Comprehensive approach to perception of law in the context of doctrinal views

Epistemology of law or legal epistemology contains various paradigms of legal thinking, studies legal thinking, based on the structure of legal knowledge, studies the theory of law, and is a metatheory of law. Since it exists not only as a result of cognition of law but also as an element of the inner world of a person, as legal consciousness, legal archetype, legal intuition, etc. [7, p.65]. It is advisable to identify the similarities and differences between the comprehensive approach and the comprehend theory of cognition of law. Since commonly the approach, as a complex of paradigmatic, syntagmatic, and pragmatic structures and mechanisms of cognition, is identified with theory, that is, a system of scientific ideas, principles, conclusions, etc. In other words, the approach is a kind of tool for developing a theory.

The subject of the theory of the comprehensive study of law covers regularities of dialectical essential differences in law and legal existence; regularities of influence on an adequate and objective assessment of law and legal reality of extraneous factors (such factors include economics, politics, ideology, the role of the head of state, etc.); prospects for the development of law in the context of legal reality [2, p. 11-12].

One of the most pressing problems of the philosophy of law and the theory of state and law is solving the issues of gradually overcoming the considerable gap between theory and practice, between the declarative provisions of laws and their real implementation. Sometimes the philosophy of law is considered exclusively as a branch of knowledge that has no direct access to legal practice. It is worth recalling that Kant, when defining law as the result of the work of “pure reason”, did not deny that the “law” is aimed at practice [3, p. 59].

To cover the comprehensive approach, it is necessary to conduct a rational reconstruction, which has certain stages. First, it is an informal clarification of the approach, which seeks to clarify it as accurately as possible, that is, to explain the content, referring to the practice of using it in different contexts. The second is to develop a more accurate system of views than the previous one to formulate the largest number of universal statements.

The new understanding should be similar to the previous one in the sense that it can be applied in most situations in which explanations are used, and be as simple as possible [8, p. 7].

It is worth noting that the comprehend theory is not an integral theory of law. As is known, the term “integral jurisprudence” originated in the United States. The founders of the integral theory of law are famous American researchers Harold Berman, Jerome Hall, and Ronald Dworkin. Thus, H. Berman asserted that integral jurisprudence should unite three classical schools: legal positivism, the theory of natural law, and the historical school. Integral theory “is based on the belief that each of these three competitive schools has identified one of the important dimensions of law, excluding others, and that the displacement of several dimensions in one focus is, firstly, possible and, secondly, important” [9, p. 340].

Approaches to the law are not limited to legal positivism, the theory of natural law, and the historical school.

This means that the construction in this form is doomed to failure: combining only these theories will be incomplete. Although H. Berman called his integral theory philosophy, it was legal theories that he tried to combine. It is not surprising that lawyers began to develop an integral theory of law mainly within the framework of the general theory of law. The integral theory of law unwittingly became a legal and limited framework of the general theory of law. Philosophy, on the other hand, does not tolerate restrictions in views and concepts. There is no reason to agree with the proposal to combine the “best” of the available theories into an integral theory [1, p. 8].

Based on abstract considerations that contrast always good law with often bad law, it is difficult to formulate any specific recommendations for a modern legislator who fundamentally recognises the ideas of freedom, equality, and justice but does not in all cases know how to implement them in legal regulations. Furthermore, from the standpoint of the proponents of this concept, the opposite ratio has completely befallen - a good law and a shaky, unsecured, and therefore bad right. An example of such a correlation is the inability to exercise this right due to the lack of a legislative definition of the procedure for it [10, p. 9].

Pearson and G. Cervetti. According to the researchers, text perception during reading and memorisation are the main basis for comprehension. While the essence of perception is a comprehensive understanding of the relationship between the text, its structure, and ideas. Therefore, only a comprehensive approach allows understanding the meaning of what is written [14, p. 4]. Furthermore, as noted by E. Kessler, an individual characteristic such as epistemic beliefs (prior knowledge), affects the metacognitive processes associated with understanding multiple texts, considering previous knowledge [15, p. 6]. Based on the subject of this research, some practical issues related to the need to apply a comprehensive approach and updated by the recodification of the civil legislation of Ukraine, initiated by the government back in 2019 are considered. It seems that the poor placement of words in sentences of the text of legal regulations has become a daily occurrence. Even in codified laws, such shortcomings are common.

There are even more of them in other laws and bylaws. Each time such shortcomings are identified, it becomes necessary to use adequate means of interpretation to ensure the relevant provision of the legal regulation reasonable content. In the Civil Code of Ukraine [24], an error in the placement of words in a sentence was already made in part one of Article 1: “Civil legislation regulates personal non-property and property relations (civil relations) based on legal equality, free expression of will, and property independence of their participants”.

Syntactic interpretation of the above legislative provision gives grounds to conclude that all personal non-property and property relations are civil, yet civil legislation regulates solely such relations that are based on legal equality, free expression of will, and property independence of their participants. This contradicts the classical ideas about civil relations, which are recognised all over the world, and leads to uncertainty in Article 2 of the Civil Code, which establishes the circle of participants in civil relations. Only a systematic interpretation of Article 2 of the Civil Code, its comparison with the provisions of the Civil Code that define the civil legal personality of individuals and legal entities, the state, the Autonomous Republic of Crimea, and territorial communities gives grounds for concluding that the persons listed are participants in those civil relations that are regulated by civil legislation [16].

The rule of law is fundamental to citizens' participation in governance. Government structures initiate the process of solving public problems and act as an intermediary, giving society the opportunity to act independently. Thus, the state only sets limits of responsibility for all its citizens and promotes the development of civil and business activities.

The German model of reforms can be called conservative, since it is based on an awareness of the identity of the national administrative culture, qualified as a “culture of statehood”, as opposed to the “culture of civil society” characteristic of Great Britain. Germany seeks to preserve the Weber tradition of rational management as the rationality of laws, plans, and instructions, while reformers gradually introduce elements of new management concepts [17, p. 564].

Proponents of the distinction between law and legislation did not consider that law differs from the legislation by its ability to be exercised in specific legal relations, in the rights and obligations of members of society, and therefore the law cannot embody excessively general formulations (good in design) of the legislation, do not have a developed mechanism for translating them into specific legal relations. In addition, the implementation of one or the other has also completely disappeared from the field of view of proponents of the distinction between law and legislation, because, in their opinion, the law is the ideas of freedom, equality, and justice, and legislation is texts that may contradict these ideas [20, p. 307-308].

It is advisable to recall the Constitution of the USSR of 1936, which declared such constitutional values as freedom, equality, and justice to disguise disenfranchisement and terror.

The creation of legal provisions is of a legal character, which determines the need for the legal regulation of its mechanisms. Law-making without such mechanisms seems impossible. The most effective indicators of legal regulations of the Cabinet of Ministers of Ukraine are quality; availability of a really certain volume and sources of material and financial support, a real mechanism of legal support for the implementation of regulations in everyday practice; the quality of law enforcement and the legality of the behaviour of direct participants in regulated social relations; a high level of legal culture of citizens and society in general [18, p. 443].

Dogmatic legal knowledge is not derived from reality, but formats reality based on an ideologically defined idea of its place and role in the practice of legal organisation of public relations. The “reasonable” law of subsequent epochs was not so definite in likening man to cattle and did everything to obscure the exploitative essence of the existing legal relations, to perceive formal equality for equality in general, etc. From the standpoint of the ruling elites (classes), this was reasonable, and this “reasonableness” was fully consistent with the uncertainty of legal regulation. Uncertainty, in this case, can be presented as a positive phenomenon, which would be strongly opposed, but the characterisation of law in the categories of will and interest, service and benefit organically implies the need in fundamental cases to conceal the true content of provisions and, as a result, to maintain uncertainty. Only an openly dictatorial, tyrannical regime can reject guile and understatement [21, p. 44-45].

It is necessary to review the mechanism for ensuring the status of the Civil Code of Ukraine as the main regulation of civil legislation of Ukraine. Obviously, the mechanism set out in Part 2 of Article 4 of the Civil Code of Ukraine [22] was ineffective: the text of the Civil Code of Ukraine was amended without considering the specific features of the mechanism of civil law regulation of such relations in Ukraine. This may be necessary to implement the idea of dividing laws into ordinary and constitutional ones, to refer to the codes as the main regulations of various branches of legislation to constitutional laws. However, without appropriate amendments to the Constitution, such an idea is impossible to implement [23, p. 110].

Considering the commitments made by Ukraine under the Association Agreement with the European Union in the field of legislation on the establishment and operation of companies, corporate governance, to create a fully functioning market economy and stimulate trade, Ukraine and the EU agreed to cooperate, in particular, to protect the rights of shareholders, creditors, and other interested parties in accordance with EU requirements.

Therewith, the regulation of the activities of legal entities (the so-called “business entities” in the Commercial Code of Ukraine do not correspond to any of the concepts of legal entities depicted in the Civil Code of Ukraine and generally accepted practice and EU standards in this area. In such circumstances, it is advisable to harmonise the legislation of Ukraine in this regard with European approaches to regulating the institution of a legal entity [24, p. 108].

The one-sidedness and inaccuracy of the approach to the law are also characterised by the “connotation of a good phenomenon in relation to a bad law” [11, p. 80]. Thus, according to the Constitution of Ukraine, a person, one's life and health, honour and dignity, inviolability and security are recognised in Ukraine as the highest social value. The establishment and enforcement of human rights and freedoms is the main responsibility of the state. Indeed, there are no complaints about the laws, all of them comply with the Constitution of Ukraine, fulfil its idea of the highest value of human rights.

Thus, if a right that everyone should strive for is created, it is still wrong to reduce it to such a form as freedom, equality, and justice. Moreover, their exact definition is an overly complex philosophical question. Without a doubt, the law is an important and necessary phenomenon of public life. Yet other phenomena are also equally important - spirituality, culture, economy, digitalisation, etc.

It is shown that the methodological value of the comprehensive approach as a kind of tool for the development of theory consists in the objective, real, non-idealised, and de-ideologised cognition of the law. Therewith, it is unacceptable to recognise the predominance of a certain concept or theory. The construction of law by combining the integral theory of law and the theory of natural and positive law is incomplete and incorrect. Since law is not limited to these two theories. Such perception of law is one-sided, and therefore biased.

The more objectively the law is assessed, the quality and effectiveness of its provisions, the faster it is perceived (becomes known). To achieve objectivity and completeness, it is advisable to study the law with an asessment of its negative features. Arguments are given regarding the practical value of the comprehensive approach in legal technique when the law is assessed depending on the completeness of its implementation and during the achievement of legal certainty. The legal level in various legal systems is different.

Proper law mainly exceeds the mechanical totality of the legislator's will, natural law, ideal provisions, social facts, psychological phenomena, etc. Thus, it is incorrect to formulate a definition of the general concept of law solely on the principle of will, freedom, restriction, or prohibition.

It is proved that one-sided and uncritical cognition of law contradicts the very essence of science and inevitably leads to its erroneous interpretation. There is a lot of idealism in the proposed modern concepts (natural, liberal, integral, etc). However, humanity has not yet succeeded and will undoubtedly not succeed in creating an ideal society soon, even absolutely just. Outside the ideal society, models of idealised law are not fully implemented. European and national theories can develop based on a monistic understanding of the law, in the aspect of a synthetic approach, considering the fact that monistic theories offer a one-sided cognition of the state and law. Attempts to study law from a monistic perspective do not give complete results.

This study does not allow covering all aspects of the comprehensive approach to the perception of the law. Notably, the comprehensive approach recognises the existence of different centres of legal experience. The starting point of the research perspective on the stated subject is the question of applying a comprehensive approach in legal monitoring of law-making and law enforcement.