emphasizing the requirement for the law to have a stabilizing function
that does not allow the law to succumb to excessive one-sidedness, for
instance, being excessively programmatic. However, this can only be
achieved by establishing an appropriate balance between the static and
dynamic aspects of the law.
The static aspect of the law is an expression of the illusory idea of an
objectively definable legal substance. The dynamic aspect is an
expression of an understanding of the socially and otherwise conditioned
dynamics of legal development. The illusion of a static aspect is created
by the rational form of the legal substance in which, under the influence
of irrational factors (such as intuition, emotions, and will), the
developmental nature of a rational approach is consciously restricted.
Translated, this means that while the mind still recognizes different or
opposing possibilities from those laid down in the legal acts, it
nevertheless remains “fixed” on the substance contained in the legal acts.
At the same time, irrational factors can create within the individual a
psychological feeling that this substance forms a homogenous unit,
which can only be comprehended in a single correct manner. In this case,
the mind is of course actually “fixed” only within the legal sphere,
because on extra-legal levels it can oppose the legal substance through
various theses, antitheses, etc. On the other hand, we have an idea of the
rationally dynamic aspect of the law. This is an irrationally conditioned
expression of “liberated reason,” which in its discriminating capacity
internally divides legal concepts into many different sub-concepts,
thereby destroying any possibility of comprehending an individual legal
norm or institution as a substantive unity. In this extreme, we are
confronted with an infinite dispersion or an infinite pluralism of the legal
substance, which upon rational reflection enables unlimited diversity in
the empirical social sphere to which the law relates.
At the level of legal discourse, these two aspects represent the difference
between the idea of the scientific nature and the contingency nature of
the law. These constitute a dualism between the “objective”, on the one
hand, and the “coincidental,” the “optional,” the “selective,” etc., on the
other. Both aspects are one-sided and as such imperfect since they are
merely parts of a holistic whole. But because man cannot think in terms
of unities or wholes, in the law a suitable equilibrium or proportion at
least has to be ensured and the degree of complementariness between the
static and dynamic aspects of the law and legal acts optimized.22 It is
necessary to rationally maintain the idea of an autonomous and objective
- Compare Sunstein’s findings on the relationship between (constitutional) law and politics
(Sunstein, 1994, pp. 126-127.)
