Essence of law

Abstract

The author reflects on the dangers of unlimited rationalism in the understanding of law, as well as the individualistic understanding of human rights. Both are connected with the separation of law from its religious and cultural roots. At the same time, both are further exacerbating the negative consequences of this process. These negative aspects include the perception of law making as a purely technical process involving development and creation of a new “product”; an increase in the gap between laws and ethical rules which are of great importance to most people. Meanwhile, law, morality and religion constitute an interrelated set of social norms. Therefore, separation of law from morality sharply reduces the effectiveness of legal norms. The author justifies the need to revise the liberal-individualistic understanding of law — based on “post-secularism” (concept proposed by Jürgen Habermas) as a new comprehensive discourse for the dialogue between religious and secular consciousness. There is a need to develop a new version of jus naturalism to synthesize the ideas of individual freedom and social solidarity. The author believes that a stereotyped idea of solidarity as an authoritarian ideology should be reviewed. Only in this way it is possible to overcome the difficulties faced in practice by the concept of multiculturalism which combines the ideas of liberalism and communitarianism. However, salvation consists in strengthening the solidarity platform of human rights rather than in granting special collective rights to ethnic and cultural communities. These principles presuppose limitation of human rights for preservation of the mankind. The author proves that in the international sphere a new approach will help states to defend their constitutional and legal identity, to restrain the activism of supranational regulators. Referring to the latest examples from the case law of the Constitutional Court of the Russian Federation, the author emphasizes the importance of maintaining a balance between susceptibility of the national legal system to external influences and its resilience, the ability to protect the national public order which includes, among other things, human rights guarantees.

Keywords:

political context of law, cultural context of law, philosophical context of law, theological context of law, rationalism, individualism, post-secularism, jus naturalism, solidarism, limits on human rights, multiculturalism, constitutional and legal identity, activism of supranational regulators, the principle of bona fides for the implementation of supranational jurisdiction