Classical and Non-Classical Theory of Law

The article discusses the possibility of the dialogue of the classical and non-classical trends of law understanding. In reaching this aim, author tries to research its philosophical and methodological foundations. The classical philosophy of law is grounded on the presupposition of the Being-Oughtness of law. The Being-Oughtness of law is the certain concept which marks the dogmatic presupposition of the ideal normative dimension of law, both natural and positive. The non-classical philosophy of law is based on the statement that law exists not as a continual phenomenon, but as a discrete one. It means, that law does not exist in itself as such, but is reproduced in the everyday life of the human beings. Thus, in the classical paradigm, law originally expresses itself as the continual Being-Oughtness of its ideal essence. At the same time, in the non-classical paradigm, law is interpreted as the discrete Being-Reproduction of the legal entity. As a result, the discussion between the scientific schools that belong to the different kinds of law understanding seems impossible. Searching for the conditions that make the dialogue between the classical and non-classical approaches to law possible, the following hypothesis can be made: the dialogue can take place not in the sphere of the philosophy of law, but in the problem field of the legal theory. It is possible due to that fact that the theory of law as a middle-level theory is higher than specific legal sciences, but, by virtue of its practical focus, it minimizes the philosophical and methodological difference. The fundamental working hypothesis of the article is the strict methodological difference between the field of law and the field of the legal. The field of law is the deep foundations of law, which determine the law identity of any entity as relevant in terms of law. The field of the legal is the sphere of the application of valid legal norms, which can be examined using the conceptual means of the legal theory. As a result, positive law presents itself as a method of the state power's self-coding through legal concepts. Thus, the primary recipient of legal norms is the official, while the ordinary person is only a secondary one. By applying this hypothesis to the problem field of the legal theory, it is possible to identify three different kinds of legal issues. The first is the reconsideration of the human rights phenomenon. The second consists in the new interpretation of the legal norm. The third includes the new view on the issue of the legal subject. As we can see, it is the sphere of the legal theory that is a very fruitful problem field for discussions between the classical and non-classical understanding of law.