Принцип верховенства права як концептуалізація правового об’єктивізму та його заперечення

Abstract

The article highlights the problem of objectification of law arising in the context of the mostly widespread formally oriented version of the principle of supremacy of law which accentuates the idea of the rule of objective law instead of the rule of judgment-based will of interpreters of law and law enforcement officers. It is emphasized that the ontology of evenhandedness is based on understanding of law as a closed system of non-biased tenors seeking absolute completeness of social norms assigned by the social authority. If worst comes to worst, such a system envisages elimination of possible gaps with the help of tenors found with the help of purely logical methods applied by the system itself. The methodological source of the program of law as a closed system is the idea of mechanical application of standards, which includes evaluations made by interpreters of law and law enforcement officers. The article demonstrates the methodological genealogy of formal objectification of law going on in various socio-legal concepts, such as legal positivism, conceptual jurisprudence and the historical school of law – all of them being based on the methodology of the so called social physics (17th century) that sought to transfer cognitive tools of mechanics to the field of social sciences. Methodological opposition to formal objectification of law is presented by society-oriented teachings constituting the school of free law. They erode understanding of law as a self-reliant closed system of objective rules and concepts and permit construction of legal tenors in the process of interpretation and enforcement of law. These theories are accepted in the western doctrine and in case law. But they are not widely presented in the national science, in particular in dynamic and temporal theories of law. In complicated cases they provide the national law enforcement officer with an alternative in search of a decision under the conditions of legal ambiguity. It is revealed that the principle of supremacy of law determines extremely strict categorical requirements on non-deviation to enforcement of law. The ideal of legal objectivism specified in the principle of supremacy of law as the rule of law, not the rule of the individual, conforms to the popular understanding of the appropriate mechanism of law enforcement. However, it accepts exceptions when it comes to construction or sophistication of a particular legal tenor made by a law enforcement officer. These exceptions need careful handling.