Does Normativity Contribute to the Effective Protection of Rights? Reflections on the Concept of Normativity in the Modern Ukrainian Doctrine of Law
Summary: 1. Introduction: The Concept of Social Norms and Their Role in Modern Society. – 2. Normativity and Due Diligence of the Law: How a Subject Should Act and Why Coercion Is Not Effective. – 3. The Concept of Normativity in Modern Philosophical Writing and Its Significance for the Development of Modern Law and the Effective Protection of Individual Rights. – 4. Conclusions and Reflections on the Further Study of the Essence of Law in Modern Society.
Abstract
Normativity is considered the basis for the implementation of social regulation. However, this regulation of social relations must be organised and have a positive impact on the development of society. Normativity is considered to be the primary, original property of social reality due to the natural demand for establishing order and its integral
ability for self-organisation. The integration of elements into a balanced system is carried out through their coordinated interactions, resulting in something new, which has a unique integrative quality, provided that this quality was absent before their integration into the system.
At the same time, nowadays, the phenomenon of normativity is studied mostly from traditional positions. A number of well-known works that raise the issue of normativity were written in the middle of the last century under conditions of an ideological monopoly and are unlikely to enrich the modern understanding of the normative nature of law.
Today, in the Ukrainian scholarly literature, because of Soviet remnants, only the formal (positive-empirical) side of normativity is being assessed, which leads to it being replaced by the concept of state coercion. In general, this leads to the spread and dominance of extremely negative phenomena in Ukrainian society, among which the total non-enforcement of court decisions is worth mentioning. The solution to this problem cannot simply be improving coercive measures of the state alone – there must be changes to understanding the rule of law and, in particular, the nature of normativity. The analysis of the method of objectification (formation) of the due diligence of law will significantly contribute to targeting this problem because the latter is not solely derived from the dictates of the state (or the empirical phenomena). However, the key focus is finding the answer to one of the most important questions of jurisprudence and the philosophy of law, namely: ‘Why should a person obey the law?’. Thus, we are highly motivated to initiate a philosophical and legal rethinking of approaches to the normativity of law and the legitimation of state and legal processes. This article is an attempt to target a discussion in this sphere
About Authors
Kabalskyi Roman
PhD (Law), Associate Professor,
Department of Theoretical Sciences,
Yaroslav Mudryi National Law University, Kharkiv, Ukraine
r.o.kabalskyy@nlu.edu.ua
https://orcid.org/0000-0002-7581-432X
Shevchyk Olexandr
PhD (Law), Associate Professor,
Department of Civil, Commercial and Financial Law,
Yaroslav Mudryi National Law University, Kharkiv, Ukraine
o.s.shevchyk@nlu.edu.ua
https://orcid.org/0000-0001-5459-0972
ACKNOWLEDGEMENTS
The authors would like to express their gratitude to the reviewers and editors of the journal for their help and to the English editor, Sarah White.
CONFLICTS OF INTEREST
The authors declare no conflict of interest of relevance to this topic.
CONTRIBUTORSHIP
The authors contributed equally to the intellectual discussion underlying this article and to the writing and accept responsibility for the content and interpretation.
References
- Alekseev S, General theory of law in 2 volumes, Volume 1 (Yuridicheskaya Literatura 1981) 361.
- Alekseev S, Theory of law (BEK 1995) 320.
- Babiuk А,‘The concept of normative law’ (2014) 4 (52) University Scientific Notes 19.
- Borysova V, Iurevych I, Ivanova K, Ovcharenko O, ‘Judicial protection of civil rights in Ukraine: National experience through the prism of European standards’ (2019) 1 (39) Journal of Advanced Research in Law and Economics 66-84.
- Burlai Е, Norms of law and legal relations in a socialist society (Naukova Dumka, 1987) 91.
- Delacroix S, ‘Understanding normativity. The impact of culturally-loaded explanatory ambitions’ (2019) Revus 37.
- Didych T, ‘Value dimension of law-making in the modern legal worldview’ (2014) 5 Pravovyy svitohlyad: lyudyna i pravo 165.
- Green L, ‘The Normativity of law: What is the problem’.
- Gurvych G, Philosophy and sociology of law: Selected works (Publishing House of St-P. State Un-ty, Publishing House of the Faculty of Law of St-P. State Un-ty 2004) 848.
- Horodovenko V, ‘Institutional independence of judiciary in Ukraine: constitutional aspects’ (2021) 1 Visnyk Konstytutsiynoho Sudu Ukrayiny 85.
- Izarova I, Theory of the EU civil procedure (VD Dakor 2015).
- Izarova I, ‘Sustainable civil justice through open enforcement – The Ukrainian experience
studying’ (2020) 9 (5) Academic Journal of Interdisciplinary Research 206-216. - Izarova I, ‘Enhancing judicial cooperation in civil matters between the EU and Ukraine: First steps ahead’ in EU Civil Procedure Law and Third Countries: Which Way Forward? A Trunk and N Hatzimihail (eds) (Hart Publishing 2021).
- Kabalskyi R, ‘History of philosophical understanding of normativity as a socio-cultural phenomenon’ (2013) 79 (37) Collection of Scientific Works, ‘Gileya: Scientific Bulletin’.
- Kabalskyi R, Normativity of law as a subject of philosophical analysis (2008) Manuscript.
- Karnaukh B, ‘Standards of proof: A comparative overview from the Ukrainian perspective’ (2021) 2 Access to Justice in Eastern Europe.
- Kudryavtsev V, ‘Legal norms and actual behavior’ (1980) 2 Soviet State and Law 12-16.
- Lukasheva Е, ‘General theory of law and multidimensional analysis of legal phenomena’ (1975) 4 Soviet State and Law 15-22.
- Lukich R, Methodology of law (Progress 1981) 304.
- Maksimov S, Legal reality: The experience of philosophical understanding (Pravo 2002) 328.
- Marchenko M, Theory of law and state (Velbi 2004) 640.
- Nenovski N, Law and values (Progress 1987) 248.
- Ognevuik G, ‘Legal certainty principle in the decisions of constitutional courts of Ukraine and other countries’ (2019) 23 Visnyk Natsionalnoho universytetu ‘Lvivska politekhnika’. Serie: Yurydychni nauky 30.
- Petrishyn O, Shevchuck S, Problems of theory of law in manuscripts of M.V. Tsvik (Pravo 2010) 272.
- Rabinovich P, ‘Law as a phenomenon of public consciousness’ (1972) 2 News, Jurisprudence
106-116. - Rickert G, Philosophy of life (Nika-Center 1998) 512.
- Sabo I, Foundations of the theory of law (Progress 1974) 272.
- ShinerR,‘Law and its normativity’ (2009) Philosophy of Law and Legal Theory: An Anthology ed. By Dennis Patterson.
- Shumylo M, ‘The Semiregulatory role of legal opinions of the Supreme Court (on the example of the case of compensation for non-pecuniary damage in a family dispute)’ (2021) 7 Naukovi zapysky Natsionalʹnoho universytetu ‘Kyyevo-Mohylyansʹka akademiya’. Yurydychni nauky.
- Tsyppelius R, Yurydychna metodolohiya (Ruta 2003) 143.
- Yermolenko А, Communicative practical philosophy (Libra 1999) 488.
Reviews for article
Add a Review
How to cite it?
- R Kabalskyi, O Shevchyk ‘Does Normativity Contribute to the Effective Protection of Rights? Reflections on the Concept of Normativity in the Modern Ukrainian Doctrine of Law’ 2021 3(11) Access to Justice in Eastern Europe 155–169. DOI: 10.33327/AJEE-18-4.3-n000081
