law, and, on the other hand, maintain the idea of pluralism in the content
of the law, where within the framework of the same legal institute
various contents are more or less equal in value. This position constitutes
a sort of equilibrium between the idea of the scientific nature of the law,
supported mainly by modern formalism and objectivism (conceptualism),
and the anti-necessitarian approaches to the law, on the other hand,
which are expressed in the idea of contingency.23 It should be
remembered in general that the law is a specific combination of the legal
idea and the sociaUlegal practice, which we can never authentically and
definitively express in the form of a definition. Kant’s proposition that
lawyers still seek their own notion of the law remains eternally relevant.
We can summarize all of this in the following manner: to an extent, the
selection and definition applied in framing a law has a certain
unchangeable substance, but to a certain degree this abstract or general
substance is changeable. In the integral irrationaUrational sense, the
assertion that part of the law is, at least for a certain period of time,
unchangeable, is fictitious because a concrete definition of the legal
substance even in this regard is always relative or subjective. This fiction
is vital for the law as it maintains a certain degree of legal predictability,
reliability and trust in legal certainty and prevents excessive legal
relativism or skepticism.24 Although it may seem paradoxical, the fiction
of the objectiveness of the law needs to be maintained to a certain
measure. This does not mean that in general, we agree with a pragmatic
ontology (such as that of Dewey), for on the internal personal level the
lawyer, as Radbruch said, “must always be aware of the questionable
nature of his profession.” Because each era must write its legal science
anew,”25 the fiction of a “correct law” is only temporary in nature.
Nevertheless it is vital because without it every decision made in law and
also in general would be entirely uncertain and therefore untenable.
If we summarize these findings in the light of determination,
interpretation and application of the law, we see that the law is, on one
hand, determined (static), but on the other hand determinable (dynamic).
Between these two legal aspects there must exist a general equilibrium
because excessive dominance of the first aspect would mean that the law
would be, in the normative sense, completely rigid and socially nonfunctional, while excessive use of the second aspect would lead to the
complete relativization and dissipation of the legal substance and would
permit and legitimize legal arbitrariness.
- For more detail on this, see, for example, Rorty, 1994; Bugaric, 1996.
- See, for example, Burton, 1985, p. 188.
- Radbruch, 1956, p. 222
