RUDN Journal of Law (Dec 2016)
The universal/contextual in rating the freedom by law
Abstract
The author formulates a post-classical approach to the determination of freedom and its measures. Law as universal measure of freedom is the ultimate abstraction. The specific content of legal measures of freedom is contextual. The meaning of the concept of «freedom» is determined by historical and socio-cultural frameworks and legal policy. The concept of «freedom» fills with concrete meaning through the definition of its measures, including the law, in each particular situation. Measuring of freedom is always «arbitrary» to the previous norm adopted another measure of freedom. In the act of legal innovation the measure of freedom will obtain social recognition. The universal exists in law as formal abstraction. The universal in law is the functional significance of law - ensuring the survival of the society. Formal abstraction as the essence or goal of law fills with specific content in the context of time and place. The universality of law as a measure of freedom is its social purpose. Among all nations and peoples and at all times, the constitutive norms always existed and exist for the appropriate society. They should be called law. The universality of law as a measure of freedom is a priori condition of the possibility of human, social and legal existence. It can be filled with particular content only in appropriate historical and social cultural context. Legal policy determines legal measure of freedom in post-industrial society. Legal policy is the activity of the ruling elites and reference groups to form the system of law, organization of social (legal) control and operation of the population on the reproduction of legal reality. Subjects of legal policy are: 1) the ruling elite and reference group who produce the new legally relevant maxim of law; 2) the masses who legitimize legal innovation or refuse to accept it.
