The focus of the paper is on the competition of two equally presentable scientific disciplines: philosophy of law and theory of law that have been recently intensified in modern jurisprudence. The demarcation of these concepts has been carried out; the question of their ontological status (entity significance) in relation to the law being which reflection they are is formulated and discussed. The paper proves that the basis for this experience is a completely different view of the same reality, which is occupied by modern theory of law. For this, the author again refers to the concept of contemplation, thoroughly thought out in German classical philosophy, and uses the hermeneutics of the three forms of image: reflection, reflection and image, proposed by G.-H. Gadamer in «Truth and Method», for the rehabilitation of the philosophy of law. It is concluded basing on the analysis of existential criticism of the prevailing forms of modern ideologies, that the existing theories of law depend on these forms. It is stated that a steady tendency had established in modern philosophy intending to return legal science to the origins of philosophical knowledge of legal reality. The actuality of the problem has been considered within the framework of digitalization of legal institutions.
It is well known, and especially clearly seen nowadays, that the importance of philosophy, philosophy of law, as a fundament of the entire body of social and humanitarian knowledge, invariably increases at critical, drastically problematic, and even turning points in history. This is due to the unique ability of the humanities to grasp and clarify the deep meanings of everything that happens, to identify the prerequisites and foundations of existentially significant events and phenomena, to capture the very essence of human existence in the world. Therefore, at the present stage of the historical evolution of mankind, it is quite obvious that the era of digitalization cannot do without philosophical and humanitarian components, despite repeated provocative statements on this score.
Digitalization has brought a number of impressive innovations into the life of modern society, which have been embodied in a complex of scientific, technical, technological, and industrial achievements. However, the digital society needs not only the technical knowledge but mentally needs the accompanying philosophical and generally humanitarian reflection of what is happening. Without it, society gravitates towards technocracy, falls into excessive scientism and relativism, consigning to oblivion the worldview and humanistic background of everything.
The paradox of the existential situation that has developed in the modern world lies in the fact that, despite all the scientific and technological power achieved, the digital era, due to its innovativeness, has not yet been subjected to proper philosophical reflection. This is one of the main worldview problems that hinder the formation of a general idea of the essence of digital society, strategy, and philosophy of digitalization. “Evolution draws strength from knowledge. “First knowledge, then actions”. In the case of digitalization, the scenario of the unfolding of events looks exactly the opposite: the rate of development of innovative digital technologies by modern civilization is much higher than the rate of development of scientific and worldview ideas about the essence, specifics and possible consequences of their implementation in society (Berkut et al., 2018). At a first approximation, one might get the impression that most of the problems accompanying digitalization are associated only and exclusively with the aspects of the functioning of the corresponding information and computer technologies, various methods, and models of mathematical origins. In reality, digitalization is a phenomenon not only of a technological but also of an economic, political, as well as a humanitarian, and sociocultural order. Such an extremely broad interpretation of the phenomenon of digitalization is oriented on a comprehensive understanding of its strategic objectives, accompanying its development in the present and facing it in the future.
The completeness of the world is the diversity of various kinds of things: mountains, animals, galaxies, etc. All this exists and possesses the being. It exists, it is real, which is equal - material. But not only material subjects there are in the world. Man thinks objects, it is being. And this counterpart, the twin of being - the thought of him, perhaps, is also there.
Sometimes these thoughts (these copies of objects (things)) do not resemble the original: “false”. When they coincide with the original: "truth." The thoughts are not independent, they essentially depend on their own another being, as they are compared with the objects, and not equal to them. And yet, as Hegel subtly remarks: “Even the criminal thought of the villain is greater and more sublime than all the wonders of the world” (Lukach, 1987, p. 372).
In the case of legal reality, the situation is the same. This being also always accompanies its ideal reflection - human reflections on justice - put in order. This is a theory of law: within the horizons of verity, we seek a coincidence, avoiding the inadequacy of errors. It is true, that in the arsenal of human language there is another word (and this should be recognized as a miracle!), which, in turn, is combined with this being that is “philosophy”. Both that and another - are two perfect copies of the same legal reality. Both versions of imitation (ancient Greek. - μίμησις); they arose, respectively, with the advent of ancient legal consciousness.
Rather a remarkable fact that in Athens annually 6,000 People's Heliaia (ἡλιαία) Judges were elected proves how powerfully this reality had been unfolded in the V–IV centuries BC in Greece. And such an incredible number of Judges had existed despite the fact that only citizens of the city-state could be elected. And from the 400,000 population, excluding slaves, strangers, children, and women, there rest only 30,000 of them, no more (Bonnard, 1957). That is almost one-fourth of all subjects of law in Athens not only stayed” in a certain legal space (trade, war, art, religious rites, etc. – everything “permeates” the horizon of justice or what is called “law”) but was forced, in the role of Heliaia member, to carry out daily initial reflection on this reality. So, the Socratic question: “What is justice in general? What is it as such?” was by definition to arouse a keen interest among the Athenians.
“Theory” and “philosophy”, and in our case “theory of law” and “philosophy of law” - what are these things? What are these kinds of being? How do they relate to the distant or, conversely, standing close, very close? How much do they cost in the sense of the fullness of being? Finally, how do these two reflections of the same reality relate to each other? In our days, all these questions are focused on the single, main thing: is any philosophy of law a theory? And vice versa: is any theory of law philosophical?
This question raises the extremely wide range of problems: from academic to ideological. The first category includes the difficulties of placing in the same educational field the jurisprudence of two equally respectable scientific disciplines; secondly, problems associated, for example, with the question: are the “State” of Plato or the “Philosophy of Law” of Hegel technological projects for the reorganization of society or do they carry any other meaning? If yes, then which one?
The history of this issue is as follows. First, the phrase Philosophy of Law appears. It is introduced into the circulation of Hugo and Hegel. Then Merkel in 1870 forms a collocation (mem): “Theory of Law”. But the subsequent demarcation of philosophical and legal disciplines created a rather paradoxical situation. So, if within philosophy the specification is from general (logic, phenomenology) to particular, down to a separate branch of knowledge, titled as Philosophy of law, did not raise any questions, then in the jurisprudence environment, the attitude to this science was not so liberal. The philosophy of law “not only competes but is actively and aggressively supplanted throughout the last 150 years with the theory of law” (as cited in Zhukov, 2009, p. 26). Here is a good example of passionate but unanswered love. This phenomenon of “crowding out” of one science by another, correctly noted by the cited author, needs close attention. Perhaps, in this case, the fact is evident when two types of cognition, dealing with the same legal reality as an object, try to understand it from fundamentally different positions?
Consider that it is essentially a special case of the more global question of the relationship between the two, perhaps, the most precious words in European history: “philosophy” and “theory”. For the Greeks who had created these two notions and, according to Heidegger (2010) the title “bios theorists” was of great importance. “Two of its roots, θέα, and όράω, can sound θεά and ώρα with different stress. Θεά means “goddess”. The goddess emerging to the early thinker Parmenides is “Aletheia” - the truthfulness due to which and in which the existing (being) is present” (p. 243).
In the modern science of law on the problem of demarcation of two concepts of interest, three approaches have been identified: the essence of the first is reduced to a quantitative distinction between philosophy and theory of law; the second, following Kant, suggests recognizing the authority of methodological control over philosophy as a theory of law. This is a variant of philosophy as a theory of theories. It is more complicated. Jurisprudence usually applies to it, becoming aware of the failure of quantitative distinction. The third approach is of particular interest, curiously due to its inconsistency. On the one hand, they categorically insist on a fundamental, qualitative difference (up to the opposite) of philosophy and particular science, philosophy of law, and its (law) theory. On the other hand, fixing this gap between philosophical theory in the original meaning of the word and theory in its modern treatment, representatives of this approach stubbornly reject the services of “mythological and practical” experience (Husserl, 1970). They insist on the fact that the reinterpretation of the meaning of the concept of “theory” occurred within the framework of the same paradigm of European history. The true unity of opposites. Unity - since both there and here, the same type of worldview is based on - rationality. The opposite - since here the completely different content of the concept of “theory” is to reason out: one is embedded by tradition into this word; another - appeared in the middle of the nineteenth century.
1. The first approach’s proposal is simple: it is worthwhile to include in the theory of law consideration of the “marginal foundations of the legal process” (Moiseev, 2003, p. 258), “morality, mores, value norms” (Ibid), etc., how this theory itself will turn into philosophy. The expansion of the theory of law, according to proponents of this method, is a simple panacea for all ills caused by the problem of demarcation of these two concepts. Moreover, if we supplement the undertaken research with a historical excursion -by a statement of ancient and new legal teachings, then the case can be considered complete. This approach would have yielded positive results if it had not been for the active resistance against the understanding that it encounters from the theory of law itself. The theory of law itself can successfully cope with this “generalization” without any special philosophical training. An attempt to leave philosophers with the right to “logical analysis and clarification of the basic legal concepts” (Moiseev, 2003, p. 7) causes indignation among lawyers. Any self-respecting science itself must carry out criticism of its own fundamental categories. The certainty of the subject should dictate the certainty of the ways of its knowledge. If the legal reality is a certain specific field of being, then the method exploring it must have the corresponding specificity. Is this why the “dislike” of the theory of law comes from the philosophy of law, G. F. Shershenevich points it out at the beginning of the XX-th century (Zakhartsev & Salnikov, 2018).
2. The second approach determines the right of philosophy to implement methodological control over various theories. This is a kind of theory of theories of law: “The philosophy of law studies various theories that have been put forward throughout the development of human thought to explain the nature of law” (Berkut et al., 2018).
Kant, emphasizing the importance of critical philosophy, for the first time in history subjected various forms of cognition to a careful analysis. He pointed out that mind, reason, will, aesthetic ability, etc., cognize the world from the point of view of their definitive foundations (a priori forms), while the critical philosopher cognizes these very bases (identifies, compares, etc.). But Kant, describing them empirically, brought his own philosophy into a question about the very universal form of knowledge, which he used, but about which he did not mention a word. Fichte’s science of cognizing grows organically from the philosophy of his predecessor. Just Fichte, developing the universal form of scientific knowledge, gave rise to the experience of creating the dialectical method.
The modern author, cited above, replacing the empirical listing with historical did not go away from this methodological problem, upon which German classical philosophy stumbled. He singled out “historical, psychological, idealistic, etc.” theories of law (Sinha, 2006).
So such a reflective approach, firstly, immediately destroyed the uniqueness of the philosophies of law of Plato, Aristotle, Augustine, Spinoza, etc. Secondly, in the Kantian way, “modestly” left behind the creation of the first true philosophy. Philosophical thought had already passed this deadlock of the theory of theories two hundred years ago (Shestopal et al., 2017).
3. By the beginning of the XX-th century, in solving the problem of demarcation of the philosophy of law and the theory of law Husserl, formulating the task of creating philosophy as rigorous science. His struggle for phenomenology, as a counterbalance to the dominance of historicism, psychologism, and naturalism in science, forced him to turn to the origins of European thought. And he reminded rather categorically that the Greeks had the concept of “theory” that was quite different than now. At that time, it primarily meant “epoche from any practical interest” (Husserl, 1970). But “epoche” (Greek ἐποχή) means – “delay, stop, hold, self-control.”
That is, in the history of European science, within the framework of the same paradigm of total rationality, exactly one hundred years before this remark by Husserl (2013), there was a kind of “break”, “turn” (Yakoviyk et al., 2018). Very precisely, in his first thesis on Feuerbach, Marx states it. There he defined the whole philosophy just as contemplative, just like the “epoche” from practice. But this is not interpreted as a merit, but as a vice! Incidentally, it is appropriate to ask, for example, the very founders of Marxism: how do they, Marx and Engels, call their views on the world? The answer will be simple: “our theory” (Marx & Engels, 1989). The fact that this turn from the ancient format: “theory from practice” to the new: “theory for practice” turned out to be universal is illustrated by the fact that seven years before Marx’s theses on Feuerbach A. Tseshkovsky expressed a similar idea.
In 1927, Heidegger made a sharp remark about the relationship between philosophical knowledge and knowledge of the positive sciences. Regarding our subject, its essence can be reduced to the following: the methodological difference between mathematics and the theory of law is not as great as the difference between philosophy and theory of law. And 25 years later, Heidegger in the work “Science and Understanding” cited above, analyzing in detail the essence of the Greek “theory”, using the phrase “natural law theory” that interests us, sad that it is more likely to “obscure” the very essence of law.
It is difficult to find among thinkers of the XX-th century the person who might be equal to Heidegger in courage in contraposing philosophy and private sciences, or, as he calls them: ontological and ontic knowledge (Heidegger, 1960). The fact is that a new understanding of “theoria” as a theory for practice (rather than theory for theory) became the fundamental basis for the following three iconic innovations of the last two centuries: firstly, the phenomenon of the general decadence of ideology, where social knowledge was immediately conceived as a project for the reconstruction of society. Moreover, the decadence of all three major forms of ideologies: communist, liberal-capitalist, and national-socialist; secondly, the independent registration of natural-scientific and humanitarian knowledge, where the ancient thesis about the contemplative type of rationality was rejected on the wing; thirdly, the history of philosophy itself began to be seen as the history of the struggle of materialism and idealism. Here, miraculously, ideological reason transferred its “sores” - its own dualism of understanding theory and practice - to its vis-a-vis- philosophy. The reason announced that it was miserable philosophy, tat starting from Ancient Greece, was tormented by the opposition of these two supposedly “philosophical” directions. And this obvious nonsense was perceived by the enlightened public with enthusiasm! It should be recognized that if the last innovation became a sign, a forerunner, then the first two became a real event in the nearest history of mankind.
Purpose of the Study
The main aim of this article is determining the place and role of philosophy and theory of law in digital era, refuting the opinion of the lack of demand for philosophical and, more common, humanitarian knowledge in modern society striving to train highly professional, but narrow-profile specialists. The research is devoted to analyze the correlation between the theory and philosophy of law in the context of digital transformation of social relations. The acceleration of information flows, an increase in the amount of disinformation, the emergence of new digital actants leads us to search for stable philosophical and legal foundations, creating the stable grounds for social relations, keeping universal human values unshakable.
The competition in modern digitalizeing jurisprudence of two respectable scientific disciplines: the philosophy of law and the theory of law, has so far reached such a poignancy that the relevance of the problem of demarcation of these concepts is beyond any doubt. The paper considers the main approaches to solving this problem, among them three main ones are distinguished: quantitative, reflexive and phenomenological (existential). Each of these approaches has corresponding origins in the history of the classical philosophical tradition. Moreover, this approach allows us to go further than the popular ideologies of the last two centuries (Tseshkovsky, Marx, de Gobineau, etc.), which directly present a different view of the world. Existentialism reveals the essence of any ideology on the one hand, and strive to distance it from the other, on the other. This is a rarity in the modern world.
The article consistently analyzes the problems of digitalization in the context of philosophical reflection, reveals the socio-humanitarian strategy of digitalization, and focuses on deviations in the development of scientific knowledge and jurisprudence in Digital Age.
The authors use such methods as analysis, synthesis (the method is reflected in the generation of a general definition of philosophy of law), deduction, as well as a method of continuous analysis, the use of which made it possible to conduct an overview comparison of philosophy and theory of law. This study argues that the «attack on the existing order of things», «the abandonment of the ancient» epoch or «invasion of reality» (Heidegger, 2010, p. 117), is the unified basis of all three dominant ideologies of the twentieth century: liberalism, Nationalism and communism, the direct heir of which is most of the theories of the law of modern jurisprudence. Similar to the theories of law, the author contrasts cognition, which first manifested itself in the «State» of Plato, «Politics» and «Ethics» of Aristotle, and reached a classical pattern in Kant’s Metaphysics of Manners, as well as Hegel’s Philosophy of Law. The paper proves that the basis for this experience is a completely different view of the same reality, which is occupied by modern theory of law. For this, the author again refers to the concept of contemplation, thoroughly thought out in German classical philosophy, and uses the hermeneutics of the three forms of image: reflection, reflection and image, proposed by G.-H. Gadamer in «Truth and Method», for the rehabilitation of the philosophy of law.
Heidegger in 1927 points to the gap between philosophy and theory, and in 1929 exposes its essence- at the meeting of natural scientists and humanities of the University of Freiburg, accepting the post of professor of philosophy, in front of scientists as familiar with the implementation of the reflecting theory into practice and vice versa is as your favourite slippers. And so all three social projects of a global reorganization of the world - ideology - have already been placed there. Heidegger seeks common ground for this new attitude towards reality and states it: science is guided by three “things”. “These three — world relations, attitudes, and intrusions — in their original unity bring incendiary simplicity and acuteness of presence into scientific existence” (Heidegger, 2010, p. 97). As Hegel would say, here we are dealing with three concepts that, on the whole, form an inference: “world attitude — attitude — invasion,” where each term mediates the other two. Who closed the existence of being to the knowledge of a scientist? The answer is given by Heidegger a little higher: “the freely chosen attitude of human existence” (Heidegger, 1960, p. 17). Heidegger does not reproach the positive sciences; he simply states a fact. The naturalist, who deduces in his theories the regularities in his subject, is, mostly, not interested in the truth of nature, which is in itself. The reason for this is that I have already put on my eyes the “glasses” of practical goal-setting. Energy-producing power plants, liners that overcome space, atomic weapons that strengthen state sovereignty, etc., obscure the eidos of nature. The same thing happens in the consciousness of the humanities. Mental health, economic prosperity, the building of a rule of law state, global projects for reorganization society, etc., precede the cognitive process of scientists, blind them.
Hegel (1980) once noted the difference between ancient and modern philosophers: if in the Greco-Roman world philosophers lived separately from society, and in the Middle Ages the only clergy were engaged in it, then in modern times
they live in the conditions of their time, are connected by many channels with the surrounding world and with the course of events in it; so, they philosophize only in passing and philosophizing is some kind of luxury for them” (p.243).
The thesis of Marcuse “Science and technology as ideology” (Marcuse, 1968), carefully analyzed by Habermas, falls into the very essence of the modern state of things (Habermas, 1971). “The concept of technical reason, perhaps itself is an ideology” (Habermas, 1971). The science being understood in a similar way, proceeds from the initial distinction between theory and practice, thinking and being, universal (entire) and special (particular). And here the science is completely opposite to philosophy, which in all its historical forms proceeded from the unity of mentioned factors. Then all kinds of modern theories of law are the further specification of various projects of social technologies for the reorganization of society. And they recognize themselves in a historical connection with anyone single, the specific form of ideology (liberalism, communism or fascism) or not. That is even not important. Since their goal is not to understand (which means, according to the definition of Spinoza, it is imperative to justify), but to transform reality, this means that their position corresponds exactly to an “attack” on the existing order of things (Dostoevsky) or prepares a “burglary” of the existing being of law (Heidegger, 2010).
Hegel felt this moment very subtly; and in his Philosophy of Law, he sharply distanced himself from similar experiences of modern theories of law.
To grasp the mind as a rose on the cross of modernity and rejoice at it - this rational understanding is reconciliation with reality, which philosophy gives those who once heard an inner voice, demanding comprehension in concepts, preserving subjective freedom not in a special and random, but in what is in himself and for himself (Murphy, 2018, p. 25-28).
The philosophy of law and the theory of law are two forms of cognition of the same reality, which have completely different directions. One is aimed at understanding this reality, the other - to remake it. What is their “power of being” (lat. Valēns), taken, firstly, in relation to being of the law itself and, secondly, in relation to them to each other? Speaking more simply, why does legal reality itself create for itself an “intellectual duplicate” - the “theory” ("Θεωρία") of law? And what is the point of reduplication this reflection into a “pure (philosophical)” theory and a theory aimed at practice?
The development of Gadamer’s idea about the hermeneutical relevance of Aristotle and the existential valency of the image(representation) can provide answers to both of these questions. It is extremely important that in the central part of his treatise “Truth and Method” he turns to the Aristotelian comparative analysis of judicious justice (phronesis) and techno. How much in common between them! Both of them seem to be a practice; and knowledge of the general is required; and in the application (to the particular), a transformation of the original plan is possible, etc. The single thing does separate them, but this one is worth all the other identities: judicial action has a purpose in itself, while handicraft production is “outside of itself”. That is, let’s take an extreme case, even if an unfair decision saves all of humanity from absolute destruction, it still does not should take place in the horizons of the phronesis. This was already absolutely clear to Aristotle. And this was only the dawn of European history.
Throughout the work, Gadamer searches for examples of the same total mediation. In such a valency of being, the legal reality, on the one hand, is identical with the phenomenon of game, on the other - the religious application of the Law, carried out in preaching. Finally, in the world of art, there is nothing else but an example of that “intellectual contemplation”. Here, the work is subject to contemplation, that is, something phenomenologically existing, created by an action that does not want anything “for itself”, but only expresses “for itself” its subject and at the same time demands from the contemplator exactly the same freedom.
Gadamer concerns all these. In all these, he seeks the power of his being. Only one question escapes his attention: the question of the existential valency of his own project of universal hermeneutics. Why is that? The answer to this question is a matter of independent research. In the meantime, pay attention to the basis that allows Gadamer to fill the word “valency” with new meaning. Chemistry by that time was ready to get rid of it, whereas in philosophical hermeneutics it found original application. Trying to understand the peculiarity of modern European arts, Gadamer takes the original concept of “reflection” - das Spiegelbild. Take a closer look at his experience of interpreting the “existential image valency” (DieSeinsvalenz des Bildes”) (Gadamer, 1975, p.171-172) of this painting with a further projection to her question “is the experience of the classical philosophy of law the theory?
It should be recognized that in the aforementioned reflection of reality with its subsequent “practical application”, the essence of all modern types of the theory of law dwells, while all types of philosophy of law exist only within the horizons of the image of this reality. And the demand for either one or the other, or both ways of dealing with the same legal reality is determined by the reasonable necessity of the history of this reality. Until Hegel, inclusive, European thought perfected this model. But without reflection on the alternative, both aspects of this system - the reality of law and its philosophical image - remained closed to themselves. In this sense, philosophy itself provoked the emergence of ideology, and philosophy of law - abstract legal theories of the XIX-th and XX-th centuries. The greatest dissonance in reality between phronesis and technology was needed. So that philosophy in overcoming this dissonance, on the one hand, and the legal reality of European thought, on the other, would regain their identity.
The more clearly and definitely the modern theory of law has offered itself to the needs of the day, the more clearly, the outlines of its own opposite are, moreover, historically, even its predecessor - the eternal experience of legal philosophy especially in the present difficult time of accelerating informational storms and floods of knowledge, a time of changing historical eras, breaking paradigms, updating the traditional system of values, and all the established worldview priorities.
The philosophy of law (always and today) is called upon to resist the whipping up of absurdity and destructiveness in the legal sphere; it is necessary to preserve and strengthen internal self-organization and courage of spirit (Mordovtsev at al., 2017). The significance of philosophical and legal reflection in the era of digitalization lies not only in the creation of new, constructive, and socially significant meanings but also in the preservation and transmission of previous ideological attitudes, which have confirmed their significance and effectiveness in history and in practice. Philosophy and theory of law are designed to cope with the task of preserving and strengthening the cultural and creative position of man in the modern world. The vocation of the philosophy of law is to be responsible for the world around us and other people, to make thoughtful balanced decisions. This, first of all, concerns the performance of those tasks that, a priory, are not subject to algorithmic, mechanical computer-aided thinking.
This article is a research report carried out under a grant from RFBR № 20-011-31624 "Transformation of social and political relations and public-power communication in the political process of modern Russia under the impact of through digital technologies: forms, technology, actors and digital actants".
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21 June 2021
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Shestopal, S. S., & Kachurova, S. V. (2021). Synergy And Contradictions Between Philosophy And Theory Of Law In Digital Era. In & N. G. Bogachenko (Ed.), Amurcon 2020: International Scientific Conference, vol 111. European Proceedings of Social and Behavioural Sciences (pp. 866-875). European Publisher. https://doi.org/10.15405/epsbs.2021.06.03.115