Mutual Transition, Spiral and Evolutionary Development of
Single Positive Law and Plural Normative Order Related to the
New Comparative Normative Order Study in the Context of
Global Conflicts Resolution
Abstract
We the people of the world need a new human philosophy which links the East and West, North and South, ethics and religions, public and private life, technologies and environmental protection in the contemporary world. Oriented on Human Rights values the paper tries to show the methodological perspectives that can evoke us establish the universal elements in different cultures and ways of harmonizing them for the purpose of retrieving human freedom and human creativity as the basis of sustainable development of humankind and building of peace on the Planet.
I. Legal Monism (Public Positive Law and Private Positive Law) indicates how natural and legal persons ought to act ideally. Normative Pluralism (Public Normative Order and Private Normative Order) shows how public bodies, and natural and legal persons acts really. Legal Monism (what ought to be) and Normative Pluralism (what is) never coincide.
II. Theory about mutual transition, spiral and evolutionary development of positive law and normative order taking of any contradiction between them and making possible peacefully coexistence of positivism and sociologic directions in jurisprudence, and creates balance between public law and private law, and public normative order and private normative order on the global, regional, national and local levels.
III. The “legal families” theory of Comparative Law ignores the phenomenon of normative order. So it is necessary to introduce a new branch of legal science: Comparative Normative Orders Study.
IV. The Idea of Just Law suggest what sort and kind of law legislators (in Roman-Germanic i.e. “civilianist” legal space) or judges (in Anglo-American, i.e. common law legal space) should make, so that law would be just from the Universal Human Rights.
V. The Mutual-Transition of Legal Monism, Normative Pluralism and Idea of Just Law must be based on the Universal Human Rights Law as Basic Norms’ Entity, and this process must be repeated dialectically, i.e. spirally, constantly, evolutionary and endlessly.
My scientific position warns us never to absolute any theory of law. It gives us the universal key to open the door in world, which could be equally acceptable for different cultures. It is not a new intercultural theory of law. It is a new philosophy of law based on the Universality of Human Rights and Freedoms.
Professor, Dr., Ph. Dr., Bizina Savaneli
Department of Law at the St. Grigol Peradze University,
4 Politkovskaia str., Tbilisi, Georgia
Mutual Transition, Spiral and Evolutionary Development of
Single Positive Law and Plural Normative Order Related to the
New Comparative Normative Order Study in the Context of
Global Conflicts Resolution
Professor, Dr., Ph. Dr., Bizina Savaneli *
Department of Law at the St. Grigol Peradze University,
4 Politkovskaia str., Tbilisi, Georgia
“To do just law makes a dry tree green”.
- Shota Rustaveli (XII Century)
I. Globalization in modern world reflects such transnational factors which have never been exist in the history of mankind in widespread aspect: Islamofobia and Judafobia, European Union and NATO, World Bank and IMF, International Drugs Network and Terrorism, Internet and E-mail, Global Warming and Ozone Depletion, Deforestation and Marine Pollution, Israel, USA, UK and Arabs, Monopolization of World Economics and Extreme Poverty, Contraband Armaments Traffic and Unregulated Financial Transfers, Amnesty International and Greenpeace, Coca-Cola and Macdonald’s, Exhausting of Non-renewable Earth Resources and Neo-colonialism, Corruption and Illegal Human Trade, International Trade Union Organizations and Transnational Woman’s networks, ”Black Africa” and ”Yellow Asia”, Catholic Church and Russofobia, Ethnic Conflicts and the vast herds of Displaced Persons, Growth of Racism and Ethnic separatism, and a cross-syntez of above mentioned realities in combination with other factors.
In 1994 I had warned about the Islam fundamentalists attack on the parallel of 38. By the way, Washington and New York are near the area of parallel 38 (!)... Madrid is located on the parallel 38... New danger is issuing from the parallel 38 between North and South Korea. 1
Prevailing notions of public international law for long time do not appear ill suited to finding adequate solutions for the myriad problems that are transnational in scope. Modern international law seeks to subsume the individual interests of the states under the general interests of common good. That’s good. But common good of governments means nothing if the citizens of the state have remained in extreme poverty, and if their civil and political rights are under systematic and serious violations. The most people of the countries, except European Union, USA, Canada and few others, live under such conditions.
According to Epping, the individual has no legal capacity in international law because he/she does not participate in the norm-setting process. He/she enjoys his partial legal capacity through his/her state of nationality.2 Legal capacity to participate in the norm-setting process partly has only some international NGOs but their legal capacity has been bound by consultative status.
In the framework of International law has been established comic situation: the fact is that the principles of Human Rights are created by the states as the potential violators of Human Rights. States mainly act, not only out of respect of law, but also and very often, primarily in their “best” political interests. Recent actions UK and US are the best examples of such situation, say nothing about 50 years occupation Arab territories by Israel. Annual reports of Amnesty International and Human Rights Watch clearly indicate on this comic situation. In Asia and Australia region, where meaningful political organization like Council of Europe, Organization of American states, organization of African Union are failing, and there is a conspicuous lack of corresponding human rights conventions and charters. If a state is not fulfilling responsibilities or is actually violating Human Rights, a curious situation arises as to the standing of the other contracting parties in securing from the detracting the observation of its obligations. The principle of state immunity, non-intervention in domestic jurisdiction of state, freedom of contract and the consensual nature of proceedings before international tribunals weakening a protection of Human Rights.
The fact is that only the Europe could reach partly the progress in this field especially after the adoption of Protocol 11 ECHR. The rest world remained without any efficient mechanism of responsibility of states before the individuals. ICJ for Rwanda and Yugoslavia is an exemption, not a rule.
Absent of World Court of Human Rights like European Court of Human Rights make completely unable international mechanism of protection of Human Rights in rest of the World and create endanger Peace in whole. Thus the most population of the world, especially developing countries have remained without efficient protection of their fundamental rights and freedoms. In such situation population of developing countries enforce to use action popularize like revolution, reveal, terrorism and other criminal actions. Despite greater homogeneity in regional human rights arrangements, states still show some reluctance in litigating against each other. However, that the individual can have both the procedural capacity to exercise those rights and legal capacity to possess same in international law has been affirmed by the prominent scientists like H. Kelsen and I. Brownly. 3 Some authors interpret such position as an argument for the recognition of individual as a subject of international law. But those authors ignore that above mentioned scientists emphasize that: “…the individual “can have procedural and legal capacity”, (but not “has”).
Actually, if we remain the individuals in the framework of international law (exactly inter-states law), individual may exclusively consider as an object not a subject of international law, because in any case state and individual are not and not may be equal subjects of international law. But if we consider the individual and state in the framework of Universal Human Rights Law, they may be considering as equal subjects of Law. Universal Human Rights Law contents inter-states agreements, which are unilateral and not dependent on other initially corresponding rights and obligations among states under international law. At the same time Universal Human Rights Law has a self-obligatory to the state character relates any individual (not just the citizens) inside of territories of the appropriate states.
The Natural Law heritage means that the International Human Rights instruments do not create Human Rights of individuals and respectively obligation of states, they merely recognize them. But that does not mean that if human rights are inherent in nature, they should enjoy inviolable status. Declarative recognition of Natural Human Rights and respectively obligation of states in the Human Rights instruments nothing without adequate mechanisms of their protection.
I certify the fact that the problem to which really faced humankind today is following: Human Rights are de facto not Universal. For resolution of that problem I invites to a fundamental rethinking of our modern state and our modern concepts of Law. In 1993 I indicated on Anthropological Catastrophe underling the following: “Our planet is sick, and its symptomatic treatment will not give us any results. It’s necessary to look for the deep-remote reasons of the sickness that are settled in unconscious layers of brain as a result of development of mankind’s hardly-controllable aggressive inclinations into social stereotype. We are speaking about anthropological catastrophe, about the circumstance that the human being is not formed still as a “human being”. The progressive representatives of the humanity were trying to embellish the facade of humankind society with ideological myths to change the vampire’s face at least outwardly. But without substantial results.” 4
Follows to Cant’s idea in “Perpetual Peace” (1795) we have to reject a centralized regime of world government on the grounds that it would either be a global despotism or else an unstable and fragile empire torn by civil strife. This is a quite different point of cosmopolites’ argument that any donation political order needs to be set in a wider, transnational or global context. The world without borders is a new fascism.
Can rule of law serve to the global conflict resolution?
In his famous lecture given in Vienna in 1888, Ernst Zitelmann, professor in Bonn, exhaustively discussed the possibility of the World Law.
This lecture was published in the next year under the title of "Die Moglichkeit eines Weltrechts". (Vortrag, Gehalten in der Vollversammlung des juristischen Gesellschaft zu Wien am 20 Marz 1888). It is interesting to note that in the same year, Julis Ofner gave another lecture entitled "Der Grundgadanke de Weltrechts", later published under the same title by Alfred Holder (Wien, 1889). Ofner did not discuss the question of a World Law as Zeitelmann did, but discussed the fundamental issue of the World Law.
I remember that R. Jehring lamented the fact that the traditional jurisprudence did not go beyond the framework of "Landes jurisrudenz" and did not study the problem of law in the light of its universal character. I may also mention the names of eminent jurists who discussed the universal character of law, such as Kohler, Saleilles, Lambert, Vinogradoff, Pound, Wigmore from the point of Sociology of law or the comparative law; Kohler, Berolzheimer, del Vacchio from the point of the history of law or the legal doctrine; Carthrein, Mausbach, Schillind, Petraschezki, Rommen from the point of the natural law. These scholars certainly contributed to the idea of World Law from their respective legal expertise.
But Law as such is not a universal phenomenon, as demonstrates in his “thesis of non-universality of law” S. P. Sinha. For Sinha, “Law” cannot be equated to social organization but is only one particular form of it, developed by western civilization and largely ignored by other civilizations like China, India, Japan or Africa animist societies.5 Therefore negotiation demands dialogue cannot be reduced to chatting or a mere exchange of points of views, but has to be understood as a real journey through different cultural logic, which may permit the emergence of a new intercultural approach.
The fact is that at the beginning of the twenty first century we are forced to recognize that the authority of law should based on meta-norms named by us as Universal Human Rights Law, which should be hierarchically superior to the International and Domestic laws.
But politicians have polluted the Positive Law and Normative Order. Thus it is necessary to purify them.
II. What is the general and theoretical model of “purification” of Positive Law and Normative Order?
Let us begin with the certification of fact that Plato, Aristotle, Kant and Hegel were preoccupied with the question of: not what is the law, but what the law ought to be.
According to Kelsen’s Pure Theory of Law, every legal norm is in accord with another “higher” legal norm that authorizes its creation. The “higher” legal norm, in turn, is valid only if it has been created in accord with yet another, even “higher” legal norm that authorizes its enactment. More concretely, the constitution is the basic authorizing norm of the rest of the legal system, and the Basic Norm is the presupposition of the validity of constitution. Furthermore, Kelsen argued that every pair of norms which derive their validity from a single Basic Norm necessarily belongs to the same legal system and, vice versa, so that all legal norms of a given legal systems derive their validity from one Basic Norm. It is widely acknowledged that Kelsen erred in these assumptions about the unity of legal systems. However, the role of the Basic Norm in explaining the normativity of law is crucially important. The presupposition of the Basic Norm as the condition of validity of legal norms marks Kelsen's theory as “pure”, which distinguishes it from other theories in the legal positivist tradition. Kelsen was convinced that any attempt to ground law's normativity - on it “ought” aspect - is doomed to failure if it is only based on facts, whether those facts are natural or social.
Once again, to account for an “ought” conclusion, one needs some “ought” in the premises. Therefore, Kelsen thought, normativity of law, as a genuine “ought” must, ultimately, be presupposed. Kelsen's pure theory of law is an attempt to find a middle way between natural law's dogmatism, and positivism's reduction of law to the social sciences. Kelsen does not claim that the presupposition of the basic norm is a necessary feature, or category, of rational cognition. The Basic Norm is an “ought” presumption and, as such, optional. It is not necessary for anyone to accept the basic norm. The basic norm is necessarily presupposed only by those who accept the “ought”, namely, the normativity of the law. The validity of a legal system partly, but crucially, depends on its actual practice: A legal order is regarded as valid, if its norms are by and large effective. Furthermore, the actual content of the basic norm depends on its effectiveness. However, actual legal practice is characterized by normative pluralism, and the effectiveness of the legal system depends on the normative order, which is free from direct subordination to the single legal system.
To reply on above mentioned unprecedented for the history of events in complex that is necessary to reconcile two contradicted theories: Natural Theory of Law and Pure Theory of Law. I suggested a new theory named by me as “Normative Anthropology” and argued the idea about Jus Cogens character of Universal Human Rights Law.
Canonical jurists – Bentham, Austin, Kelsen, Dworkin, Hart, Rawls – tended to assume that a theory of law is only concerned with two types of law: state law and public international law. For the most part, their theories of law do not purport to give an account of non-state law. More over, classical and contemporary scientists traditionally identify “Law” and “Order”. Such identification is mistaken. I consider “Law” as Positive law, while “Order” – as Normative Order. Positive Law and Normative Order compose Normative System of each country. Accordingly, Positive Law as the part of Normative System has single form, while a Normative Order has plural forms.
It is necessary to make distinction between legal pluralism and normative pluralism.
Legal pluralism is connected to the plurality and differences of legal systems of nation-states. Legal pluralism in that sense consist a single world human rights law. A single world human rights law does not mean necessity of existence of world government. Mikhacko Tsereteli (1910) follows Kant (Perpetual Peace, 1795) in rejecting a centralized regime of world government on the grounds that it would either be a global despotism or else an unstable and fragile empire torn by civil strife. This is a quite different point from the very cosmopolitan argument that any domestic political order needs to be set in a wider, transnational or global context. Existence of single world human rights law means only an existence of Code of Universally Recognized Human Rights and appropriately legal mechanism of their protection by the World Supreme Court of Human Rights like the European Court of Human rights and Freedoms in Strasburg.
Normative pluralism, first of all, is connected to the plurality of normative orders within each country.
More clearly, on the level of each country legislator in abstracto distributes mutual rights and obligations among natural and legal persons as potential participants of future normative relations. On the level of each country natural and legal persons as individual participants of the real normative relations distributed mutual rights and obligations thyself in concreto.
Normative pluralism in each country refers to the co-existence of multiple normative orders parallel with a single legal system such as positive law. In other words, in each country we have a single legal system (legal monism) and a plural normative system (normative pluralism).
Normative order and normative pluralism are synonyms. Normative order or normative pluralism divides in two parts: legal pluralism and “non-legal” pluralism. Legal pluralism is a summary of normative acts of public bodies. (Separate place keep normative acts of courts which in summary consists of judge-made law). “Non-legal” pluralism is a summary of normative acts of private persons. (Private persons include individuals and their groups).
Normative pluralism or normative orders is used sometimes to apply to those who advocate plural orders in contrast to state centralism. Positive law is a system of legal rules, which point out how public bodies or private persons ought to conduct themselves ideally regardless of the functioning of such rules really. The normative order is a system of established rules, which show how public bodies or private persons act really regardless of what rules of positive law point to ideally.
The normative order generally comprises both public and non-public orders. So, there are two fields in the space of normative order in general: official normative order, which includes normative acts of public bodies, and unofficial normative order, which includes normative acts of private persons. More clearly, normative order includes two spaces: individual normative acts of public bodies and individual normative acts of private persons. Individual normative acts of public bodies in their entity may be in figural term nominated as public law in action. Individual normative acts of private persons in their entity may be in figural term nominated as private law in action.
An official normative order comprises individual decisions of public (official) bodies. An official normative order has a vertical character. An unofficial normative order comprises individual acts of private (unofficial) persons. Unofficial normative order has horizontal character. Both also include cross-sectional fields, which reflect a result of the coexistence and interaction of an official normative order and unofficial normative order, and the feasibility of normative acts and normative facts. So, the normative order has legal and non-legal contexts.
In whole, normative order is existence of public law in action and existence of private law or non-state law in action, as well as of their coexistence.
Therefore, single positive law is the established by the state entity of general legal rules which regulate civil, political, economic, social and cultural relations among potential natural and legal official or unofficial persons through the distribution among them mutual rights and obligations in abstracto.
Therefore, normative order is the established by the individual natural and legal official or unofficial persons entity of individual normative rules which regulate different civil, political, social and cultural relations through the distribution among and by them mutual rights and obligations in concreto.
Normative order in official context we could be consider in whole or as an entity of different sections (orders) of normative order in official context. For assess and clarification of normative order in official context or different sections (orders) of normative order in official context, we could be used the official reviews of authoritative bodies and competent organizations. For example, for assess and clarification of normative order in official context or different sections (orders) of normative order in official context in the field of human rights may be used reviews or reports of Amnesty International, Human Rights Watch, Freedom House and numerous other organizations concerning observation general human rights norms by the different states and regimes. The World Bank, IMF and donor states subject potential recipients to universally recognized standards implied by phrase: “democracy, good governance and rule of law”. Transparency International develops a quite sophisticated methodology for analyzing the extent of corruption in a given country.
An attempt of subsequent development of theory of normative order we found in the work of W. Twinning “Globalization and Legal Theory” (2000). W. Twinning underlines: “A healthy global general jurisprudence should be able to give a total picture (descriptive/explanatory/normative/analytical) of the phenomena of law in the modern world. Such accounts can be constructed from multiple perspectives. For most purposes, they need to include not only municipal legal systems and traditional public international law, but also global, regional, transnational, and local orderings that deserve to be treated as ‘legal’ for given purposes and the and the relations between them. This will involve addressing the phenomena of legal pluralism, both within and beyond municipal legal systems and different cultures and traditions. The facts of interdependence cast doubt on any ‘black box’ descriptive or normative theories which treat legal or other normative orders as self-contained and in particular those which purport to limit the sphere of their application to notionally self-contained nation states, societies or other impervious units.” 6 But the author could not differentiate substantially not only positive law and normative order, but legal order and non-legal order in the framework of normative order, “order of orders”.
Normative pluralism or normative orders in the framework of normative order in whole (“order of orders” – see below) is the empirical reality in Kantian sense which can become a subject of scientific or other research and investigation through the method of transcendental idealism in Kantian sense. 7
III. The notion and functioning of the normative order in official context i.e. the individual acts of public bodies traditionally have been explored more carefully than the normative order in unofficial context i.e. the individual acts of private persons.
The notion of normative order in non-legal contexts refers to certain social facts, which have been named by Prof. George Naneishvili as “normative facts”. Sometimes G. Naneishvili is using the notion “autonomous normative facts”. “Autonomous normative facts” in the space of social life nicely catches the imprecision and porosity of the juridical context of normative order. 8 Normative facts are the coexistence of different norms in the form of mutual individual rights and obligations within the different every-day social relations of private natural and legal persons’ lives. 9
More precisely, for the clear illustration of the formation of normative facts in the private space I would like to cite a simple example. Let us assume that any private person publicly expressed free will of readiness to undertake an obligation to act in the specific private space. The readiness to undertake an obligation to act in the specific private space has the normative effect, but that is not a normative fact until the other person or persons will not express its or their counter free will of readiness to undertake an obligation to act in that specific private space. In favorable case, the expression (fact) of readiness by both parts to act in specific space and distribution of mutual obligations and corresponding rights (norm) by both parts is the end of formation of normative fact. If we consider such normative facts and analogous and other normative facts in the private space in totality we shall receive the unity which could be named as normative order simultaneously with legal normative order.
G. Naneishvili’s position, which is also mine, may be set forth in summary:
1. The normative facts do not depend on the positive law or its sources.
2. Normative facts are always prior to positive law.
3. We can always imagine normative facts in a space, which is not subject to the regulation of positive law.
4. Positive law cannot increase or decrease the number of normative facts.
5. The notion of normative facts excludes the idea of the free creation of rules of law. Positive law has an artificial, man-made character.
6. Concerning positive law: Because the specific character of positive law depends on the specific character of external transitional factors we can say that this (but not other) positive laws appeared. Therefore, each instance of positive law is but one of several possible (un-instantiated) positive law alternatives.
7. Concerning normative facts: Because the specific character of normative facts does not depend on the specific character of external transitionally factors, we cannot say that this (but not other) normative facts are appeared. Each normative fact is not a possible normative fact, because a normative fact is a fact.
8. Normative facts can only be used by positive law for its aims or can institute constraints over the result, which, according to its value, should occur, but positive law can never annul normative facts.
9. In contradiction to the positive law, which always has an authoritative legal source, normative facts have no authoritative source. We always can say that positive law “happens”, but we cannot say this about normative facts, because any fact is a history.
10. Normative facts should be investigated irrespective of positive law. 10
Normative facts (seinsregel) i.e. the individual normative acts of private persons reflect the normative pluralism in the day to day lives of individuals’ and their groups, and, partially by the ’production’ of individual social rules by private persons. The normative lives of private individuals and groups form the independent normative life of society concerning mutual individual human rights and obligations. 11 The theory of normative facts i.e. the individual normative acts of private persons is based on the idea of contract, treaty, and so on. These include, in particular, private civil contracts, mutual contractual aid, trade and collective commercial agreements as well as the vast range of internal institutional rules, rules of private different units, etc. but not property rights. Property rights have a static, not a dynamic character. Normative facts i.e. the individual normative acts of private persons have a dynamic and not a static character; they reflect factual relations between two or more private natural and legal persons.
Private normative order (normative facts in private space) also refer to the norms of a given group, community, or society or they may refer more broadly to any norm that guides or governs social relations through distribution of rights and obligations. Private normative order (normative facts in private space) out of mutual rights and obligations among participants of social relations is not the subject of science of law.
On the level of sociology, I am talking about the normative coexistence of private persons. The normative coexistence of private persons is the essence of human being. More precisely, normative coexistence is a supreme product of the social life as it is which comes to the self-consciousness and conscious increase interpersonal relations. Searching of meaning of social life results in necessity of self-knowledge, essence of being. The normative cognition of potential participants of social relations is vertical way in the process of elaboration mutually acceptable rights and obligation, whereas all others are distributed on the horizontal plane. In other words, potential participants of social relations attempt to discover common and mutually adopted model of action which would be higher than their individual “wills”, third imperative power situated above their individual “wills”. This vertical of meaning of the social life is nothing else but self-cognition as a result of which the essence of the persons is developed and created, showing normative archetype of humankind in whole disregard of different cultural symbols. Basing on the normative coexistence, the private persons with a greater depth are capable to comprehend their potential position in the social area with the others. In the process of normative coexistence is, as minimum, organized two regular methods, which are realized in “logos” and “theos”. The third method is situated at the junction of “logos” and “theos”, comprehension to which the participants of social relations striving. The result of such striving i.e. normative coexistence is a distribution of mutual rights and obligations by the participants of social relations. More over, the normative coexistence appears in the form an option. The option, which brought the humankind through the spiral and evolutionary development, is crucial, because it is a matter of life and choosing life is possible through the normative coexistence.
On the level of philosophy, I underline that the idea that normative facts i.e. the individual acts of private persons do not depend on the positive law or its sources based on the Giant Goethe’s formula: “Im Aufang war die Tat”. Instead of “How to Do Things with Words”, I support the formula: “How to Do Words with Things”. Human beings do things without words. The things do words, the words do new things, new things do the new words, the new words do new things and etc. Permanent and cyclical interaction between things and words, inter-substitution of things and words, and permanent and cyclical inter-transition of things and words at global, regional, national and local levels has a trend to comprehend a sense of law of Humankind must be based on the Universally Recognized Human Rights. The aim and goal of such interaction, inter-substitution and inter-transition is to achieve sustainable development of Humankind. Formula “New things produce new words” means that new facts produce new mutual rights and obligations. The entity of new facts and new mutual rights and obligations create new normative space, which causes necessity to establish new positive law and etc. Generally talking: to claim “ought to be” means that such “ought to be” practically possible. In other words: it is nonsense to claim human action which is not practically possible. “Ought to be” should be based on the individual human capacity.
Developing G. Naneishvili’s theory, I underline that mutual rights and obligations of private persons are neither psychological entities nor are they mental. The bearers of rights and obligations are related to each other psychologically or mentally but their mutual rights and obligations are related each other - logically. In other words, using P. Winch’s term, normative facts i.e. the individual acts of private persons could be described as “rules-governed behaviors”. 12 Such rules have been naturally plated into human behaviors and issued from human’s knowledge, skills, habits, experience, interdictions, permeations, traditions, ethics, customs, dispositions and etc. Indivisible connection between individual human rights rules and individual behaviors and their transitions is the vital connection (“Lebenszusammenhang”, using Dillteis term) and transition. The participants of such vital connections and transitions disseminate mutual rights and obligations among themselves by which they govern their behaviors. Therefore mutual rights and obligations are the rules through which and together with participants’ behaviors have been created “rules-governed behaviors”, which in legal theory are known as “normative facts” i.e. the individual normative acts of private persons. Theoretically, normative facts divided into norms (mutual rights and obligations) and facts (behaviors).
The theory of normative facts moves away from questions about the effect of law toward conceptualizing official and unofficial forms of normative order. Only 50 years after George Naneishvili, Sally Falk Moore introduced the term “semi-autonomous social fields”, which, as correctly saw W. Twinning, nicely catches the imprecision and porosity of the social contexts of most normative orders. 13 At the same time “Many normative orders do not have discrete boundaries, they tend to be dynamic rather than static, and relations between them are extremely complex.” 14 The positive law and the normative order coexist and interact in complex ways. "Sometimes they compete or conflict; sometimes they sustain or reinforce each other through interaction, imposition, imitation and transplantation.” 15
My position concerning normative facts i.e. the individual normative acts of private persons is based on the logical investigations of Edmund Husserl. As is generally known, Husserl developed a thesis advanced by his teacher Brentano to the effect that all mental acts are intentional, that is, that they are directed towards an object. The existence of man is the existence of other existence of permanent choice. Husserl maintained that all intentional experiences are in this sense ‘objectifying acts’. Husserl's account of meaning builds upon this theory. All uses of language are, he says, referential. Accordingly, Husserl viewed acts such as questions or commands as masked assertions. The command “sit down on the chair” he interpreted as a statement to the effect that “your sitting down on the chair is my current request.” The man is what he is not yet, but what he ought to be.
At the same time the radicalism of Husserl’s phenomenological reduction pushes him to bring the transcendental ego the forefront but posing the problem of alter ego. Husserl solves the problem by making the transcendental ego constitute other egos as equal partners in an inter-subjective community, which in turn form the objective i.e. the inter-subjective world. Maurice Merieau-Ponty after studying unpublished manuscripts of Husserl brings out the notion of “Lebenswelt”. Succeeds Husserl, Martin Heideger investigates the study of “Dasein” (There of Being), which includes the being-with. The inter-subjective nature of subjectivity is emphasized in the philosophies of Gabriel Marsel and Martin Buber in notion of participation and dialogue. We can find a similar turn in the East philosophies. For example, in Confucianism self-cultivation entails relating rightly with others in the family, community and society. A deeper study of Taoism may reveal that self-cultivation also involves relating with others not only with the Tao in humility. In Hinduism, there is a movement of the self’s finding at-ornament from the Brahman to the Atman. In Buddism, the extinction of desires entails the attitude of compassionate love. All of that is a philosophical foundation of the theory of normative facts which content consist of mutual rights and obligation of participants of social relations.
On the other side, plural forms of normative facts i.e. the individual normative acts of private persons are based on the idea that there are many real spaces, which are largely independent of the individual's knowledge of a given world, including knowledge in the positive law. Normative facts i.e. the individual normative acts of private persons are mainly associated with "non-state law". As is generally known E. Ehrlich, the pioneer of sociology of law¸ argued that a realistic depiction of the law in action had to account of "the living law" of sub-groups as well as "the official law" of the state. He saw that these could diverge significantly and that sometimes one, sometimes the other would prevail. This was an important step not only in the direction of "realism", but also in deliverance from the idea that the state has a monopoly of law-creation. These ideas were developed in a number of directions. For example, K. Llewellyn saw clearly that within a major group such as a nation-state, society or tribe, the basic functions of law, such as conflict-prevention and dispute-resolution, could be performed at different levels by a variety of mechanisms in addition to rules by education or the threat or use of brute force, and that different bodies of rules could coexist without necessarily being ranked in a clear hierarchical order. 16
In broad sense I am talking about the normative life of civil society. On the life of civil society have been influenced not only the normative coexistence of private persons but other elements of culture: language, customs, religious rites, statehood traditions, practice of public bodies, folklore, etiquette, art, social and family ceremonies, art, music, cooking, dress, agricultural and industrial practice and so on.
At the same time it is necessary to take into consideration a following abnormal situation: due to the tremendous pressure of “big” cultures in the age of globalization, many small cultures step by step have lost their identities, which degrading culture of humankind. Although the preservation of cultural identity of small nation-states is a very difficult, but national (not corrupted, mercenary and venally) governments must permanently explore some way out and they can show some new techniques to make poise between national and universal cultures. But it is not means that dialogue between nation-states cultures excludes. Not at all! Dialogue between national cultures serves the mutual enrichment and enrichment the culture of Humankind.
To talk about the global society today means a dictatorship of representatives of God’s minions. . . To talk about the global society i.e. world society without borders is too early because it means degradation of nation-states. Each nation-state has natural right to self-determination, which includes the right to merge with other state-nation after that it will decide that nation exhausted its political, social, civil, economic, and other potential.
Assertion that the European model has spread all over the world is illusion.
Contemporary western tradition makes differences between the West and East. That is mistaken. Differences between the West and East are not substantial, because the origination of West Culture is historically and basically connected with the East Culture. (India, China, South-East Asia’s countries, Japan are clear examples). The people from the North space (I mean the people of Council of Europe’s Member States, USA and Canada) are oriented on the modernity. For these people modernity is associated with currency and relevance, and focuses on future in the Darwin’s evolutionary spirit.
I am talking about the gap between North and South. I would like to argue that the gap between North and South more deep than we can image. Contrary to the people of North space, the people from South space are oriented on the past (I mean Muslim and African cultures). The golden era of Islam stretches from 7th century. Since that time Muslim community has been perceived to be on decline. Various reformists have called for a return to the life style of the ancestors. African thought is not different from this perception of life. What is valuable in African culture is not what is yet to come but what has already passed. The concept of “Development” and “Progress” are absent in Afro-Islamic culture. If “Development” and “Progress” mean motion to a changed mode of system in general, Muslims and Africans have no willingness for such motion. The Koran depicts life as a worthless enterprise compared to spiritual life, because it ignores the importance of spirituality. Science and technology do emphasize causality something that Muslim theology denies and replaces it with atomism and “occasionalism”. Although Africans believe in causality but this causality is not material but spiritual. When African goes out to hunt, the motive is mainly not to get food but reveal his manly attributes.
Some philosophers from the East underline contradiction between two - East and West - philosophies, issuing from two questions: one is – what is, and the other – how that is. Such contradiction is superficial. Both are engaged in comprehension of these two questions but with different intensity. From my point of view, more important meter, which should consolidate not only East and West, but mainly North and South, is following: what and how ought to be really. That is a third dimension, which take off any distinction between and occupy the place above them, despite what is and how that is. That is the normative i.e. pure dimensional space.
IV. A traditional thesis distinguishes “Law in the books” and “Law in the action”.
Law in the books i.e. Single Positive Law (public law and private law) is investigated more broadly and deeper then Law in the actions i.e. Plural Normative Order (normative acts of public bodies and normative acts of private persons).
My position concerning single positive law is partially based on the H. Kelen’s pure theory of law; partially, because - individual normative acts of public bodies and individual normative acts of private persons are “seinregels”, but not “solenregels” which connected with rules of positive law, but not rules of Normative order. Taking out of “Pure theory of law” and simultaneously “Stepped theory of law” means taking out of State’s (sollen) frameworks which fraught with complete distraction purity of positive law and stepped structure of positive law. More over, that means to run the danger of statehood which is main guarantee of stability of contemporary society.
Hierarchy of state’s bodies and officials in it is a result of lawmakers’ activity, i.e. general legal model of organization of state’s power. Accordingly, hierarchy of state’s bodies and officials in it is a reflection of hierarchy of sources of positive law, in other words - “Law in the books”.
On the level of positive law “sein” and “solen” are not contradicted each other, they coexisted logically in the framework of two parts of structure of each legal rule: hypothesis and disposition. On the level of normative order “sein” and “solen” are not contradicted each other, they coexist empirically in the framework of two parts of structure of each normative fact: fact and rule. (For example, treaty as normative fact consists of two parts: a fact of conclusion of treaty and mutual rights and obligations between participants of treaty). In other words, normative order embraces factually settled order (practice) of application of general legal rules by individual public bodies (precedent in broad sense) and factually settled order (practice) of application of mutual rights and obligations by private persons. On the level of normative order “sein” and “solen” coexistence not logically but factually and they are indivisible.
More over, all societies have different normative space, in which positive law does not exist in isolation, and more over is not necessarily the most powerful element thereof. The state has no monopoly of lawful power within a given country, except in criminal law and administrative law, because the normative order does not have discrete boundaries. The normative order is dynamic rather than static, and social relations in each normative order are extremely complex.
“Law in the action” expresses one part of normative order, which is only connected with the official normative acts of public bodies. Other, comparably independent part of normative order is unofficial normative acts of private persons (normative facts). Common for both acts is that both are settled mutual rights and obligations of participants of relations (but not else).
“Law in the books” i.e. single positive law (“solen) and “Law in the action” i.e. normative order (“sein”) are different space of life of Humankind.
Single positive law is summary of impersonal rules, which generally regulates potential economic, social, cultural, civil and political relations in the country through distribution of mutual rights and obligations among the possible participants of these relations.
Normative order is summary of personal rules, which concretely regulates factual economic, social, cultural, civil and political relations in the country through distribution of mutual rights and obligations among the individual participants of these relations.
Normative order or normative pluralism is the outcome of public normative acts and private normative acts.
Normative order (public normative acts and private normative acts) includes speech acts of public bodies and private persons too. What I talked about normative acts of private persons (normative facts) in section III I repeat about normative acts of public bodies (legal acts) concerning speech acts. But as far as I would like to consider both together concerning speech act, I have decided to analyze the problem more broadly.
Speech act theory will forever be associated with the great John L. Austin. One of Austin's core insights is reflected in the title of his William James lectures, delivered at Harvard in 1955, “How to Do Things with Words”. When we use language, we usually don't say: what the world is like; when we use language: we do things. We command, request, apologize, contract, convey, and admonish. Speech act theory focuses on the ways in which oral language used for the performance of actions.
Speech act theory begins with the idea that language can be used to perform actions.
Here are the following forms of speech acts:
· Constants: affirming, alleging, announcing, answering, attributing, claiming, classifying, concurring, confirming, conjecturing, denying, disagreeing, disclosing, disputing, identifying, informing, insisting, predicting, ranking, reporting, stating, stipulating.
· Directives: advising, admonishing, asking, begging, dismissing, excusing, forbidding, instructing, ordering, permitting, requesting, requiring, suggesting, urging, warning.
· Commissions: agreeing, guaranteeing, inviting, offering, promising, swearing, and volunteering.
· Acknowledgments: apologizing, condoling, congratulating, greeting, thanking, accepting.
Legal theorists are interested in speech act theory for a variety of reasons, but one of the most important is that speech act theory helps to explain the way that the law uses language. Constitution, Statutes and other normative acts aren't like "the cat is on the mat." That is, a statute does not tell us how the world is in the same way that a declaratory sentence does. Legal language is full of speech acts.
Reinach maintains that such truths are not merely necessary and universal, but also informative, thus that they are examples of truths that are both a priori and synthetic. Adolph Reinach mentions many social acts in his treatise on “The A Priori Foundations of the Civil Law” (1913): commanding, requesting, warning, questioning and answering, informing, enacting, revoking, transferring, granting, and waiving of claims, but he devotes the most attention to the act of promising. Drawing on the theory of essences or intrinsically intelligible structures referred to above, Reinach offers the following examples of a priori truths about what he sees as the intrinsically intelligible structure instantiated through the performance of a promising act:
· through promising one incurs an obligation;
· by receiving a promise one has a claim to what was promised;
· such claims are extinguished when the promise is fulfilled;
· such claims may also be extinguished if the claimholder waives the claim;
· promising is subject to a range of variations or modifications, including conditional promising, promising on behalf of or as a representative of someone else, promising to a group, promising by a group, and so forth.
One of the most fundamental distinctions in legal theory is the distinction between "positive law theory" and "normative order theory." The core idea of the distinction between positive law theory and normative order theory is simple: positive law theory seeks to explain what the law is, in other words, what the law speaks, whereas normative order theory tell us what the positive law ought to be speak, in other words, what the law should be speak.
A bridge between what the law speak and what the law should be speak lies through the normative order. Investigation of normative order gives us an opportunity to assess how positive law (sollen) implemented really in legal order (sein). In the process of investigation of normative order arises an idea of justice, in other words, an idea what the law should be speaking. Reconcile H. Kelsens’ and G. Naneishvili’s contradictory theories, I have suggested a new “Spirally and cyclically developing theory of interaction and mutual-transition of Positive Law and Normative Order”. Based on human rights permanent and cyclical interaction between positive law and normative order and permanent and cyclical inter-transition of positive law and normative order at global and local levels has a trend to comprehend permanently an Idea of Justice. The aim and goal of such interaction and inter-transition is to achieve sustainable development of Humankind based on the Universal Human Rights.
Instead of “How to Do Things with Words”, I suggest the formula: “How to Do Words with Things” in the sense of Giant Goethe: Im Aufang war die Tat”, because “New things produce new words”, which means that in normative space new facts produce new mutual rights and obligations. Human beings do things without words, the things do words, the words do new things, new things do the new words, the new words do new things and etc. Like this the entity of new facts and new mutual rights and obligations create new normative space, which causes necessity to establish new positive law and etc.
Permanent and cyclical interaction between things and words and permanent and cyclical inter-transition of things and words at global, regional, national and local levels has a trend to comprehend a sense of existence of Humankind based on the Universal Human Rights. The aim and goal of such interaction and inter-transition is to achieve sustainable development of Humankind.
In whole, normative order is the established and stabled order or practice of realization of abstract legal acts by public bodies that particularly and concretely regulate real interpersonal relations through the official distribution mutual rights and obligations among the individual participants of normative relations, and the established and stabled order or practice of realization of free individual wills of private persons that particularly and concretely regulate real interpersonal relations through the unofficial distribution and realization of mutual rights and obligation among the individual participants of normative relations, and in a case of their violations they have been guaranteed by the application of legal force by the just judiciary. Moreover, individual public normative acts and individual private normative acts coexist and interact in complex ways. Sometimes they also compete or conflict, sometimes they sustain or reinforce each other and often they influence each other through interaction, imposition and transplantation. Often such influence is reciprocal.
The positive law and normative order are not also contradicted each other, they exist in the parallel regime, because they are entirely different levels of life of the civil society. Functional asymmetry between them is normal process and that process indicates on the perspective of evolutionary development of society in whole. Particularly, positive law is unempirical space of life of civil society, while normative order is empirical space of life of the civil society. Exposition of contradiction between positive law and normative order is possible only theoretically in the process of investigation of their dynamics, using comparative and other methods.
Necessity of exposition of contradiction between positive law and normative order arises when “anti-entropyan” (self-regulatory and/or self-governing) autonomous mechanisms exhaust their means and resources, and level of disorder in normative order reaches a critical stage. Necessity of exposition of contradiction between individual acts of public bodies and individual acts of private persons inside the normative order arises when “anti-entropyan” (self-regulatory and/or self-governing) autonomous mechanisms exhaust their means and resources, and level of disorder in normative order reaches a critical stage.
When entropy in any space of normative order reaches the stage, which is threaten the system, it’s appear an idea of legal reconstruction of appropriate space of positive law. More clearly, when in the process reaches evident theoretical contradiction between positive law (ought to be) and normative order (to be), and between individual acts of public bodies and individual acts of private persons inside normative orders, which indicates that positive law inadequately and unjustly regulates relations between natural and/or legal persons, any legislator must began the process of thoughtfully investigation normative order for the elaboration of new positive law which adequately and justly resolved such contradiction between positive law (ought to be) and normative order (to be) generally, and between individual acts of public bodies and individual acts of private persons inside legal orders particularly. In other words, the aim and goal of such investigation is to discover the normative disorders inside normative orders, and than elaboration of new positive laws for eradication of normative disorders. Achievement of such aim and goal is the main function of any legislator on the local, internal, regional or global levels.
The purpose of investigation of normative order i.e. investigation of individual acts of public bodies (public normative order) and individual acts of private persons (private normative order) are to decrease entropy through the improvement of appropriate fields of positive law. First of all, it means the generalization of normative practice of normative acts of public bodies in the process of distribution of mutual rights and obligation by them and normative practice of private persons in the process of distribution of mutual rights and obligation by them, which first of all is the obligation not sociologists but professional jurists with the sociological bias.
After that, adequate and just resolution of contradiction between positive law (ought to be) and normative order (to be) normative system of the country in whole, and between individual normative acts public bodies and individual acts of private persons inside the normative order through the creation of new positive law, using P. Ricoeur’s general model, generally consists of three stages: pre-figuration (anticipation), con-figuration (formalization) and re-figuration (reorganization). 17 Particularly, the process of thoughtfully investigation normative order for the elaboration of new positive law should be based on the normative pyramid of reasoning. In the normative pyramid of reasoning the core sensual variants concentrate in the center and move from the bottom-up to the top while all the marginal ones after checking and filtering remain on the lower levels or strata of the model to form background knowledge to the effect to the cognitive normative concepts. Every previous phase is a preparatory stage to proceed on the follow-up phase until finally the investigator achieves hierarchically top phase to elicit the conceptual information. The process of making predictions includes a certain adaptation. The degree of adaptation depends on the amount of frustrated expectations or justified predictabilities. So that in case of regular goal-oriented movement of above mentioned methods – adaptation the investigator may benefit, elucidating the maximum information at expense of minimum time and effort.
Simultaneously moving up-ward to the top of cognitive-normative pyramid there is top-down sensor checking process as well, which sets up loose associations condensed in our concept. It offers the knowledge and experience of all the previous phases. Otherwise this self-regulated system shows how to achieve the non-finalized decisions made in every phase. Any element that occurs in this system has its own normative structure. Drawing attention to the most important one, the investigator reluctantly receives information about other parameters i.e. we observe constant changing process of analysis and synthesis.
To the end, the cognitive normative concepts assist us the cognize the world, both visible and/or invisible, organizing the surrounding chaos of normative disorder into the “order of orders”. (See below). The process of permanent taking of the contradiction between individual normative acts of public bodies and/or individual normative acts of private persons inside legal orders, and the process of taking of the contradiction between positive law and/or normative order in the frameworks of their permanent inter-transition creates a spiral, sustainable and evolutionary tendency through which any legislator comprehend a sense of law. 18 In philosophical terms: mutual transition, spiral and evolutionary development of positive law and normative order based on the “principle of causality through freedom”, but not “principle of causality of the nature”.
The aim and goal of such mutual transition, spiral and evolutionary development of positive law and normative order is to achieve the sustainable development of humankind.
The point is following: if the task of legal science is to advance the understanding of law in the modern world, the facts of globalization and interdependence dictate that even the most local phenomenon needs to be viewed in ever-widening contexts, up to and including humankind in general. I agree with scientists in the field of globalization that no one can understand their local law by focusing solely on domestic legislation of single jurisdiction or nation states, that the range of significant actors and processes has been extended, and that the phenomena of normative pluralism is central to understanding system of law in today’s world.
V. Positive Law in worldwide generally has different forms and is constructed differently in different cultures. Different forms of law in worldwide basically are: Customs and/or Customary Law of developing countries, Muslim Law in Islamic countries, Legislative Law in Roman-Germanic and post-socialist countries, Case or Judge-made Law in English language countries, Hybrid Laws in the rest countries. In each country we have single positive law.
Like Positive Law Normative Order or Normative Pluralism has not analogical different forms and is not constructed analogical in different cultures. Normative Order or Normative Pluralism of each country not depends on culture of whole country. It depends on “local cultures” i.e. on plural orders, which includes individual normative acts of public bodies and normative acts of private persons.
Comparative law i.e. comparative “Law in the books” of different countries traditionally has been explored carefully, but comparative normative order i.e. comparative “Law in the action” has not been explored.
Normative order is the system of normative orders (“order of orders” using Rustaveli’s term – see below). Normative orders interact to each other in the frameworks of normative order. Normative order and normative orders interact like interact of whole and part, but not like general and single.
More precisely, the normative order of each country is a gamma of normative orders of individuals and/or groups bound by mutual rights and obligations. Developing A. Reinach’s and G. Naneishvili’s theories, I underline that the bearers of mutual rights and obligations are related to each other psychologically or mentally but mutual rights and obligations are related - logically. Mutual rights and obligations of individuals and groups are neither psychological entities nor mental. Mutual rights and obligations are exclusively normative entities like norms of positive law. Moreover they are always prior to the positive law. 19
Different levels of normative order are not neatly nested in hierarchies, nor are they impervious, nor are they static. They interact in complex ways. Moreover, to understand the normative order, the study of norms is almost never enough. One also has to take account of values, facts, meanings, processes, structures, power relations, personnel, and technologies.
On the other side the only way to make sense of the overlapping normative orders in the modern world is to take refuge in picturing all states legal systems, international order and other orders in a single monist or pluralist system. Monism and Pluralism are entire process, which establishes a new synthetic system of law building in worldwide scale.
Assertion that the European model has spread all over the world is illusion.
If we compare Positive Laws of different countries inside and/or outside of the contemporary global legal system we will found much more commonality then difference. Principles of Roman law permeate the global legal system. “Law in books” has a cosmopolitan character. Differences between Anglo-Saxon and Francophone legal systems are largely superficial and not substantial. For example, the distinction between written and unwritten law is principally superficial, because each composes Norms. “Written law” however is technically precise.
To counterbalance above mentioned, if we compare legal orders of different countries inside and/or outside of the globalizing ius commune we will found many more differences then commonalities. In other words “law in action” has an ethnocentric character.
The “comparative legal families” theory ignores phenomena of normative order as well as different normative orders of and in countries, separating jurisprudence from reality. In this respect, it is necessary to restore in transformative form a particular jurisprudence, which will explore the normative order of each country and then compares the normative orders of different countries.
Our construction is based on the following strong fundament.
Positive law as the system of sustainable general norms of each country includes sustainable Public Law and Private Law. Accordingly, Comparative Law as the part of legal science compares sustainable Public Laws and Private Laws of different countries.
Normative Order as the system of sustainable individual norms of each country includes sustainable practice of execution of Public Law and Private Law by public bodies and sustainable practice of distribution of mutual rights and obligation by individual natural and legal persons. Accordingly, Comparative Normative Order as the part of legal science compares sustainable practice of execution of Public Laws and Private Laws by public bodies of different countries and sustainable practice of distribution of mutual rights and obligation by individual natural and legal persons of different countries.
Thereto it is methodologically helpful to introduce a new branch of the legal science – “comparative normative order”. Such a point of view is necessary for the strengthening of the European house and the distribution of Democracy in Post-Soviet and developing countries. This approach is at the heart of the research on Human Rights and Intercultural Dialogue carried out at the LAJP. However, when and where it is appropriate to draw sharp distinctions between legal and non-legal orders and other phenomena, or between state and non-state law, or between legal orders, systems, traditions and cultures is context-dependent: that is dependent on one’s vantage-point, perspectives and goals. Our early position (1978) independently has been strengthened by W. Twining in his fundamental scientific work, in which he correctly underlines: “I have suggested that normative ordering reflects all levels of human relations (including legal persons, groups etc)... It has the advantage of drawing attention to various levels of non-state ordering and emphasizing the point that these different levels are not nested in a single vertical hierarchy.” 20
Accordingly, a duty of scientific research is not only to comment on and analyze laws but also to describe and analyze the normative order in its several forms. The plurality of the normative orders includes the normative order of countries, regions, cities, villages etc, as well as different macro and micro groups in these spaces.
On the global level it is necessary to underline the following.
Great Positive Law’s system of the world has sevenfold classification: (1) Romanist-Germanic system; (2) Anglo-American system; (3) Islamic system; (4) Post-Soviet system (excluding Latvia, Lithuania and Estonia); (5) Far-Eastern system; (6) Hindu system; (7) Hybrids.
Great Normative Order’s system of the world has threefold classification: (1) Romanist-Germanic and Anglo-American systems; (2) Islamic system, Post-Soviet system, Far-Eastern system, Hindu system, Central and South American system; (3) Customary systems.
Through investigation of normative order on the any level gives to the legislative powers information about the justice and/or injustice of appropriate segments of the positive law. Such information must be scrupulously work up and then “translate” into the language of positive law.
I believe that above-mentioned differences should be serve as starting point for the continuing dialogue among different cultures of West and East (for example, between Christians and Muslims). The constant coexistence of constant positive law and inconstant normative orders is a historical fact. Historically, positive law and normative order never coincided - luckily, because such differences are a precondition of progress and prosperity. But, for sustainable development, it is necessary to create permanent checks and balances between them. If positive law supersedes the normative order, dictatorship results (e.g. the national system). If normative order supersedes positive law, the result is anarchy (e.g., the international system). Positive law, as a monistic phenomenon, consolidates. Yet normative order, as a pluralistic phenomenon, isolates humankind. This is a good balance, like the balance between public law and private law. The goal is to strengthen positive law and to bring normative orders of different cultures closer together, into greater harmony. Looking for isolated differences from the whole is a dangerous mistake. A function of the legislator and of the administration of justice is to create permanent checks and balances between them on both levels.
The interaction between positive law and normative orders today needs an adequate conceptual framework and meta-language than can transcend national legal culture. Such a function could be undertaken by Universal Human Rights as a coordinator of peaceful and cyclical inter-transitions of positive law and normative order.
Once I have recognized both the natural and positive character of human rights (1993) and rejected the theory that bases the whole international law on the agreement of the will of States (1997), we find no special reason to deny that the human rights have the character of jus cogens. The universal recognition of human rights signifies that no State can freely dispose of the rights of its own nationals, and that other states are equally responsible for the protection of the rights of those who are not their own nationals. So far as the respect and protection of human rights are concerned, a World Law dealing with human rights and having a universal character limits the sovereignty of each Member State of the United Nations.
H. Kelsen found that “freedoms are Human Rights.” 21 Professor van Boven emphasizes the “supra-positive” character of Fundamental Human Rights, and urges they are based on Natural Law. 22 Positive Human Rights Law is based on Natural Human Rights Law, from which it has been originated. More over, for me legal relationship between the individuals and the state is based on the natural law principle – pacta sunt servanda, which originated from latent Social Contract (or quasi contract) between society whole and representatives of that society, who are hired for the fulfillment of legislative, executive and judicial functions as guarantees of sustainable development.
On the other hand, pacta sunt servanda has received positive law character as a result of constitutional recognition and notification of Human Rights by the States, which means that the legislative, executive and judicial bodies take responsibility in the effective implementation of that social contract.
To the end the process has gone to the recognition of Jus Cogens character of Universal Human Rights Law. The concept of jus cogens according to Rozakis was “conceived as a minimum legal standard of world order which may give an air of social consideration to the otherwise unstable and extremely individualistic family of nations”. 23 The evolution historically may have been from a deity but is now seen as a product of human actions.
“Therefore, Jus Cogens restricted the scope of treaties. States are bound by these jus cogens limitations when entering Human Rights treaties regardless of present or past views of the state. While states must voluntarily assume treaty obligations, these obligations are regulated by the rules of Universal Human Rights Law independent of the present views of international states.
Universal Human Rights Law as a junction of Natural Law and Positive Law, which rose above them and expressed the Universality of Human Being. Bill of Human Rights is a normative confirmation of such Universality, leaving no state-party, particularly legislative, executive and judicial bodies, without the choice, but only with the absolute and unilaterally binding obligation. (Derogation is an exception but not a rule). This leads me to the hierarchy of World Law headed by Universal Human Rights Law as a Grundnorm, which is the pick of Pyramid of the World Law.
More over the Public International Law can no more also answer on problems to which faced Humankind today: globalization and pluralization of conflicts. The main theme that links the emergence of this new kind of World legal order is disengagement of Law and State. I aspire to make law and jurisprudence more relevant to contemporary politico-economic realities. Unlike Natural Law or Positivism, I do not rely upon theological or other abstract sources such as an "ultimate rule" for its validity. Instead, it criticizes Positivism's "disastrous neglect of how rules are made, as well as of other important aspects of the comprehensive process of authoritative decision." Likewise, it finds Natural Law theories deficient in failing to relate decisions to the events "...in social process to which they are a response and, in turn effect."
In stark contrast with Natural Law and Positivist legal theories, I discover authority in the "perspectives of living community members - their demands for values, their identifications with others, and their expectations about the requirements of decision for securing their demanded values in all their communities..." This understanding of "law as a process" for decision-making has influenced the writings of leading legal scholars of the International Court of Justice ("ICJ").
Benefit of methodology of Anthropology of Law, which based on the idea of personal experience and leads us from a dialectical method of understanding reality to a dialogical one, indisputable. But what is the goal of dialectical method of understanding reality, if not a construction of any law for the follow up ‘social reproduction and conflict management?’ Construction of law is the farther stage after understanding "Reality", after with a circle will repeat again and that process is imperfectly go on.
Why in the capacity of grand theory of law, which “puts normative forms and puts into normative forms the reproduction of humanity”, could not be used the Pure Theory of Law, which is very normative one and perfect and paramount form for building hierarchy of Human Rights Law? From that point of view, Human Rights Law takes off any principle distinctions between state - and non-state law, between state - and international law. Only Human Rights law could be Universal. Is not it? Using recognized words: only Universal Human Rights Law "underling social reproduction and conflict management though legal normativity".
But I would like to go farther. The second level of the process of the inter-culturality must be exchange of information on legal experience among people that take off some negative outcomes of pluralism as well as globalism, and lead us to crystallization of new principles of Law through dialogue. If we stop on stage of description of diversity and/or common legal values, we can't reach substance of Law.
Allow me begin from the last problem. Obviously cultural diversity has influence on the legal systems and life style appropriate countries, but “Human Rights as Common Language of Humanity” able to resolve global problems of Humanity through improvement of Human Rights machinery on the international level at the beginning like European Human Rights Protection system. The Human Community paradigm is not simply a natural concept but intends to provide a theoretical framework permitting to rethink Human Rights in a plural though united and praxis oriented way on the global level.
What is at the core of the debate is to rethink a “Human Rights Community” permitting a “Rule of Human Rights Law” on the local and global levels. For the possibility of such a Rule of Human Rights Law it is not enough to build on the different cultural theories of Human Rights to permit the emergence of a “universal” one. If we want a working “Human Rights Community” we must also build on the practices, and not only on the representations of those who are concerned (and who are not only the states). Therefore Human Rights Law is Universal, because Human Rights indivisible and inherent virtue of Human Beings to which Human being refer normatively (logically). That is non-ethnocentric approach to Human Rights Law. Contrary to Human Rights, which always universal for all disregards of race and etc., Law practically links to statehood and other social institutions on the international, national and/or local levels. Only Human Being is a natural entity, all others in society are man-made creations, including laws, but not Human Rights Law, because Human Rights Law is identical to Human Being. Only one Reality is a Human Being and other creatures of God.” 24
Universal Human Rights Law is not linked by its nature to the existence of a state, nor to the formulation of rules, and nor to the recognition of its rationality. What makes human rights the foundation of the new state is their status as law, more correctly - as positive law. The expansion of positive human rights law as supranational World-Citizens’ Law today constitutes the essential preconditions for generality and reciprocity of granting fundamental rights to the citizens. I speak of the new decentralized by the Fundamental Human Rights State, or - to be more prudent – creation of the new state, named by us Human Rights State.
Europe seems to offer a hybridized version of the state in the human rights context. In the case of Refah Partisi v. Turkey, the Grand Chamber of the European Court of Human Rights acknowledged democracy as the relevant constituent element of statehood. The case involved a human rights challenge to the decision of the Turkish Constitutional Court to have the Refah political party dissolved on the basis that it was a “centre” of activities contrary to the principles of secularism. The Refah party, among other things, supported a system based on sharia law. The Grand Chamber reiterated its view that democracy is a fundamental feature of the “European public order.” It considered that that “there could be no democracy without pluralism” and viewed the state’s role as the “neutral and impartial organizer of the exercise of various religions, faiths, and beliefs.” Most clearly, the Court said that the freedoms guaranteed in the convention “cannot deprive the authorities of a State in which an association, through its activities, jeopardizes that State’s institutions, of the right to protect those institutions.” Human rights protection then, is subject to the state’s ability to survive as a democratic institution. 25
Universal Human Rights Law has non-ethnocentric character, while Positive law and normative order have ethnocentric character.
Universal Human Rights Law is a new and the highest level of rule of law. Universal Human Rights Law as Grundnorm closes a World Law system on the top. Using Kelsen's term about international legal constitution I consider Universal Human Rights Law as a World Legal Constitution.
VI. The theory of normative order based on the justice of equality in fundamental human rights and inequality in private rights. “Justice based on two pillars: fundamental human rights and legal capacity of each person. Fundamental human rights concerning justice mean that all persons have equal fundamental human rights. Individual legal capacity concerning justice means that all persons have equal right to possess unequal private rights. Fundamental human rights and legal capacity in their entity characterize each person as the subject of law, which defines their general position in the society. More broadly legal capacity is a summary expression of those different private (social and economic) rights, which each person could be possess concerning his/her different interests. In other words legal capacity is abstract opportunity to possess individual human rights. Legal capacity includes in its own equal right to possess unequal private (social and economic) rights, because human beings are differed by individual signs such as: physical and mental strength, manual labor, clearness of purpose, resourcefulness, enterprise and other individual characteristics concerning to which the law has no ability to equalize the individuals. The law can and make only one: recognize for all equal chance to satisfy different social, economic, cultural and political interests, in other words equal capacity to possess unequal private rights. As a result all natural and legal persons are distinguished by the particular positions in the society, by the different volumes of private rights on different social and economic benefits. And that is justifiable. In other words inequality in private (social and economic) rights is a condition of justice. Fundamental Human rights is an objective category, but legal capacity is subjective one. Legal capacity is a “right to rights”. 26
It is generally known that Rawls analyze justice in the frameworks of diversity of social, political and economic life of the society. But scientific investigation of social, political and economic aspects of justice is the object not legal, but social, political and economical sciences. If we operate by the normative correlation between human rights of individual and obligation of states concerning justice, Rawls consider a justice as a basis to provide cooperation in conditions where there are opposing religious, philosophical and moral convictions and this basis is to be found in the idea of overlapping consensus.
If we correctly compare Rawlsian and mine theories, we discover that Rawlsian theory is not strictly connected with the legal theory of justice, but is linked with the political, economic and social theory of justice, which define moral obligations of political, economic and social institutions before the principles of justice. Contrary to J. Rawls I am sure that the justice out of human rights is nothing than ideology because criteria of justice have multiple aspects, which depends from different political, social, economic and cultural positions of very different groups of society. Special danger issues from the official authorities, because under the flag of justice historically they excuse any inhuman acts. Any theory of justice, including highly localized once within families, societies, regional groupings, transnational associations and so on, has to be set in a much broader context, which prescribes background rules for more localized spheres of justice. Such broader context is the future Code of Universal Human Rights.
Civilized humankind created the legislative, executive and judiciary powers and separated them not for the state but for Human Beings. Consequently, for the future of humankind I suggest a possible structure of World Positive Law. World Positive Law should be stepped organizing (using Kelsen-Merkl’s term - “Stufentheorie”). At the top of structure has been stationed Code of Universally Recognized Human Rights, after – not contradicted to it regional positive law, then - not contradicted to it constitution of each country and etc. down to the local. On the global, regional, national and local levels should be created regional, national and local human rights codes and related them human rights courts.
Therefore, I suggest a spirally, evolutionary and endlessly sustainable developing theory of interaction and mutual-transition of Positive Law and Normative Order in global, regional, national and local levels. Permanent and spirally interaction between positive law and normative order on the local, national, regional and global levels presents a trend to comprehend permanently an idea of Just Law, which must be based on Universal Human Rights, because: “To do just law, makes a dry tree green”, as Shota Rustaveli - the famous Georgian philosopher and poet of the XII Century and one of the founders of Neo-Platonism - proclaimed. Therefore a criterion of Just Positive Law and Normative Order is the Universal Human Rights Law.
More than 50 years ago before Rustaveli, Georgian King David the Builder (XI-XII c.c.) in the seminal work “Canon of Repentance” in the form of lyrical poetry described just court’s decision-making process.
“When on doomsday the Code is opened
And I shall stand to be condemned,
When the ire of the angels shall be roused,
O judge, pass the just sentence as the Lord.
After the blessed rejoice,
The sinners are cast into the flames,
After will began the triumph of justice,
Then have mercy upon me, o Jesus.”
The aim and goal of interaction between positive law and normative order is to achieve sustainable normative order of Humankind. The moral foundation of Global Order expressed Shota Rustaveli in the following couplet:
“Since deception is the source of whole humankind’s misfortunes,
Why I should betray congenial soul dearer to me then brothers?
Not at all! What avails me knowledge of philosophizing of philosophers?
That’s why we are taught to be able to join the supernal order of orders.”
Prof. L. Jokhadze proposed the following interpretation of Shota Rustaveli’s epigrammatic concept’s - join the supernal order of orders - meaning: “(1) mystical joining the Lord posthumously; (2) the road to super cognition; (3) personification of super nature which prophesies human’s Godly nature; (4) to share super principles of order; (5) to join in living liturgy partaking God’s Eucharist; (6) to join the cosmic order through organized behavior and righteous way of earthly life.” 27
I think that if we are not taught to be able to join the supernal order of orders, we will get disorder in the sense of “paranoid society”, which is described by great Thomas Pynchon in his novel “Gravity of Rainbow”. “If we look English concise dictionaries we read that paranoia is defined as “mental disorder characterized by systematized delusions as of grandeur or persecution”. On the “social language” it characterizes society with all attached vices: 1. any abnormal mental state; 2. mental case; 3. satanic evil power of distraction and degradation; 4. aimless and false propaganda to “improve” the situation; 5. the atmosphere of fraud and deception created by officials in the state establishments; 6. injustice, corruption and immorality disguised under the mask of kindness and nobleness; 7. devaluated virtues of degraded society; 8. an exclamation of surprise or wonder etc. and a euphemism for God, like Gosh or nonsense that has a kernel of truth. 9. any wrath poured out due fair or just claim.” 28
Exclusive way out of such dangerous situation is following. A Hierarchy of norms in the World Legal System has to issue from Universal Human Rights as the peak of the pyramid (Grundnorm) of World law and order. Excessive passion for “Universalization” (excepting Human Rights) is as dangerous as excessive passion with endlessly fragmentation (except the rule of law state). The method must be based on the investigation of the correlation among “a pluralist approaches to positive law” (legal families) and “a pluralist approaches to normative orders” (inside legal families). We base our study on the well worked out normative methods of synthesis and analysis and present this process in a pyramidal chart where normative variants are step by step concentrated on multi-hierarchical levels. Each stage should be a theoretical rethinking of the above mentioned “approaches” and the elaboration of recommendations towards their rapprochement. In other words, these variants interact and strive to make more complete decision in every phase to gain access to the top of the pyramid, which is the stratum of effect to form a final normative concept – new sense of law. Therefore pluralist approach also means an scientific and legislative investigation of the diversity of normative orders. But that is only the start. The task of such investigation is to discover common and distinctive elements among positive law and the normative order, and then the elaboration of “consensus laws” and ways of rapprochement through “an intercultural approach to law and order” based on the universal human rights. Universal Human Rights should be the sense and spirit of any Positive Law and Normative Order.
Prevailing notions of public international law do not appear ill suited to finding adequate solutions for the myriad problems that are transnational in scope. Among these are global warming, ozone depletion, over-fishing, deforestation, marine pollution, corruption, and terrorism, narcotics and contraband armaments traffic, illegal trade in endangered species of flora and fauna, and unregulated financial transfers. These problems exceed the capacities of any individual state or even any block of states to control effectively. To reply on such unprecedented for the history of events in complex that is necessary to reconcile two contradicted theories: Pure Theory of Law and Sociology of Law. We are suggesting a new theory named by me as “Anthropological Normativizm” and have an attempt to argue the idea about Jus Cogens character of Bill of Human Rights. Bill of Human Rights takes off any distinction between Pure Theory of Law and Sociology of Law. In this respect transformation of International Law into Universal Human Rights Law is a decisive challenge of our time, especially after the September 11. Politics has polluted the Positive Law and Normative Order. Thus it is necessary to purify them. My device in 2001 was the following: “Save the Planet after September 11 through ideological war against several forms of racism based on the religion. Terrorism is not a cause, but outcome of such racism. Accordingly we must fight not only against terrorism, but also and basically against the cause of it. The cause of terrorism is the tendency toward of formation of Global Government.”
The paradoxical statistics approving this process is given by the well-known researcher Q. Whrite: the number of armed conflicts on the European continents in 15th century was 9, in 16th century - 87, in 17th century - 239, in 18th century - 651, in 19th century - 781, in 20th century-892. 29 Such alarming statistics is corroborated by other scientist and is considered to be doubtless. So, the higher is the level of civilization the more is the number of conflicts and vice versa. It’s strange and very perplexing event. After September 11 Humankind has entered into new, at the start - more dangerous transmission era, in the seventh dimension. The religious separatism is today’s tragically reality and the real “chance” of perdition of the humanity.
In such sense the Universal Human Rights Law should be a pick of Pyramid of the Positive World Law, which is based on the Natural Human Rights, and which oblige the member-states, particularly in the light of necessity of reconstruction of UN’s functions in peacekeeping operation in transition period for the World. In that sense it is necessary to abolish Security Council of UN, because three permanent members of Council are permanent aggressors in the world. In the modern “globalistics” it is ascertained that today the world is in such a complicate situation that we haven’t the possibility of use of one system or other of values, ideology or culture as a model in order to preserve its existence.
In my opinion Universal Human Rights Law as the result of convergence of Natural and Pure theories of Law will have a large and dominant part in the development of whole branches of modern law, as for example, in the efforts of legislatures and courts to restrict unfair methods of competition and unfair restraints of trade. In short we are talking about of substitution morality by Universal Human Rights.
Highest unmoral first of all is the fact that human being is the only creature that is producing rubbish. However everyone is entitled to a sustainable environment, in which the Rights and Freedoms set forth in the Bill of Universal Human Rights could be fully realized. The religious dogma of mankind’s ascendancy over the nature was instilled into human mode of life as the directing norm of their activity, and it has directed humanity to ecological catastrophe.
The human being is bifurcated. On the one hand, he feels the evident advantage in comparison with all beings or events known by him, on the other hand, during the process of becoming acquainted with surrounding nature, he becomes sure that he is infinite and in-cognizable, and the more he encroaches deeply upon the essence of the events (phenomena) of universe the more is he seized with the feeling of vainness. Besides these, the unlimited free will in 20th century has leaded the humanity to the brink of planet catastrophe twice. At the beginning of this century the global ecological crisis was added to more dangerous situation, and this crisis grows deeper and deeper progressively. The free will has transformed into global self-will!
One of the universally recognized mean to way out from above-mentioned dangerous situation is the peremptory subordination of Governments to the human rights and freedoms of mankind recognized everywhere what implies the global “ecologization” of the thought and mode of life of the humanity. Since beyond the orthodox politics there are many hopeful symptoms of break-throw in this direction but the reality givens us the grounds to make only insecure prognosis. One of the reasons of unprecedented Tsunami (2004) and floods (2010-2011) is uncontrolled and global output of oil.
Energetically our planetary ecosystem is an open and dynamic system. There is a rather delicate balance between incoming solar energy, internal energy from radioactive Decay, and radiated "blackbody" energy. There exists a balance because ecosystem processes are organized cyclically and the non-entropic processes in them are indissoluble with energy degradation. At the same time, the system isn't static, it is dynamic in spiraled sense, as long as the forces creating the equilibrium are entrained themselves into the stream of changes, so that the natural search for equilibrium is accompanied by deviations from it because of the participation of oppositional forces in the transactions. The infinite natural combination of forces leading to equilibrium and of such deflecting from it is the very moving force of the evolution process. Renewable energy is regarded more and more as a profitable and rational investment in light of dramatic and continuing reductions in capital costs, reliability improvements, the volatility of fossil fuel prices, and the environmental compliance costs of generating electricity from fossil and nuclear fuel sources.
If we sincerely want to solve the global environmental crisis, we must make a revolutionary break and establish new, Earth - amenable legal and social institutions oriented on Daylight-power generation. Actually it means a global substitution of very expensive and dangerous exploitation of Earth’s un-renewable resources by using at the beginning of inexpensive and safety Day-light, including Solar and Wind energy, as a stable guarantee of the sustainable development of humankind. Above mentioned should be spiral evolutionary and endlessly process of civilization. This will certainly necessitate a fundamental change in philosophy, beliefs, norms, values and lifestyle for many people based on the doctrine of Saint Francisco d'Assisi, find common propositions in fundamental religious systems and act in concert towards the creation of new and united ENVIRONMENTAL RELIGION, because the God is one and unique for all Nations!
I am sure that one of the practical mean to way out from above-mentioned dangerous situations is the “aphroditization” of men’s mind, or the “hermaphroditization” of the whole society. In the works of Aristotle, Aquanaut, Rustaveli and Dante there is developed the consideration that the harmonious consensus of manhood and womanhood is the necessary condition for making the picture of reality without distortion, what creates the grounds for the adequate behavior of human being and excludes the social catastrophes. In the works of famous scholars of 20th century, especially – in fundamental investigations of K. Stern, there is argued with sufficient depth that in the thought of Dante, Shakespeare and Goethe, also – of several well-known persons from the newest history, we can find the ideal harmony of the two trends. Woman isn’t the surrogate of man, but patriarchal way of worldwide thinking and mode of life allege the opposite statement. However the history of Civilization numbers only about some millenniums, while the history of Humankind - many billions. During the history of humankind have been established stereotype of man as a hunter i.e. killer, and stereotype of woman as a family person i.e. thoughtful.
Other way is the way of establishing prudence and moderation in public and private life. The prudence means orientation of public and private structures to the reality and overpowering of some aspects of the reality with the aim of satisfaction of interests with living necessity, protection the norms of ecology end genetics; the envy and the insatiability are unremitting enemies of prudence, they for their engender injustice as the rule of behavior as the norm for public and private structures. They provoke the human being against another human being, they put the whole society into the locked circle of receiving only material profit, and they accomplish the erosion of spirituality that causes the loss of sense of proportion. In the end, the criminal society is formed, and it is based only on the principle of egocentrism. Of course, prudence, justice and moderation don’t imply that we must not to love ourselves.
Theory of “Comparative normative Orders” is an important one to be heard for the aim to map out alternative to the present approaches to the “Contemporary Comparative Law” and “Rule of Law”, which seem less and less satisfying.
My scientific position warns us never to absolute any theory of law. It gives us the universal key to open the door in world, which could be equally acceptable for different cultures. It is not a new intercultural theory of law. It is a new philosophy of law based on the Universality of Human Rights and Freedoms.
Summarizing the above mentioned principle propositions I underline the following:
I. The positive law exposes how ought to act subjects of law. Positive law is an entity of “ideal” legal rules, which regulate civil, political, economic, social and cultural relations among persons in abstracto through the recognition, separation and/or protection of mutual rights and obligations by the application of judicial force in case of their violation. Public Law and Private Law are the two branches of Positive law. Public Law regulates public relations between public persons. Private Law regulates private relations between private persons. Public Law and Private Law have fields of junction. Positive law includes a cross-sectional field, which reflects a result of some congruence of public law and private law. Positive law has a vertical hierarchy. Legal theory refers to phenomena of positive law. In short, Positive Law is “law in the books”.
The Normative Order is 1) the established and stabled order or practice of realization of abstract legal acts by public bodies that particularly and concretely regulate real interpersonal relations through the official distribution mutual rights and obligations among the individual participants of normative relations; and 2) the established and stabled order or practice of realization of free individual wills of private persons that particularly and concretely regulate real interpersonal relations through the unofficial distribution and realization of mutual rights and obligation among the individual participants of normative relations, and in a case of their violations they have been guaranteed by the application of legal force by the just judiciary. In short, the normative order (normative pluralism) is “law in action”.
II. The normative order censors how ought to act subjects of law. Notion of normative order based on the philosophical thesis that there are “multiple realities”. The normative order is an entity of “real” individual legal acts of public bodies and normative acts of private persons, who regulate civil, political, economic, social and cultural relations among public and/or private persons in concreto through the recognition, separation and/or protection of mutual rights and obligations by the application of judicial force in case of their violation. The normative order includes also a cross-sectional field, which reflects the coexistence of the feasibility of legal acts and normative facts. The normative order has a horizontal character.
Legal acts constitute the legal order, which shows the real state of public and private relations in society. The legal order can be directly described, because it has documentary forms, is transparent and easily accessible. The analysis of the legal order is not problematic for legislator. The legal order is an official form of the normative order. Normative facts constitute the non-legal order, which shows the real state of private relations in the society. Non-legal order can’t be directly described, because mainly it has no documentary forms, is latent and often difficult to access. To analyze normative facts is problematic for the legislator: it needs scientific investigation. Normative facts relate to the category of “non-state law”. Normative facts are an unofficial form of normative order. The theory of normative facts is an important step not only in the direction of “realism” but also away from the idea that the state has a monopoly of law-creation. 30 Sociology of Law refers to phenomena of the normative order.
III. I distinguish positive law on the global, regional, national and local levels, and normative order on the global level from the regional, national and local levels.
Positive law on the global level refers to Universal Human Rights Law, Environmental Law, Public International Law, Humanitarian Law, Private International Law, Trade Law, Trans-national Law, Regional Law, Inter-Communal Law etc., worldwide. Positive law on the local level refers to the single legal system of each state, which should be compatible with the Universal Human Rights Law, Environmental Law, Public International Law, Humanitarian Law, Private International Law, Trade Law, Transnational Law, Regional Law, Inter-communal Law etc.
Normative order on the global level refers to the state of realization of universal human rights law, environmental law, public international law, humanitarian law, private international law, trade law, trans-national law, regional law, inter-communal law etc, which form legal orders and a large space of normative facts in worldwide. Normative order on the local level refers to the state of realization of Universal Human Rights Law, Environmental Law, Public International Law, Humanitarian Law, Private International Law, Trade Law, Trans-national Law, Regional Law, Inter-communal Law and etc, which form legal orders and a large space of normative facts within each country’s boundaries. Description and analyze of normative order on the global and on the local levels along with description and analyze of single positive law on the global and on the local levels give us an opportunity to describe and analyze normative system of each country in whole and the world also in whole.
IV. One of the most fundamental distinctions in legal theory is the interaction and mutual transition between "the theory of positive law" and "the theory of normative order". The core idea of the distinction between the theory of positive law and the theory of normative order is simply this: the theory of positive law seeks to explain what the law is, in other words, what the law claims, whereas theory of normative order tell us what the positive law ought to be, in other words, what the law should be claim.
If we use the great J. Bentham’s terms, from my point of view: the positive law is the subject of explanatory jurisprudence, while the normative order is the subject of censorial jurisprudence.
A bridge between what the law claims and what the law should be claim is a space of idea of law. Investigation of the legal order in the framework of the normative order gives us an opportunity to assess how positive law (sollen) is implemented in practice (sein). In the process of investigation of the legal order in the framework of normative order, an idea of law arises, in other words, claims to what the law should be from the point of view of the Just Law.
In philosophical terms: mutual transition, spiral and evolutionary development of positive law and normative order based on the “principle of causality through freedom”, but not “principle of causality of the nature”.
V. I suggest a spirally, evolutionary and endlessly developing of theory of interaction and mutual-transition of Positive Law and Normative Order on the global, regional, national and local levels. Permanent, evolutionary and spirally interaction between positive law and normative order on the locally, nationally and globally present a trend to comprehend permanently an idea of Just Law, which must be based on Universal Human Rights, because: “To do just law, makes a dry tree green”, as Shota Rustaveli - the famous Georgian philosopher and poet of the XII Century and one of the founders of Neo-Platonism - proclaimed. The aim and goal of interaction between positive law and normative order is to achieve sustainable normative order of Humankind. The moral foundation of Global Order related to “the supernal order of orders” expressed by Shota Rustaveli.
My theory about mutual transition, spiral and evolutionary development of positive law and normative order taking of any contradiction between them and making possible peacefully coexistence of positivism and sociologic directions in jurisprudence, and creating balance between public law and private law on the global, regional, national and local levels.
VI. The “legal families” theory of Comparative Law ignores the phenomenon of the normative order, because it does not explore and compare normative orders of different countries, which are in the same “legal family”. The suggested theory takes stock of new comparative law scholarship to compare normative orders of different countries within each legal “family”, whether Germanic, Romanist, Common Law, Islamic, Post-Soviet, Far Eastern legal families and among them. So it is necessary to introduce a new branch of legal science: Comparative Normative Orders Study.
VII. My core argument is that the post-modernity is in crisis. It has exhausted its political potential and is in process of being replaced by a new post-positivist paradigm, which could be built on the emancipator possibilities of the Rule of Just Law based on the Universal of Human Rights. 31 Particularly, in the modern “globalistics” it is ascertained that today the world is in such a complicate situation that we haven’t the possibility of use of one some system or other of values, ideology or culture as a model in order to preserve its existence. The first step that the humanity has to do, is the integration of basic religious trends, because the God is one and unique. We consider as acceptable this trend, even to act in concert towards the creation of new and united environmental religion. Actually it means a global substitution of very expensive and dangerous exploitation of Earth’s un-renewable resources by using of inexpensive and safety Day-light, including Solar and Wind energy, as a stable guarantee for the sustainable development of humankind.
Conclusions
I. Legal Monism (Public Positive Law and Private Positive Law) indicates how natural and legal persons ought to act ideally.
II. Normative Pluralism (Public Normative Order and Private Normative Order) shows how public bodies, and natural and legal persons acts really. Legal Monism (what ought to be) and Normative Pluralism (what is) never coincide.
III. Legal Monism (what ought to be) and Normative Pluralism (what is) never coincide. The “legal families” theory of Comparative Law ignores the phenomenon of the normative order. So it is necessary to introduce a new branch of legal science: Comparative Normative Orders Study simultaneously with Comparative Law Study.
IV. The Idea of Just Law suggest what sort and kind of law legislators (in Roman-Germanic i.e. “civilianist” legal space) or judges (in Anglo-American, i.e. common law legal space) should make, so that law would be just from the Universal Human Rights point of view.
V. The Mutual-Transition of Legal Monism, Normative Pluralism and Idea of Just Law must be based on the Universal Human Rights Law as Basic Norms’ Entity, and this process must be repeated dialectically, i.e. spirally, constantly, evolutionary and endlessly. 32
1 B. Savaneli, Kamf ums Recht, 1994, Rechtsreform in Georgien. Mit finanzieller Deutschen GTZ, ed., Tbilisi State University, p. 23, in Georgian. (Summary in Deutsch). See also: B. Savaneli (Pkhaladze), 1969, Correlation between Universal Human Rights and Legal Capacity of the Citizens, Candidate’s Dissertation Essays, ed. Moscow State University, Moscow, p. 4-5, in Russian.
2 V. Epping, 1990, Volkerrecht subject, in Ipsen Knut edition, Volkerrecht, 4th edition, Munich, p.75.
3 H. Kelsen, 1952, Principles of International Law, p. 143. Brownlie Ian, 1990, Principles of Public International Law, 4th ed., p.57.
4 B. Savaneli, 1993, Legal Theory, Manual, Tbilisi, p. 207, in Georgian. See also: B. Savaneli (Pkhaladze), 1969, Correlation between Universal Human Rights and Legal Capacity of the Citizens, Candidate’s Dissertation Essays, ed. Moscow State University, Moscow, p. 4-5, in Russian. (Since 1970 “Savaneli” is my pseudonym, which connected with the village Savane – the birthplace of my ancestors).
5 S. S. Prakash, 1995, Legal Polycentricity, UK, Dartmouth, p. 32.
6 W. Twinning, 2000, Globalization and Legal Theory, ed. Butterworths, London, p. 88.
7 Transcendental idealism is a doctrine founded by German philosopher Immanuel Kant in the eighteenth century. Kant's doctrine maintains that human experience of things is similar to the way they appear to us - implying a fundamentally subject-based component, rather than being an activity that directly (and therefore without any obvious causal link) comprehends the things as they are in and of themselves. The best way to approach transcendental idealism is by looking at Kant's account of how we intuit objects, and that task demands looking at his accounts of space and of time. (See Transcendental idealism in Wikipedia: “Transcendental Idealism”). Normative character of positive law and normative character of language are coincides as Kelsen saw. (See, H. Kelsen, 1946, Eine Grundlegung der Rechtssociologie. J. Archiv fur socialwisenschsft und socialpolitik, p. 40. See also, H. Kelsen, 1934, General Theory of Law and State, p. 175).
8 George Naneishvili, 1930, Positive Law and Normative Facts, ed. Tbilisi State University, Tbilisi. G. Naneishvili graduated from Freiburg University in 1924. He was an assistant of founder of Psychological theory of Law - Prof. Leon Petrazhitski and follower of Edmund Husserl in Jurisprudence. Prof. George Nanaeishvili is only one scientist who on high creative level develops Reinach's theory about Social Facts. (See: A. Reinach's major work, 1983, “The A Priori Foundations of Civil Law,” (trans. John Crosby), Aletheia.
9 B. Savaneli, 1977, Positive Law and Normative Order, J. “Law”, N3, p. 34, in Georgian. See also: B. Savaneli, 1992, Evolutionary Interaction between Normative Order and Positive Law from the Point of Comprehension of Sense of Law, Doctoral Dissertation Essays, Tbilisi, in Georgian and Russian.
10 G. Naneishvili, op. cit, p. 55. Radical position concerning legal force of contracts was expressed by J. Frank. For J. Frank, not only legislator, but also private persons create positive law. See: J. Frank, 1949, Courts on Trial, Princeton, p.308.
11 B. Savaneli (Pkhaladze), 1969, Correlation between Fundamental Human Rights and Legal Capacity of the Citizens, Candidate’s Dissertation Essays, ed. MoscowState University, Moscow, p. 4-5, in Russian. See also: B. Savaneli (Pkhaladze), 1969, “Juridical Forms of the Citizens Position in Soviet Society”, Monograph, ed. “Academy of Sciences of Georgia, Tbilisi, in Russian. Reviews on monograph see: Prof. Dr. S. S. Alekseev, 1970, in J. “Jurisprudence”, N 5, p. 106-107, in Russian; M. Fridieff, 1971, in J. “Revue International de Droit Compare”, Janvier-Mars, Paris, p. 272-273, in French; Anna Michalska 1971, in J. “Ruch Prawniczy, Economizhny i Socjologiczny”, Kwartal Trzeci, Warszawa-Poznan, p. 305-307, in Polish.
12 P. Winch, 1958, The Idea of Social Science, Routledge & Kegan Paul, Printed in Great Britain by the Burleigh Press, London.
13 W. Twinning, op. cit. p.85.
14 W. Twinning, op. cit.
15 W. Twinning, op. cit.
16 K. Llewelyn, 1940, The Normative, The Normative, The Legal and The Law-jobs: The problem of Juristic Method, 49 Yale Law Journal, p. 1355-1360. Shortened version was reprinted in 1962, K. Llewelyn, Jurisprudence: Realism in theory and Practice, p. 233-262.
17 P. Ricoeur, 1983, Le Temp et Recit. Paris, Vol. I, p. 59.
18 B. Savaneli, 1993, General Theory of Law, Manual, ed., Pirveli, p. 201-205, in Georgian.
19 G. Naneishvili, op. cit, p. 58.
20 W. Twining, op. cit, p. 223-224, 253.
21 H. Kelsen, 1966, The Law of the United Nations, p. 29.
22 Van Boven, 1982, Distinguishing Criteria of Human Rights, in J. The International Dimensions of Human Rights, p. 44.
23 C. Rozakis, 1976, The Concept of Jus Cogens in the Law of Treaties, p. 11.
24 Bidzina Savaneli, 2003, Jus Cogens Character of International Human Rights Law, Philosophy and Legal Theory for 21st Century, ed. David Agmashenebeli University of Georgia, Tbilisi, in English, p.p. 13-14. (This work is dedicated to the Memory of Giant of Law and International Law – Hans Kelsen). See also: B. Savaneli, 1993, Law, Religion, Ecology, in Manual "Theory of Law", p. 307, in Georgian.
25 Case of Refah Partisi (The Welfare Party) and Others v. Turkey, European Court of Human Rights Grand Chamber, hearing 19 June 2002, Application numbers 41340/98, 41342/98, and 41344/98.
26 B. Savaneli (Pkhaladze), 1968, Correlation between Fundamental Human Rights and Legal Capacity of the Citizens, Candidate’s Dissertation Essays, ed. Moscow State University, p. 4-5, in Russian. See also: B. Savaneli (Pkhaladze), 1969, “Juridical Forms of the Citizens Position in Soviet Society”, Monograph, ed. “Academy of Sciences of Georgia, Tbilisi, in Russian. Reviews on monograph see: Prof. Dr. S. S. Alekseev, 1970, in J. “Jurisprudence”, N 5, p. 106-107, in Russian; M. Fridieff, 1971, in J. “Revue International de Droit Compare”, Janvier-Mars, Paris, p. 272-273, in French; Anna Michalska 1971, in J. “Ruch Prawniczy, Economizhny i Socjologiczny”, Kwartal Trzeci, Warszawa-Poznan, p. 305-307, in Polish.
27 L. Jokhadze, 2000, Intercultural Communication and Didactics of Foreign Word Concepts, in Aktuel Padagogik und Kulturdidactik, Tbilisi-Stutgart, p. 14. L. Jokhadze, 2008, Literary text as a Stylistic-Conceptual System, Summary in English, ed. “Khirony”, Tbilisi, in Georgian, p. 219.
28 L. Jokhadze, 2010, Social Entropy for Thomas Pynchon’s Literary Criticism, in Journal for Phenomenological Inquiry, ed. Council for Research in Values and Philosophy, Cardinal Station, Washington DG, 20064, p. 17.
29 Q. Wright, 1965, A Study of the War, 2nd ed., with a Commentary of War since 1942, ed., University of Chicago Press, Chicago, p. 221. See also: Save the Planet after September 11 ... Bizina Savaneli on March 22, 2002 at 13:27:24: ... If we compare Legal Orders of different... Eradication of the World War III... www.ejil.org/forum_WTC/messages/ 46.html - 86k –
30 “Normative pluralism is generally marginalized and viewed with skepticism in legal discourse. Perhaps the main reason for this is that over 200 years western legal theory has been dominated by conceptions of law that tend to the monist (one internally coherent legal system), static (the state has monopoly of law within its territory), and positivist (what is not created or recognized as law by the state)”. See W. Twining, op. cit. p. 232.
31 Bidzina Savaneli, 2003, Jus Cogens Character of International Human Rights Law, Philosophy and Legal Theory for 21st Century, ed. David Agmashenebeli University of Georgia, Tbilisi, in English. (This work is dedicated to the Memory of Giant of Law and International Law – Hans Kelsen).
32 Instead of review. "Dear Professor Savaneli, Thank you very much for your summary about "The Theory of Spirally and Endlessly Development of Mutual-Transition of Positive Law and Normative Order. We are glad that there is so active academic researcher on legal theory like you in Georgia. Yours sincerely, Dr. Klaus Zeleny, Hans Kelsen’s Institute, Vienna, Austria, Thu, October 8, 2009, 1:56:29 PM 20.02.08”.
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