchuk, etc.), modern integrative theories of legal understanding and problems of synthesis of methodological approaches have already been investigated [4; 9-12]. Attempts to create original integrative-oriented concepts of both legal understanding and socionormatics in general were made both in the West (A. Kaufmann, R. Dworkin, R. Alexi) and in the post-Soviet space (G.V. Maltsev, R.A. Romashov, V.M. Shafirov, V.I. Pavlov, etc.). Non-classical ontologies of legal reality developed in Ukraine (S.I. Maksimov) [13] and in Russia (I.L. Chestnov) have an integrative direction [14]. Among the English-language publications of recent years, particular attention has been is drawn to the consideration of the psychological and typological foundations of inclusive theories of law [15], attempts to substantiate “hybrid natural law” [16], the legal theory of ethical positivism [17] and its deontological versions [18].

Proponents of the integrative aspect in understanding law often employ the concept of law as an extremely broad figurative representation covering ontologically diverse phenomena (ideas, norms, social relations), which, however, are somehow connected by the authors of concepts with a particular semantic dominant (usually legalistic), which, obviously, according to integrativists, should be considered law itself. Researchers have also long used sociologically coloured concepts, such as “legal life”, “legal reality” (R. Ering, M.A. Gredeskul, E. Anners, O.V. Malko, M.I. Matuzov, etc.), “legal field” (P. Bourdieu), etc., one way or another aimed at expanding the scope of “legal” beyond the state's volitional decisions. The idea of building an integrative legal understanding has gained not only its adherents [19], but also opponents [20], as well as those who are wary of the ideas of “integrativists” [21]. Therewith, the point of criticism is usually directed against individual attempts to implement integrativity; the lack of an integral definition of the concept of law is indicated as the main drawback [20, p. 8]. In this regard, the authors of this study note that the publications of critics of the idea of integrativity, and sometimes even its individual supporters, unfortunately, frequently lack methodological self-reflection, which the issues under study admittedly deserve. The essential ones include a) the problem of being and thinking synthesis of opposites and b) the task to develop a specific “legal object of knowledge”, formulated by J. Hall [5]. The exceptional complexity of the latter task is the reason that, as is not unreasonably noted by modern researchers, “in most cases, legal re ality is the context of scientific reasoning, and not their subject”. [22, p. 8]. Considering the specified state of research on the subject matter, the purpose of the present study is to identify the epistemological difficulties in constructing integral concepts of legal understanding, suggest solutions for them, and justify the option of integrative understanding of law based on a combination of dialectical and need-based methodological approaches.

1. MATERIALS AND METHODS

The solution of these research problems requires relying on several interrelated conceptual approaches, general scientific, and special methods and means of research, which together form the methodology of the present paper. Considering the understanding of the conceptual approach as a worldview axiomatic idea based on extremely general categories, which postulates a general research strategy, selection of facts and interpretation of research results [23, p. 138], basic philosophical and ideological methodological approaches, on which further arguments of the authors of this study are based, they became dialectical and necessary.

Thus, based on the dialectical methodological principle of contradiction [24; 25], the authors solved the problem of covering the essence of integrative legal understanding as an attempt to implement a synthetic combination of contradictory approaches to understanding law as an integral phenomenon. Based on the methodological principle of unity of the logical and the historical, the integration of those phenomena that for certain reasons are considered legal into human need-satisfaction activities is interpreted as removing contradictions in the process of their dialectical development. The need to rely on dialectical methodology is conditioned upon the fact that the task of developing a concept of law that would consistently include competing approaches to its understanding seems almost impossible to solve from a strictly positivist and scientific standpoint. Instead, a more optimistic prospect for such a synthesis arises based on turning to dialectical logic [26]. It is from such positions that the formal logical mutually exclusive answers to the question of what is law can be considered as the result of reflecting/constructing various aspects of law as a complex and multifaceted phenomenon: the integration of conceptual elements of excellent legal understanding is the creation of their new and organic unity and integrity and should be the result of an act of synthesis. Therewith, this refers to a synthesis where the contradictions remain - and, consequently, to a synthesis performed based on the methodological principle of unity of being and thinking, and not by some formal logical procedure that is the opposite of analysis.

The dialectical approach is logically combined with the need-based approach as a special type of activity-based methodological approach. The special significance of the need-based approach here lies in the fact that through its mediation, the present study implements an anthropocentric interpretation of phenomena that are considered legal. The use of the dialectical basis of development in combination with the methodological principle of consistency allows comprehending integration as the inclusion of certain aspects of legal development in the organic integrity that is formed as a result. Further, both methodological approaches - dialectical and need-based - are based on the use of philosophical and legal methods as procedures for interpreting and applying extremely general categories upon studying those phenomena that are reflected in the term-concept of law, as well as concepts of legal understanding. Most importantly, this refers to methods of convergence from the abstract to the concrete, with the help of which the idea of synthesis as a combination of opposites is defined in the models of integrative legal understanding constructed by individual legal scientists. The method of convergence from the concrete to the abstract, which is reversed relative to the above, serves, in particular, as a means of identifying the operation of dialectical laws in the interaction of alternative areas of legal knowledge. The method of theoretical modelling is used here to represent law as a universe and a multiverse.

The appeal to the system approach and general scientific methods of system analysis was conditioned upon the need to describe the current state of development of the problems of integrative legal understanding. To clarify the semantic meanings of related concepts of integrativity, integrity, and integrability in the context of the problem of legal understanding of legal science, the study employed the industry methods and techniques (means) of etymological analysis. These philosophical and general scientific methods are implemented using various research methods - conditioned upon the chosen conceptual approaches and corresponding cognitive methods of activity operations aimed at establishing and interpreting those phenomena that are part of the subject of this study. Most importantly, such methods (techniques) include general scientific research techniques of abstraction, comparison, and classification.

2. RESULTS AND DISCUSSION

2.1 Epistemology of integrity: monism or pluralism?

As early as in the legal science of the 19 ^th - early 20^th century, the main areas in the development of legal ontology and epistemology were clearly identified: monistic and pluralistic, metaphysical and positivist, which still determine the divergence of opinions on the problem of integrity in legal understanding. An illustration of a kind of logical-positivist “purism” can be L. Petrazhytsky's criticism of the use of the term “law” as a general designation of positivist and jusnaturalistic ideas [27, p. 380-381]. Justified by the outstanding legal scientist, the “impossibility” of “positively” combining this law with “due”, “proper” law follows, evidently, from the Kant's dualism of what exists and what is due. Therewith, L. Petrazhitsky recognised numerous varieties of positive law (“intuitive”, “official”, “book”, “judicial”, etc.) [27, p. 410 et seq.].

Another example of law-recognising pluralism is the position of B. Kistiakivskyi, who defended the multiplicity of manifestations and concepts of law: “since there are sociological, psychological, state - organisational, statutory manifestations of law, therefore, not one, but several concepts of law are scientifically legitimate” [28, p. 179, 191-193]. The realities mentioned by the Ukrainian researcher can be considered both as existentially independent phenomena, and as various manifestations of a certain single essence, a phenomenon of law subject to reflection in its concept. After all, Kistiakivskyi argued the following: “there is no doubt that there should also be such synthetic forms that would combine these concepts into a new type of cognitive unity” [28, p.195]. For his part, A. Yashchenko noted that “it is necessary to abando n artificial, albeit convenient monism from the very beginning and come to terms with pluralism, although more complex and difficult, but more consistent with a diverse reality” [29, p. 58]. At the same time, despite the fact that B. Kistiakivskyi and A. Y avienko put forward the task of combining “causal” and “teleological” interpretations of law, the problem of such a combination in a single concept and creating a certain “synthesis of multi - differences” in the legal understanding remains practically unresolved to this day.

In Soviet legal science, as is known, monistic epistemology and the corresponding approach to the knowledge of law prevailed. Therewith, in general theoretical legal science of the late 1970s - early 1980s, there was a discussion between supporters of two types of monism, which can be designated as synthesising and distinctively differentiating. The first was represented, in particular, by the positions of V. Nersesyants [30], and the second - by the opinions of S. Alekseev (1983) and P. Rabinovich (1979, 1981). Thus, V. Nersesyants, referring to the well-known expression of Karl Marx: “the concrete is concrete because it is a synthesis of many definitions, and therefore the unity of the diverse”, sought to develop a holistic Hegelian appr oach to understanding the essence and concept of law. According to V. Nersesyanets, theoretical legal science can exclusively refer to different manifestations of the same essence of law and offer different definitions of a single concept of law [30, p.26].

S.S. Alekseev, on the other hand, wrote: “attempts to construct a single multidimensional concept that would cover all the previously described meanings of law are hardly justified. On the contrary, a differentiated approach is needed, wherein in each case of employing the term “law” it is necessary to see the scientific status of the problem and, accordingly, correctly, scientifically accurately use the corresponding terminology and special scientific methodology” [31, p.116]. In contrast, V. Nersesyants was advocating for “...combining analysis with synthesis, complementing differentiation with integration of convergence from distinctive abstract definitions of law (by synthesising them) to its concrete concept” [30, p. 33] (at present, V. Nersesyants' approach is being developed by his students (V.A. Chetvernin et al.). A peculiar example of the development of a dialectical-materialistic approach to building legal understanding was the L.S. Yavich's concept of the multi-stage essence of law. Similarly to V. Nersesyants, the researcher believed that the essence of law as a complex and multi-level phenomenon is somewhat unique and inherent in many-sided manifestations of law [32]. At the same time, L.S. Yavich relied on the principle of contradiction, which served as a cognitive means of transition from one to another, a deeper moment of the essence of law. In this regard, the researcher believed that science can contain at least three different definitions of the concept of law, which reflect the essence of different procedures that unfold in the process of legal genesis [32, p. 45].

At present, the well-known Ukrainian legal theorist M.I. Koziubra is also asking questions about the synthesis of approaches to the knowledge of law, drawing attention to the complementarity of cognitive and value-based ways of mastering legal reality [33, p. 10-11]. It gives a negative answer to the question of the possibility of combining differing ideological and value methodological positions on which the three classical types of legal understanding are based, and to develop a single integrative (multidimensional) understanding of law on this basis: “These positions are so different, even antagonistic, that any attempts to overcome differences between them are doomed” [33, p. 20] (the authors of this study add: doomed provided that this refers to preservingthe differences in the initial principles of legalism, the sociology of law, and jusnaturalism (i.e., their identity), and, at the same time, about overcoming these differences in the act of integrating the mentioned types of legal understanding (i.e., accordingly, their non-identity). Therewith, M.I. Koziubra notes as follows: “if we abstract from the ideological attitudes on which the relevant concepts are based, and focus on the forms of existence of law, on which the attention of these concepts is focused, then its understanding as a phenomenon that exists in various manifestations, forms, and guises will undoubtedly be enriched. And in this respect, the synthesis of the achievements of these concepts is not only possible, but also necessary” [33, p. 20].

At first glance, there may be some inconsistency in the position under consideration. Thus, on the one hand, here, yet again, the pluralism of forms and manifestations of the existence of law as a single phenomenon is recognised. The synthesis of achievements in question actually involves not so much their fusion, but rather mutual complementarity. On the other hand, there is an obvious cognitive pessimism in the issue of theoretical and conceptual synthesis of conceptual approaches, since the contradiction between the identity and non-identity of the methodological foundations of legal concepts is insurmountable. However, it appears that this contradiction can be removed in the process of dialectical development of legal thinking. The idea of the unity of law as a polymorphic phenomenon, perhaps should suggest the possibility of synthesising specific conceptual foundations on which classical types of legal understanding are based [34]. And even though M.I. Koziubra leaves the question of the unity or multiplicity of concepts of law open, the thesis of the unity of the phenomenon of law with the multiplicity of its “manifestations, forms, and hypostases” seems to correlate in a certain way with synthesising monism in the legal understanding.

Notably, two different ontologies of legal reality - pluralistic and monistic - correspond to the distinction between two ideas about the universe - as a universe and a multiverse (H. Ortega y Gasset, M. Epstein). The latter idea correlates with the idea of a multiplicity of legal realities, legal worlds, the idea of a multiverse of law - as opposed to the idea of law as a certain formally and logically closed universe. The structure of the universe of legal realities appears as a multiplicity of figurative and conceptual distinctions that are not fundamentally integrated [35, p. 46-48]. And even theough the modern foreign research of the logical-positivist direction justifies the existence of pluralism of various logics is [36; 37], the sacramental question “Is an internally integral, and not a total integrative definition of law possible?” [2, p. 65], the authors of this study believe they one can only answer that the criteria for the integrity and organicity of the combination of features of law are beyond purely formal logic, and, apparently, beyond cognitive forms of cognition in general. Consequently, the tension between integrative concepts of understanding law and antagonistic “unary” (V.I. Kuznetsov) and discrete-monistic philosophical legal concepts forms two groups of cognitive attitudes. The first of these groups includes attitudes to a broad socio-humanitarian synthesis, bridging the gap between scientific and non-scientific knowledge, law-cognising optimism, universalism, and generally conciliatory intentions. The second category includes rationalistic scepticism, sometimes brought to agnosticism, multiversalist interpretation of socionormatics, distinctivism, relativism, and theoretical positivist purism.

The existing pluralism of integrity appears to be quite inevitable, given the fundamental impossibility (and, ultimately, the absence of the need) of combining “any and all” versions of legal understanding. Instead, it is possible to combine only their individual conceptual elements. Thus, sometimes the conceptual components of legalistic positivism are combined with individual semantic elements of jusnaturalism, which can be evidenced, in particular, by the concepts of “inclusive positivism” or “ethical minimum in law”. Next, the authors of this study address another point that concerns understanding the meaning of the concept of integrity. In most cases, the concepts of integrative orientation are based on an understanding that can be called unifying: this refers to combining two or more features of legal nature. A substantial disadvantage of this understanding is that it allows concealing the eclectic and mechanical nature of the combination of these features behind the appearance of a certain “synthesis”.

2.2 Integral human-centred legal understanding in the light of the dialectic of need-satisfaction

Therefore, it appears necessary to clarify the meaning of the attribute of integraty, which should be endowed with the legal understanding sought by many legal scientists. The authors of this study believe that such integrity, first of all, is the result not of an abstract logical-theoretical (often arbitrary) combination of some one-order conceptual elements, but, instead, a manifestation of activity-practical transformation, “humanisation” of natural and social reality in the process of human satisfaction of the most important needs of its existence and development. In this regard, it is the need-based approach that allows presenting social and, in particular, institutional and legal practice as the basis for integration, inclusion of certain elements (ideal or material) in such practice, their value and theoretical understanding. Secondly, it appears that the answer to the following key question should be decisive here: which phenomenon is integrated into the composition of another phenomenon, i.e., it becomes an integral component, an element of the latter? [38, p. 84].

The most common methods of constructing an “integral” legal understanding nowadays are two intellectual operations: the first is that from several long-known variants of multi-semantic legal understanding, certain attributes of the phenomenon are removed, wherein each of them is proposed to reflect the term “law”, and the second is that several such attributes are sequentially arranged in one sentence (most often separated by commas - as its homogeneous members), and the judgment obtained this way is declared an “integral” legal understanding. The eclecticism (mechanisticness) of such a set of features seems obvious - especially in cases where their selection and even the sequence of presentation are not justified in any way. In such a sentence, the noun certifies that meaningful, system-forming core, on which, as it were, various adjectives are strung, which specialise (diversify) the declared allegedly updated, “fresh” legal understanding. H owever, the above-mentioned core can usually be identified with one of the long-known classical variants of legal understanding, primarily with legalistic-positivist or with natural.

But the currently proposed integral version of legal understanding (according to such working titles as, for instance, “human-centred”, “human-dimensional”, “anthroposocial”, “anthropological”, “humane”) is built in a fundamentally different way, developed according to a different content criterion - the human-need one [38, p. 84]. In this regard, the authors of this study recall that according to the long-existing socio- materialistic need-based approach justified by P.M. Rabinovich, the term “law” should reflect certain opportunities to meet the needs of a person in their existence and development in society, predetermined by the achieved level of their development and provided by the responsibilities of other subjects of society. Therefore, the legal nature (pertinence to the law) of certain phenomena is determined by their ability to serve as conditions or means of satisfying human needs. This property of such phenomena is formed only in the process of social practice of people, that is, their interrelationships, interaction. Consequently, the law is a social phenomenon (and not, for instance, biological, chemical, cosmic). It, therefore, arises in the process of human social life, as a result of “meeting” of human needs with external phenomena that are capable of satisfying these needs. In other words, the process of need satisfaction involves the integration (inclusion, entry) of certain properties of real phenomena (both natural and social) in the existence of human individuals and their groups. And then such properties, having acquired (in accordance with the specified legal understanding) a legal nature, are immersed, embedded in the very existence of a person, which, thanks to this, is improved and optimised. Therewith, the satisfied need of a certain person disappears (at least temporarily), but the ability to serve the satisfaction of similar needs of other people remains a corresponding phenomenon in the future, and this is considered as the general, i.e., normative, nature of such opportunities. Thus, human rights as its certain opportunities are realised, used by it, becoming a necessary, natural component of human existence. An adequate reflection of such a situation can be the terminological expression “law in a person”. This gives grounds to consider the need-based legal understanding to be integral, i.e., it is a person who is recognised as the system-forming core generating the legality of certain phenomena as necessary tools for satisfying one's ontological, existential needs - phenomena that are integrated into the existence, life activity of a person in society. The human-need interpretation of the integrity of legal understanding proposed herein can, admittedly, be the subject of further discussion. However, be that as it may, the humanism and humanocentrism of such a legal understanding appear to be implicit [38, p. 85].

The possibilities of conceptual integration and the viability of the synthesis of various elements and foundations of various concepts of legal understanding directly depend on the performance of several conditions: the distinction of integrity as an organic integrity, on the one hand, and mechanical, eclectic, and semi-random combination of elements - on the other hand; understanding the idea of integrity from the standpoint of dialectical logic, in particular with the reliance on the principle of contradiction as the fundamental law of social development, the principles of identity of being and thinking, unity of logic and historical, theoretical, and practical [39, p. 211-232; 40].

CONCLUSIONS

The prospect of integrating different legal understanding is a task that can be performed based on dialectical, and not formal logic, while preserving the differences and contradictions between the combined conceptual elements, the synthesis of which becomes possible based on the dialectic of the existing and the due both as content and form, essence and phenomenon. At the same time, insurmountable methodological limitations on the path towards building an integral legal understanding are the fundamental inconsistency of umerous methodological approaches, such as, in particular, state-legal monism and legal pluralism, value-normative absolutism and relativism. Scientific-positivist consideration of socionormative phenomena is difficult to combine with syncretism of value-coloured legal representations that seek to cover substantially different quality phenomena: this is how the tension between the ideas of complementarity of contradictory positions, wherein each of them retains its meaning and its scope of application, and such an integrative project, wherein individual combined elements “dissolve” is revealed. Given the possibility of combining only individual conceptual elements in different versions of legal understanding, but not mutually exclusive methodological approaches to understanding law as such, pluralism of integrals in legal exchange is inevitable.

Recognition of the existence of a multiverse of legal realities as their differentiated multiplicity makes possible the coexistence of various concepts of law, each of which, in turn, can be the result of a synthesis of legal features. Although there may be a certain complementarity relationship between such concepts, these concepts nevertheless remain autonomous and non-integrated. The meaning of integrity in legal understanding is most fully and adequately expressed by activities to meet human needs - social practice. The latter can reveal the semantic objectivity of integrity, cover the social and individual significance (utility or harmfulness) of a particular combination of conceptual elements of understanding law to meet the needs of human existence and development. It is in the process of need satisfaction that the humanistic understanding and activity transformation of natural and social phenomena takes place, the integration of their certain propert ies into human existence, their acquisition of the status of vital, and therefore statutorily significant components of this process. Thus, legality becomes the result not of an a priori or abstract-theoretical, but of activity-practical - meaning-making and meaning-converting - integration of the phenomena serving as integral components of human existence in society.

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