Antinomies of legal thinking
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Abstract
The article discusses certain ways of jurisprudence thinking, which cause logical paradoxes. These are the cases when in Constitutions or in other legal acts, the protection of adequate values of human beings is established progressively (though human rights) and at the same time directly, when the right is equated to a social relation with its objects (biological, social, psychological reality), when reflex concepts are being created and „absolute rights” are being operated, concepts too abstract, when subjects of law are being geminated and common and individual legal regulation levels are being equated in the concept of law enforcement, and when law as relatively independent regulator of social relations is being ignored.
The necessity to establish the protection of human values in Constitutions not directly, but through human rights protection (progressively) rises from the equality of all subjects of law and from law as the relation of reciprocal obligations, which is based on the unity of permissions and orders and which obliges every holder of human values to recognize the same values of another person and thus restrict own behavior in their respect. In the opposite case, protection of human values would become too independent from the behavior of the holder of these values and thus would transform into a source of uncontrollable aggression. This is demonstrated by the legal problems arising after the abolishment of death penalty and entrenchment of direct protection of human life.
Legal paradoxes of another type arise from used concepts that are too abstract, and their content is not revealed (e.g. the equation of constitutional legality and constitutional justice), when the solution of a legal problem is based on non–legal arguments (replacement of law as relatively independent legal regulator with economic regulators), and when the subjects of law are geminated (the issue of unborn life as a subject of law).
The necessity to establish the protection of human values in Constitutions not directly, but through human rights protection (progressively) rises from the equality of all subjects of law and from law as the relation of reciprocal obligations, which is based on the unity of permissions and orders and which obliges every holder of human values to recognize the same values of another person and thus restrict own behavior in their respect. In the opposite case, protection of human values would become too independent from the behavior of the holder of these values and thus would transform into a source of uncontrollable aggression. This is demonstrated by the legal problems arising after the abolishment of death penalty and entrenchment of direct protection of human life.
Legal paradoxes of another type arise from used concepts that are too abstract, and their content is not revealed (e.g. the equation of constitutional legality and constitutional justice), when the solution of a legal problem is based on non–legal arguments (replacement of law as relatively independent legal regulator with economic regulators), and when the subjects of law are geminated (the issue of unborn life as a subject of law).
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
