Controversies between State and Law: Essential Aspect

Abstract

The article is focused on the general theoretic problem of differentiation between the essence of such social phenomena as the state and the law, which problem is scarcely developed in both, western and domestic science of law. The need of a theoretic and conceptual insight into this problem is implied, in particular, by the fact that domestic law publications still view the law and the state as phenomena of the same order and same essence, whereas the need of their differentiation is not only due to theoretic interests, but also due to practical purposes of improving the approaches to policy making and policy enforcement activities of the state. The article analyses the key views of law theoreticians and theorists in respect of the dual nature of the law, in particular, rational and irrational attributes of the law, combination of reality and perfection dimensions therein, etc. The article includes arguments supporting required differentiation of the law and state essence, identity of their essential characteristics, including the advantage of rational aspects and mitigation of irrational and moral aspects in the state essence and in operation of state bodies. The study includes a comparative analysis of the key controversies arising between the law and the state in the course of fulfilment of their functions on the essence and content levels. In particular, this applies to the process of state rulemaking, when a mandatory rule formulated by a competent authority of a state deprives of the properties which it possesses to become legal. Such a norm may be: unclear; full of contradictions; impracticable; devoid of legal content; devoid of enforcement mechanisms; collided with other norms; given back force; constantly changing; unpublished, etc. Similarly, contentious contradictions can arise in the process of legal regulation and enforcement. The authorities of the State which perform the relevant functions are not prevented from the inconsistency of official actions with the proclaimed norm, in the process of applying the competent authorities may give a false interpretation of the legal norm, apply double standards or discretionary powers contrary to the law, misuse the rights, etc. The article contains the conclusions on the reasons of such controversies and future research directions on this topic.

Keywords

• law; state; controversies; dual nature; rational; justice; policy making; policy enforcement