In search of the last abstraction of civil law

Abstract

This publication was intended to be a regular review of an extremely informative book written by S.V. Tretyakov. Nonetheless, since the book poses important ontological and legal issues, the author focuses in this essay on methods of scientific research that are inherent to legal philosophy, particularly legal ontology. S.V. Tretyakov, in his quest to find “the last abstraction of private law” (A. von Tuhr), discovered what can be designated as universal categories of private law, including a subjective private right, which is at the heart of a will theory perspective on subjective rights. The article argues in solidarity with the book’s author that civil law methodology needs to be supplemented by the methods of knowledge intrinsic to the ontology of private law. A legal philosophy in this context should be considered a collection of mainly artificial, imaginary, and sometimes fictional ideas denoted by the polysemantic and inclusive Latin word “ars” (jus est ars...). A combination of private law ontology and a will theory, exemplified by Hegel’s aphoristic statement that lawyers think in terms of will, led the author to conclude that the ultimate abstraction of civil law is free will, which implies both dignity and autonomy of the owner of a right.