Методологія фактичності в загальній теорії права та деякі незручні питання до неї

Abstract

The article presents research of the problems arising under methodology of national general theory of law. The problems arise under dominance of empirical and naturalistic scientific tools whose cognitive ideal lies in scientific rationality, the tools bringing knowledge out of the scope of facts perceived via experience. An example of this methodology in national juridical studies is the “needs-based” approach presented by P. M. Rabinovych, a famous theoretician. It is emphasized that the methodology of facticity has some typical drawbacks whose highlight presents a part of the goal of the present work along with justification of underestimated possibilities of the idealistic methodology. It is emphasized that the needs-based approach presented by P. M. Rabinovych is the outcome and a variation of more general methodological concepts and theories of empirical and naturalistic character. The article describes the drawbacks typical thereof, in particular interpretation of socio-political reality as facticity, rejection of a priori irrational fundamentals in the phenomena of state and law as well as inability to resolve the main problems of moral consciousness and moral and ethical philosophy. The article defines the boundaries of empiric methods’ cognitive possibilities based on the methods and techniques of scientific rationality. It is emphasized that in the field of socio-political phenomena, i.e. in the field of the morally obligatory, which is also constituted by value-necessitated fundamentals as well as by irrational ones, scientific rationality preaching the values-neutral approach becomes incapacitated. Therefore, it is impossible to rationalize the methodology of social and juridical sciences to the fullest extent. This drawback can be eliminated by the opposite methods of idealistic character resulting from acceptance of irrational and a priori fundamentals in the phenomena of state and law. Among these methods are the teachings of unbiased idealistic character, such as Christian idealism or the teachings of biased idealistic character, such as existentialism, the dynamics of the theory of law, the temporal theory of law and the communicative theory of law. The author makes a conclusion that development of those methodological concepts is a promising strategy for further research in general theory of law aimed at eliminating the dominance of the empirical methodology of facticity.