Problems of Harmonization of Positive and Social (Pre-positive) Private Law

Abstract

Under the materialistic theory of law, positive law is capable of acting as a valid law not in any act of lawmaking, but only in an act, and to the extent, where it is consistent with universal principles of objective law: interdependence, equality, equivalence and free will. These principles taken together form the essence of the legal form of the first economic relation in the history, i.e. exchange, and of modern production, distribution and consumer economic relations. Contemporary law, like law at all previous stages of historic development, is valid provided that it possesses all the fundamental features of the legal form of economic relations. Otherwise, positive private law amounts to the transformed form of law. The society, its members refuse to abide by any law constituting a transformed form of law that prevents them from satisfying their interests and creates new legal norms. Rules of law established by the society constitute a pre-positive law - a set of rules of effective private law that are formed in order to fill in the gaps in existing legislation and that are exercised in specific legal relations until those rules are entrenched by positive law. In order to democratize legislative process and speed up transition of prepositive rules into positive law, we believe that the institutions of direct democracy need to be considerably expanded, and that proper conditions should be created for the people to determine its own political system, rule of law and the way of further development of its civil society and form its rule-of-law state.