23.07.2018, 11:59

The public power of law in the philosophy of law

UOT 321. 01; 340. 11:1

Pashayeva A.N.
PhD in philosophy, researcher at the Department "Islamic Philosophy", Philosophy Institute of NA of AR,
Baku (Azerbaijan)


Download: VOL-1-No-19-2018.pdf [2,32 Mb] (Yüklənib: 18)

The public power of law in the philosophy of law

Human is a social being naturally and he has a need to communicate with beings like himself. This communication fulfills his desires and demonstrates his character. According to the law of nature, a human comes into the world through the father and mother in a small community, then he creates his material and spiritual world as a result of their care and attention, and tries to provide himself with everything he needs. Any value which he achieved, shows the extent of his power, because after the childhood he communicates with others and fulfills the requirements by communication. On the other hand, there are similarities between people’s requirements. In these case the abundance of conflicts and interests, as well as, the provision of life are required. The law is consisted of the basic social law and international law as an indicator of the accumulated legislations and special systems to maintain public order. Given the power and might of law in public life, we consider it necessary to analyze the key issues related to law in our research. The law does not have only public power, but also has a special influence on individuals. Today, the need for law and its power manifests itself in all areas. That’s why, relationship between the law and public, as well as, the law and the state always attracked the philosopher’s and legal philosopher’s attention.

The main purpose of research
The philosophy of law is one of the main themes among the philosophical sciences, and it is a science studying the evaluation of the legal regulations. The law, as an authoritative science, analyzes the general issues related to the rights, including the bases of law, methods of law that are connected to the logic, the various features of the legal and ethical issues and their different aspects, and studies its implementing in society. The general ideas about the law, as well as, the different aspects of law are being discussed, i.e., the positive and negative relationship between the morality, justice, freedom, state and rights, including the legal doctrines, are being analyzed in this specialty. Most importantly, this science was formed to study the legal structures. Here is talking about different aspects of law. Law and ethics, law and state, law and public and etc... Although all these issues are on the principles of law, the public power, influence of law and its acceptance among the people were neglected. The main purpose in the current study is to analyze the social advantages of law from both philosophical and legal point of view.

Issues, analyzed in research
Since the thinking human has become self-aware, knows that it is not right to create chaos and use force to maintain a healthy environment, and even it is unacceptable to allow such situation. Man, being a member of any communities, must behave in society on the basis of certain rules. As in all times, today, these rules are also called “the law”. The law recognizes the privilege of others and gives the man a special force to regulate the relationships between people in society and maintain social stability. These privelege and power are called “the right” and predominates in all stages of human life. For instance, “right to live”, “ right to marry”, “right to property”, “freedom to choose work” and other that belong to individual rights.
It is explained by the scientists that how the law is consisted of the rules, i.e., how the linguists interpret the law? In general, “the law” in a plural form, in other words, it is a system, but its singular form, it is “rule, right”. “The right” is explained in these research as: “the right” is an authority and power, it is given to those who adopt a decision on individuals or their property on the basis of the legislation. (1. p. 125). The law is the privilege intended for legal entities of the country. Almost the law is consisted of the accumulated norms of international law, as well as, the laws that provide the humanity's socio-political and individual freedom in all times and places. (2. p. 441).
The term of “the philosophy of law” was firstly used in Hegel’s book “Philosophy of Right”. But the legal considerations, i.e., all issues related to law, have an ancient history as the law itself. If we look at the history of philosophy, we can see that people recognized the law as a sacred act, and called its rules and orders as a divine command. Due to the divine law are stable and does not change, its rules also steady and changeless. Nobody had right to impair the sacred rules. As a result of the emergence of other cultures, the law has gradually lost its divinity and became public. In such a situation, the law was considered the most important tool of western culture. Then it was decided that the Western thinkers should write the philosophy of law themselves and construe the law in accordance with their own desires and tendencies. Therefore, their main goal was to study and analyze the essence of the law, legal structures and their features, various opinions and other issues related to the law. The philosophers have analyzed the essence of law and its principles, including the theory of law from the philosophical point of view, and proved the structure of this science, its advantages and necessity for the society on the basis of the logical arguments, at the same time, demonstrated their different aspects. The Western culture has clarified the essence of the law and the right, as well as, the differencies between them, along with determining not only practical, but also the philosophical aspect of law.
It is necessary to refer to the Western and Greek philosophers’ Works to understand the social power of law more deeply. It is very difficult to understand without analyzing and studing the scientific results obtained by the Greek philosophers. According to Frederick Capleston, the Greek philosopher’s main target was to perceive the world of being by the intellectual way (3. 1, p. 97).
He has praised Plato’s theory and called it the discovery of existing world. In his opinion, the law is a tool which discovers the real world; the law is the discovery of reality (4. pp. 29-30). As a result, Roman lawyers applied Plato's theory of law in many scientific and legal issues. Plato stated that the law is a tool protecting and regulating the discipline of the public on the basis of a certain limit. According to him, aim and idea belongs to law. He considered that the rules are necessary for society, and mentioned that they are consisted of the solutions of community, and the community is governed just by rules (4. pp. 31 & 37). Plato’ this idea demonstrates the necessity of the relationship and connection between the law and community. In addition, he stated that the law is ahead of everything, and manages the mind to the right direction. In his view, social living should be administered under the laws (5. p. 28). But according to Aristotle’s opinion, the rules are moral value for citizens, but the law is a special degree. According to him, the advantage of the citizen is that he can make a decision in accordance with the law and which will obey the law (6. p. 255). The law teaches us what to do, and explains the necessity of our responsibility and considers their execution necessary. The law order us two things in particular: you can or you can not; in other words, to obey the laws and failure to comply with the elements which are against the law; the law teaches us what we should do or what we should not; the law defines the rules of public and tasks relating to public. The philosopher’s aim is to evaluate the human’s awareness about the world. Because the world around us belongs to the people; i.e., the philosopher tries to describe the human cognition. Such comprehension prepares the social system, and even an ordinary man in this social system tries to adapt his impression about the nature and human qualities, behavior and activities to the nature. Therefore, philosophers paid more attention to the concept of law. It should be considered that philosophy is not separate from other sciences, philosophy combines all sciences and takes full precedence over them. Its precendence is the philosophical study and analyzing the law and its rules.
In legal philosophy the law could be explained as: “the law is a special science, the theme of which analyzes the social and historical events and explores the governing rules on society”. The law not only engaged in observation and analyzing the social issues, but also pays attention to the presidency, the creation of laws and the implementation of new ideas; the law is the collection on the living rules of community. If any law remains outside the social events and can not benefit to community, it is considered to be worthless.

The social goal of law
The social relation is the target of living rules and law, in other words, the law reflects the social relations of living rules. More specifically, the law not only disciplines the society, but also establishes a connection among people. The development and expansion of existing regulations cause the commitment among people. Because each honest man examines his action and attitudes, and learns a lesson. If this exploration is his desire, so there is an influence of the social events, too. How a human can be exacting to himself without social issues? It is known that the legal and social rules are very significant. A man develops himself, because he wants to be better than others and to have influence, but he can not do all of these on his own. For this are required more stable standards, which are within the framework. These norms exist only in social life and legal regulations. The main objective of the law is to to develop and strengthen social relations by protecting human and social life and on the basis of cooperation (7. v. 1, p. 293). If there are conflicts and various battles between the people, it leads to the degradation of mankind, not to the development of human. The advantage of social and legal targets is that they prevent factors that are contrary to humanity, simulatenusly, demonstrate the ways to solve them, call all people for unity. The humanity’s values were formed with a human, i.e., they exist in his disposition regardless of the preferences of any creature. Therefore, these values are formed in different times on the basis of new ideas, according to those times.
If we refer to the Islamic thinkers while analyzing the social target of law, we can see that the social and legal norms were analyzed in their Works as an important issue. Cooperative relations between people are being explored more here. Nasreddin Tusi mentioned that: the human needs for the existence of society, because the existence of society directly proves the distribution of effective communication. People’s support each other and accepting the aid as much as needed are social demand. (8. p. 154). It should be focused on an important point in Tusi's views. He has attributed the goal of social relations not only to the core of the legal regulations, but also to the important issues of social life.
The law is closed to the nature and reflects the principles of the state. These principles are called the common law and public law. The question arises: Are the spiritual and social welfare possible without the law? The most clear idea about the law in our minds is our compliance with the requirements of the law. We see the existence of law and regulations in our and others’ daily life. It should be taken into consideration that social demands apply not only to the nature of the legal regulations, but also the morals, customs and traditions; in other words, the law does not cover only social problems, but also reflects the morals, customs and traditions. It should be paid attention to the legal rules, at the same time, serious efforts should be made to study the connection of law with other social systems. The public power of law is closed to the rules, i.e., the rules reflect the socio-political, scientific, cultural and other spheres of people’s life within the law. The rules which do not reflect the social issues, are considered to be useless.
While analyzing the public power of law, we can come to a conclusion that the law combines the rules and considers necessary to implement the laws. Moreover, the main power of the law in the society is to determine the social goal by showing the value of laws. The law pays attention to analyzing the ethic problems and positive and negative aspects of the rules, as well as, the differentiation between the rules. The purpose all of these is to demonstrate that the public power of law is a dominant force on the people.

1.Afrigi ibn Mansur. “Lisanul-Geyb”. V. 1, Beirut, publishing house (dateless). Raghib Esfehani “Al-mufradat”. Creator: Muhammad Syed Gilani. Beirut, knowledge house (dateless).
2.Hassan Keyr. “Al-madxalu ilal Ganun”. Publisher: Education organization of Alexandria, the fifth edition, 1974.
3.Copleston, Frederick. “A History of Philosophy”. Westminster, Image Books 1964.
4.Cairns, Huntington. “Leqal Philosophy from Ploto to Hegel”. The Johns Hopkins Press, Baltimore 1949.
5.Saunders, Trevor J. Plato: “The laws”. Translation with an Introduction, Penguin Books, Hazel Watson Viney Ltd, London 1970.
6.Martin, Golding. “Phlosophy of Law”. Prentice Hall 1975.
7.Nasser Katouzian. “Philosophy of Law”. Essence and definition of law. Tehran 1997.
8. Khaja Nasiraddin Tusi. “Axlagun-Nasseri”. Bombay 1267.

The public power of law in the philosophy of law

The public power of law should be the main source of analysis, along with many other topics in philosophy of law. Because the main target of law is to maintain discipline on tha basis of the rules, as well as, develop it among the people. Besides being a science, the law is a main source developing human morality and creating public relations among people. Taking into consideration all of these, the research analyzes the public power of law from the philosophical point of view, and demonstrates the social demands of rights belonging to human.

Key words: philosophy of law, jurisprudence, public power of law, community.