Right and Law: The Necessary Dualism

Abstract

The article is devoted to the analysis of the relationship between right and law. The author identifies four types of understanding of right: positivist, natural-legal, general social, and the point of view of educational literature. These four types belong to different paradigms of understanding: the philosophical one (theory of natural right) and the legal one (three other points of view). The philosophy of right as a purely philosophical and not a legal discipline uses a philosophical approach to the substantiation of the essence of right. Its fundamental thesis: it is impossible to prove the claims of the right to general validity and obligation if we use the framework of jurisprudence only. In this regard, the statist positivism is subjected to sharp criticism as a theory that rejects the essential difference between right and law and identifies right and law with the activities of the state alone. In philosophy, the right is understood as a system of values that includes fundamental moral and legal ideas and principles. The difference between right and law, their necessary dualism lies in the difference in their genetic nature. The right consists mainly of values that are inherently regulative, whereas the law is a set of norms that have a constitutive essence. This distinction between values and norms and, therefore, between the regulative as such and the constitutive is precisely the philosophical basis for the distinction between right and law. The essence of the regulative as such is based on ontological attitudes of consciousness, which are a priori in their origin. The article concludes with a classification of the functions of right with regard to law.