SOCIO-CULTURAL FOUNDATIONS OF LAW

Abstract

The reasoned discourse on cause-effect relationships, functional mission and duty of the law is possible only through the clarification of the ontological foundations of law. Because these foundations of law determine the consideration and evaluation of each status quo under a certain criterion, determine the degree of effectiveness of different instruments and the feasibility of their functional correction. A conceptual version focused on the socio-cultural foundations of law cannot be original, since it is a rather obvious conclusion. Focusing on socio-cultural preconditions of the emergence of law is further problematized by the fact that virtually every phenomenon that functions in a social environment is one way or another socio-culturally predetermined. However, focusing on the socio-cultural foundations of law is quite appropriate, since legal processality not only has formal features of correlative compatibility with the socio-cultural environment – it is a logical consequence of concrete historical conditions in the socio-cultural environment, therefore, the correspondence of the content and priorities of socio-cultural reality is extremely important for the effective functioning of the law. It is determined that the view of law as an embodiment of justice introduces an element of fundamental distinction between laws that may not always correspond to the canons of justice. In view of this peculiarity, the approximation to the ideals of the rule of law is determined not by the number of laws passed, but by their compliance with the requirements of justice. In addition, it should be understood that the existence of laws and other forms of law is not a tangible testimony to the existence of law as such (meaningful substance of law), because laws can be both legal and non-legal – a form of legalized arbitrariness. Unlike unlawful law, a legal piece of legislation in its key aspects always meets the requirements of fairness in a particular society. It is concluded that the law can also be (and often is) the result of political conjuncture, lobbying, corruption, the overriding of group interests and other phenomena and processes that are either de facto or substantially contrary to the majority’s view of justice, or generally categorically incompatible with such an idea. Therefore, the sacralization of the law, stereotyped at the level of the media and the general public sphere, is obviously too populist, and therefore legally and purely formal and logical, inappropriate, because it inadmissibly ignores many essential “buts” that induce the law by discursiveness, by discursiveness which relies on repressive coercion.