Download Co-existence of Single Positive Law and Plural Normative Orders:

Bizina Savaneli
Dialectical
Jurisprudence
2011
1
This work is a more modified and slightly expended version of my article of one
published in “The Journal Jurisprudence”, Volume Six, Trinity Term, April 2010.
It appears by kind permission of editor and publisher of the Journal.
Substantive revision was made: Mon Apr 15, 2011.
THE JOURNAL JURISPRUDENCE
VOLUME SIX, TRINITY TERM, APRIL 2010
Made in USA, Charleston, SC, 28 April 2010
EDITORIAL: CONTEMPORARY LEGAL THEORY
Extract
“Die Menschenwuerde ist unantastbar” – Human dignity is inviolable. So starts Article One of
Germany’s Basic Law (Grundgesetz). After the nightmare of mass murder and the disrespect of human rights,
no calmer yet more radical statement of the central role of human rights in the Post-Westphalian era can be
found. In this issue of the Journal, Jurisprudence we examine what Duncan Kennedy calls “post-positivist
integration” – the rise of a constitutionalized and humidified global legal system centered on human rights,
economic freedom, and seeking to attain peace through prosperity via the rule of law and open borders.
As your guest editor I am pleased to say we have found several exciting and thought provoking essays
for your consideration each of which addresses one or more aspects of post-positivist integration. . .
Professor Bidzina Savaneli in final articles describes a dialectics between human rights in national and
international law and between positivism and natural law in the second article. He argues, quite correctly, that
human rights are now the focal point of the international system, the sine qua non of the juridified and
constitutionalized international legal system. I share his point on the central character of human rights in the
post-Westphalian international system – and so does Professor Duncan Kennedy.
Interestingly, Professor Savaneli seems to argue that positive law states what ought to be and that moral
theory, as a reflection of the material facts of society states what is – a reversal of the usual correspondence
between positivism as “is” and moral theory as “ought”. While I happen to think that the is/ought dichotomy
arises from misreadings of Hume, and thus is a blind alley, the supposition that one cannot infer “ought”
from “is” is so prevalent that Professor Savaneli’s article is noteworthy at least in that context – as well as for
raising the idea of dialectics in law. Moreover, he points us to interesting legal scholars from the Caucuses
who might otherwise go unnoticed due to distance and language.
Professor Savaneli also, to my view, rightly critiques Kelsen, and also argues that comparative legal
theory should not merely compare laws within one system (civilianist or common law) but also between
different systems. Professor Savaneli’s post-positivist theory is interesting and highly relevant as an example of
the post-positivist consolidation of legal theory currently taking place within contemporary legal thought.
Whether this consolidation can lead to peaceful global governance via human rights is one of the key practical
questions of our epoch. I believe it will be answered in the affirmative.
I believe these weaknesses in contemporary liberal theory which undermine globalizing
constitutionalization and juridification of human rights can be surmounted using dialectics and materialism.
Seen in this perspective, the presented article hopefully takes on deeper meaning due to greater context...
We wish to thank the authors heartily for their kind contributions. And, to our readers:
Bonne lecture!
Dr. Jur. Eric Engle, Guest Editor, the Journal, Jurisprudence
2
Contents
Abstract …………………………………………………………….……..……….... 4
Introduction ………………………………………………………………………… 5
I. Legal Monism and Normative Pluralism ………………………………………. 7
II. “Purification” of Jurisprudence ……………………………………………..... 10
III. Functioning of Normative Order in Unofficial Space …………….....……….15
IV. “Law in the books” and “Law in the actions” ………………………….……. 23
V. Mutual Transition of Single Positive Law and Plural Normative Order ...…. 29
VI. Rule of Just Law under Universal Human Rights Law …………………...... 36
VII. Summary …………………………………………………………………….... 44
© Bidzina Savaneli
No part of this publication may be
reproduces in any material forms without the
written permission of the copyright owner.
All rights reserved.
3
Dialectical Jurisprudence in the Frameworks of
Universal Human Rights Law:
Harmonization, Mutual Transition, Spiral and
Evolutionary Development of Single Positive Law and Plural Normative Order
Related to the New Comparative Normative Order Study in the
Context of Conflicts Resolution
Abstract
I. In contemporary world we have three levels of Single Positive Law: single international law of all states
(common international law), single international law of group of states (for example, the European Union law,
Organization of American States and African Union law) and single laws of nation states (laws of UN member
states).
In contemporary world we correspondently have three levels of Plural Normative Order: plural
international normative order of all states (common international order), plural international normative order of
group of states (for example, the European Union normative order, Organization of American States and African
Union normative order) and plural normative order of each nation states (normative orders of UN member states).
II. Single Positive Law or Legal Monism (Public Positive Law and Private Positive Law) indicates how
public bodies and private persons ought to act ideally. Plural Normative Order or Normative Pluralism (Public
Normative Order and Private Normative Order) shows how public bodies and private persons acts really. Legal
Monism (what ought to be) and Normative Pluralism (what is) never coincide.
III. The “legal families” theory or Comparative Law ignores the phenomenon of normative order.
Almost all scientists operating in comparative law and legal theory ignore any role of practice of individual
normative acts of public bodies and private persons in formation of normative order. However, the state and certain
combination of practice of individual normative acts of public bodies and private persons construct individual legal
face of country, which is always different from normative orders of other countries, disregard that both could be
even entered in the same legal family. So it is necessary to introduce a new branch of legal science: Comparative
Normative Orders Study, which at the beginning should not be investigating in the frameworks of Comparative
Law Study. In this sense I put forward an idea of practical jurisprudence.
Comparative Law is the part of Comparative Jurisprudence. Another part of Comparative Jurisprudence is
the Comparative Normative Order.
IV. It is a deep mistake to consider positive law as decisive factor of conflict prevention and resolution,
because unjust law of legislative power could be factor of conflicts. Important factor of conflict prevention and
resolution is the formula: “Making just law makes a dry tree green”, as Shota Rustaveli - the famous Georgian
philosopher and poet of the XII Century - proclaimed. The Idea of Just Law suggest what sort and kind of law
legislators (in Roman-Germanic i.e. “civilianist” legal space) or judges (in Anglo-American, i.e. common law legal
space) should make, so that any laws would be just from the Universal Human Rights Law.
V. The Mutual-Transition of Legal Monism, Normative Pluralism and Idea of Just Law must be based on the
Universal Human Rights Law as Basic Norms’ Entity, and this process must be repeated dialectically, i.e.
spirally, constantly, evolutionary and endlessly. Therefore, we the people of the world need a New Human
Philosophy under the auspice of Universal Human Rights Law, which links the East and West, North and South,
ethics and religions, public and private life, technologies and environment, and the myriad problems, which have
never been exist in the history of Humankind in widespread aspect. Humankind has one high type of law Universal of Human Rights Law as the pick of World Law, which rises above internal and international positive
laws and normative orders.
Visiting Professor of Department of Law at the St. Grigol Peradze University,
Dr., Ph. Dr., Mr. Bizina Savaneli
4
Introduction
Globalization in modern world reflects such transnational problems which have never been exist in the history
of mankind in widespread aspect: Monopolization of World Economics and Extreme Poverty, European Union and
NATO, World Bank, IMF and Developing Countries, International Drugs Network and Terrorism, Internet and Email, Islamofobia and Judafobia, Global Warming and Ozone Depletion, Deforestation and Marine Pollution, Israel,
USA, UK and Muslims, Contraband Armaments Traffic and Unregulated Financial Transfers, Amnesty
International and Greenpeace, Coca-Cola and Macdonald’s, Exhausting of Non-renewable Earth Resources and
Neo-colonialism, Corruption and Illegal Human Trade, International Trade Union Organizations and Transnational
Woman’s networks, ”Black Africa” and ”Yellow Asia”, Catholic Church and Russofobia, Ethnic Conflicts and the
vast herds of Displaced Persons, Growth of Racism and Ethnic separatism, and a cross-syntez of above mentioned
realities in combination with other factors.
However, In 1994 I had warned about the Islam fundamentalists attack on the parallel 38. 1 By the way,
Washington is near the area of parallel 38, Madrid is located on the parallel 38. Tsunami in Japan full upon parallel
38. New danger is issuing from the parallel 38 between North and South Korea...
Accordingly, prevailing notions of international law for long time do not appear ill suited to finding adequate
solutions for the myriad problems that are transnational in scope. Modern international law seeks to subsume the
individual interests of the states under the general interests of common good. That’s good. But common good of
governments means nothing if the citizens of the state have remained in extreme poverty, and/or if their civil and
political rights are under systematic and serious violations. The most people of the countries, except European
Union, USA, Canada and few others, live under such conditions.
In the framework of international law has been established comic situation: the fact is that the principles of
Human Rights are created by the states as the potential violators of Human Rights. States mainly act, not only out of
respect of law, but also and very often, primarily in their “best” political interests. Recent actions UK and US are
the best examples of such situation, say nothing about 50 years occupation Arab territories by Israel. Annual reports
of Amnesty International and Human Rights Watch clearly indicate on this comic situation. In Asia and Australia
region, where meaningful political organization like Council of Europe, Organization of American States,
organization of African Union are failing, and there is a conspicuous lack of corresponding human rights
conventions and charters. If a state is not fulfilling responsibilities or is actually violating Human Rights, a curious
situation arises as to the standing of the other contracting parties in securing from the detracting the observation of
its obligations. The principle of state immunity, non-intervention in domestic jurisdiction of state, freedom of
contract and the consensual nature of proceedings before international tribunals weakening a protection of Human
Rights.
According to Epping, the individual has no legal capacity in international law because he/she does not
participate in the norm-setting process. He/she enjoys his partial legal capacity through his/her state of nationality.2
Legal capacity to participate in the norm-setting process partly has only some international NGOs but their legal
capacity has been bound by consultative status.
The fact is that only the Europe could partly reach the progress in this field especially after the adoption of
Protocol 11 ECHR. The rest world remained without any efficient mechanism of responsibility of states before the
individuals. ICC for Rwanda and Yugoslavia was an exemption, not a rule.
Absent of World Court of Human Rights like European Court of Human Rights make completely unable
international mechanism of protection of Human Rights in rest of the World and create endanger Peace in whole.
Thus the most population of the world, especially developing countries have remained without efficient protection
of their fundamental rights and freedoms. In such situation population of developing countries enforce to use action
popularize like revolution, reveal, terrorism and other criminal or like actions. Despite greater homogeneity in
regional human rights arrangements, states still show some reluctance in litigating against each other. However, that
the individual can have both the procedural capacity to exercise those rights and legal capacity to possess same in
international law has been affirmed by the prominent scientists like H. Kelsen and I. Brownly. 3 Some authors
interpret such position as an argument for the recognition of individual as a subject of international law. But those
1
B. Savaneli, Kamf ums Recht, Rechtsreform in Georgien. Mit finanzieller Deutschen GTZ, ed., Tbilisi State University, 1994,
p. 23, in Georgian. (Summary in Deutsch).
2 V. Epping, 1990, Volkerrecht subject, in Ipsen Knut edition, Volkerrecht, 4 th edition, Munich, p.75.
3 H. Kelsen, 1952, Principles of International Law, p. 143. Ian Brownlie, 1990, Principles of Public International Law, 4 th ed.,
p.57.
5
authors ignore that above mentioned scientists emphasize that: “…the individual “can have procedural and legal
capacity”, but not “has”.
Actually, if we remain the individuals in the framework of international law (exactly interstates law),
individual may exclusively consider as an object not a subject of international law, because in any case state and
individual are not and not may be equal subjects of international law. But if we consider the individual and state in
the framework of Universal Human Rights Law, they may be considering as equal subjects before the Law such is
exists on the level of European Court of Human Rights. Universal Human Rights Law contents inter-states
agreements, which are unilateral and not dependent on other initially corresponding rights and obligations among
states under international law. At the same time Universal Human Rights Law has a self-obligatory to the state
character relates any individual (not just the citizens) inside of territories of the appropriate states. The Natural Law
heritage means that the International Human Rights instruments do not create Human Rights of individuals and
respectively obligation of states, they merely recognize them. But that does not mean that if human rights are
inherent in nature, they should enjoy inviolable status. Declarative recognition of Natural Human Rights and
respectively obligation of states before the Human Rights Law instruments nothing without adequate mechanisms
of their protection.
I certify the fact that the problem to which really faced humankind today is following: Human Rights are de
facto not Universal. For resolution of that problem I invites to a fundamental rethinking of our modern state and our
modern concepts of Law. In 1993 I indicated on Anthropological Catastrophe underling the following: “Our planet
is sick, and its symptomatic treatment will not give us any results. It’s necessary to look for the deep-remote
reasons of the sickness that are settled in unconscious layers of brain as a result of development of mankind’s
hardly-controllable aggressive inclinations into social stereotype. We are speaking about anthropological
catastrophe, about the circumstance that the human being is not formed still as a “human being”. The progressive
representatives of the humanity had an attempt to embellish the facade of humankind society with ideological and
religious myths to change the vampire’s face at least outwardly. But without substantial results.” 1
1
B. Savaneli, 1993, Legal Theory, Manual, Tbilisi, p. 207, in Georgian. More narrow see also: B. Savaneli (Pkhaladze), 1969,
Correlation between Universal Human Rights and Legal Capacity of Citizens, Candidate’s Dissertation Essays, ed. Moscow State
University, Moscow, p. 4-5, in Russian. (Since 1970 “Savaneli” is my pseudonym, which connected with the village “Savane” - a
birthplace of my ancestors in Sachkhere region of Georgia).
6
I. Legal Monism and Normative Pluralism
As it recognized in western legal theory, there are two types of state law: positive law of nation state (national
law) and positive law of nation states (international Law). Each of them represents legal monism.
In 1975 I have distinguished legal monism or single positive law and normative pluralism or plural normative
order. 1 Later plural normative order I have divided into: internal normative order and international normative order.
A picture of single national positive law in the world that omits Islamic or other religious positive laws,
including all kinds of custom and customary laws, the kinds of “soft law” that exercise scholars of EU law, just not
leaves out too much, because they are forms or sources of positive law of each country. This, of course, again does
not raise the problem of the definitional stop because all of them are not move beyond state law. In any case, one of
them always is a major form or leading source of positive law of nation state. From that perspective, understanding
positive law does not need to take account of all major levels of social relations and levels of ordering those
relations.
State Law or Positive law (ought to be) is not conceived as a form of normative practice (to be) concerned with
ordering relations between persons (human, legal, unincorporated, and otherwise) at a variety of levels of normative
relations in the frameworks of normative order as summary form of normative pluralism.
Normative pluralism i.e. normative order conceived as the coexistence of two autonomous or semi-autonomous
parts of normative order. It is not a distortion to think that “inter-normativity” in the framework of normative order
is an interaction between coexisting makers of normative orders, which are sometimes in competition or conflicted.
Classical legal theory studies tell us almost nothing about the internal or external legitimacy of established practice
of normative order’s makers such as individual representatives of public bodies, citizens, their groups, and other
participants of normative relations. I attempt to construct a sustained argument that idea of established practice of
individual normative acts of public bodies and private persons can be accommodated within non-positivist legal
theory on the basis of their shared experiences and sense of law, which is to some degree universal. From that
perspective normative pluralism is a normal and universal phenomenon of social life. It is important to differentiate
different levels of normative relations and in such way institutionalized normative orders through workable
distinctions between official acts of individual public bodies and unofficial acts of individual private persons
through the distribution of rights and obligations. This is empirically oriented and focused mainly on
institutionalized normative orders in opposition to state centrism. Such a perspective raises questions about the
significance of a sharp distinction between state legal pluralism and non-state normative pluralism.
So, the normative order has two forms: official normative order (official acts of individual public bodies) and
unofficial normative order (unofficial acts of individual private persons). Official normative order is not copy of
laws of state, but unity and real combination of state laws and official acts of individual public bodies. Unofficial
normative order is exclusively not a copy of laws of state, but unity and real combination of unofficial acts of
individuals and/or groups of private persons. In that sense, normative order is not life of state law i.e. positive law in
the society, but “law” in the life of society. Consequently, related to the types of persons, normative order could be
divided on the public normative order and private normative order.
Generally, normative (official or unofficial) order is a part of Social Order in whole, which includes also
established rules of morals, games, customs, models, techniques and etc. in simultaneously with official acts of
individual public bodies and unofficial acts of individual private persons.
The state law i.e. positive law replies on the question: how ought to act the public and private legal persons.
The normative order replies on the question: how really act the public and private legal persons. More deep: if the
state law i.e. positive law replies on the question how the public and private legal persons ought to distribute rights
and obligations, the normative order replies on the question: how the public and private legal persons really
distribute the rights and obligations. 2
The public normative order replies on the question: how the public persons officially distribute the rights and
obligations. The private normative order replies on the question: how the private persons unofficially distribute the
rights and obligations.
B. Savaneli, 1975, To Study the Scientific Heritage of Prof. George Naneishvili, J. “Soviet Law”, N. 1, p. 14-22, in Georgian.
B. Savaneli, 1992, Interaction between Positive Law and Normative Order from the Point of View of Comprehension of Sense
of Law. Doctoral Dissertation Essays, Tbilisi, in Georgian and Russian. Here are the titles of chapters of essays: Introduction. I.
The Problem of Order in Philosophy. II. Normative Order as Self-Regulatory System. III. Normative Order and Sociology of
Law. IV. Normative Order and Theory of Normative Facts. V. Normative Order and Natural Theory of Law. VI. Normative
Order and Sense of Law. VII. Justice as Supreme Sense.
1
2
7
In contemporary world we have three levels of Single State Law: single international law of all states
(common international law), single international law of group of states (for example, the European Union law,
Organization of American States and African Union law) and single laws of nation states (laws of UN member
states).
In contemporary world we correspondently have three levels of Plural Normative Order: plural
international normative order of all states (common international order), plural international normative order of
group of states (for example, the European Union normative order, Organization of American States and African
Union normative order) and plural normative order of each nation states (normative orders of UN member states).
International normative order of all states, international normative order of group of states, and normative order
of nation state separately includes two types of normative order:
1) The established and stabled normative order or practice of realization of free individual wills of private
persons, which particularly and concretely regulates real interpersonal relations through the unofficial distribution
and realization of mutual rights and obligation among the individual participants of private normative relations, and
2) The established and stabled normative order or practice of realization of abstract legal acts of public bodies,
which particularly and concretely regulates real relations through the official distribution mutual rights and
obligations among the individual participants of normative relations.
In my work I am talking about the single international law and plural international normative order of all states,
their mutual transition, spiral and evolutionary development related to new comparative normative order study in
the context of global conflicts resolution through the lens of Universal Human Rights Law.
Simultaneously, I am talking about single international law of group of states and plural normative orders of
group of states, their mutual transition, spiral and evolutionary development related to new comparative normative
order study in the context of country conflicts resolution through the lens of Universal Human Rights Law.
Simultaneously, I am talking about single law of nation state and plural normative orders of nation state, their
mutual transition, spiral and evolutionary development related to new comparative normative order study in the
context of country conflicts resolution through the lens of Universal Human Rights Law.
More exactly, at the worldwide level we have a single positive (public and private) international law and
plural (public and private) transnational normative orders. Plural (public and private) transnational normative order
has leading function. Plural (public and private) transnational normative order need their coexistence, convergence
and harmonization with a single positive (public and private) international law, and after that, creation a new
positive world law, which would be beyond the positive (public and private) international law and would be
oriented on the resolution of above mentioned problems. (What kind of new positive world law could be preferable,
I will indicate below). The final aim of creation of new positive world law humankind is “to be able to join the
supernal order of orders”. (See below, paragraph VI).
Follows to Cant’s idea in “Perpetual Peace” (1795) I reject a centralized regime of world government on the
grounds that it would either be a global despotism or else an unstable and fragile empire torn by civil strife. This is a
quite different point of cosmopolites’ argument that any donation political order needs to be set in a wider,
transnational or global context. At this stage the world without national borders is a new fascism.
In this respect, I can not agree with Boaventura de Sousa Santos who makes an attempt to argue that: “In
jurisprudence modernity is associated with legal positivism, liberal legalism and equation of legal science with legal
dogmatic. Laws distort reality and reflect it. Under this paradigm law has had an important, but secondary place, as
the main instrument of technocratic management of society.” 1 For me position of Santos, who considers law as the
main instrument of technocratic management of society, is slighting, careless and scornful treatment to law and law
professionals. In particular, on the contrary, laws normally never distort reality and never reflect it because “ought
to be” as hypothetical judgment can not distort reality and never reflect it. Distort reality and misrepresented reflect
it basically public bodies and/or private persons, especially politicians at the top. As justly criticized Santos,
William Twinning underlines: “All of this looks like a nutshell of vaguely familiar post-Marxist interpretation of the
‘paradigm liberal legal ideology. …Like many commentators, I find more general parts of Toward a New Common
Sense obscure, jargon-ridden and, in some instances, wrong. I resisted the temptation simply to dismiss Santos’s
philosophy as ‘bosh’, because this kind of ‘post-modern’ writing is both fashionable in academic law and too
important to be ignored. …Santos presents a utopian sociological theory of law as part of a grand politico-social
theory. I am more orthodox jurist, an insider, concerned with the health of my discipline in the next 10 to 20 years.”
2
More over, analyzing Santos’s position, which was exposed in details by W. Twinning, I come to conclusion that
in his work Santos has weaken a regulatory function of law (including human rights law) over state, eroding its
contents and dissolving institutions of law in meta-juridical phenomenon. Substantially, position of Santos is a
1
B. S. Santos, 1995, Toward a New Common Sense: Law, Science and Politics in Paradigmatic Transition, New York, ed.
Routledge, p.2. More over, according Santos: “Laws, like maps, distort reality rather than merely reflect it”. (See p. 464).
2
W. Twinning, 2000, Globalization and Legal Theory, ed. Butterworths, London, p.p. 201, 243.
8
modernized Marxism, while the embodiment of Marxism in practice – USSR (empire of evil) - destroyed, left
behind itself totalitarian Russian empire and metastasis as former soviet republics with some paranoid and/or sadist
head of states.
Past and contemporary problems of civilization are connected namely with devaluation of stable principles of
rule of law and enlarging of unstable rules of politics. Politics without legal frameworks is precondition of disorder
at the global, international, transnational, internal and local levels.
On the other side, can rule of law serve to the global conflicts resolution?
In his famous lecture given in Vienna in 1888, Ernst Zitelmann, professor in Bonn, exhaustively discussed the
possibility of the World Law.
This lecture was published in the next year under the title of "Die Moglichkeit eines Weltrechts". (Vortrag,
Gehalten in der Vollversammlung des juristischen Gesellschaft zu Wien am 20 Marz 1888). It is interesting to note
that in the same year, Julis Ofner gave another lecture entitled "Der Grundgadanke de Weltrechts", later published
under the same title by Alfred Holder (Wien, 1889). J. Ofner did not discuss the question of a World Law as
Zeitelmann did, but discussed the fundamental issue of the World Law.
I remember that R. Jehring lamented the fact that the traditional jurisprudence did not go beyond the
framework of “Landes jurisrudenz” and did not study the problem of law in the light of its universal character. I
may also mention the names of eminent jurists who discussed the universal character of law, such as Kohler,
Saleilles, Lambert, Vinogradoff, Pound, Wigmore from the point of sociology of law or the comparative law;
Kohler, Berolzheimer, del Vacchio from the point of the history of law or the legal doctrine; Carthrein,
Mausbach, Schillind, Petraschezki, Rommen from the point of the natural law. These scholars certainly
contributed to the idea of World Law from their respective legal expertise.
On the other side law as such is not a universal phenomenon, as demonstrates in his “Thesis of NonUniversality of Law” S. P. Sinha. For Sinha, “Law” cannot be equated to social organization but is only one
particular form of it, developed by western civilization and largely ignored by other civilizations like China, India,
Japan or Africa’s animist societies. 1 Therefore negotiation demands dialogue, which cannot reduced to chatting or a
mere exchange of points of views, but has to be understood as a real journey through different cultural logic, which
may permit the emergence of a new intercultural approach.
Mikhacko Tsereteli, a founder of international law in Georgia, in his famous work “Nation and Humankind”
(1910) follows Kant (Perpetual Peace, 1795) rejected a centralized regime of world government on the ground that
it would either be a global despotism or else an unstable and fragile empire torn by civil strife. This is a quite
different point from the very cosmopolitan argument that any domestic political order needs to be set in a wider,
transnational or global context. Single world human rights law does not mean necessity of existence of world
government. Existence of single world human rights law means only an existence of Code of Universally
Recognized Human Rights and appropriately legal mechanism of their protection by the World Supreme Court of
Human Rights like the European Court of Human rights and Freedoms in Strasburg.
The fact is that at the beginning of the twenty first century we are forced to recognize that the authority of law
should based on meta-norms named by us as Universal Human Rights Law, which should be hierarchically superior
to the international and domestic laws.
Ignoring a substance of human beings, politicians permanently polluted Positive Law and Normative Order.
Thus it is necessary to purify them.
1
S. S. Prakash, 1995, Legal Polycentricity, UK, Dartmouth, p. 32.
9
II. “Purification” of Jurisprudence
The dominant understanding of law in western world is more or less the same. The Law in the broad sense of
the whole legal system with its institutions, rules, procedures, remedies, is society’s attempt through state to control
human behavior and prevent anarchy, violence, oppression, and injustice by providing and enforcing orderly,
rational, fair and workable alternative to the indiscriminate use of force by individuals or groups in advancing or
protecting their interests and resolving their controversies. This logic puts legal institutions and the state at the core
of all social discipline. More over, the law of western society traditionally is analyzed as an autonomous logically
consistent legal system in which the various rules are derived from more abstract norms. These norms are arranged
in a sort of pyramid derived from a basic norm, such an analysis presents a legal system as a logically consistent
whole, devoid of internal contradictions whose individual norms gain validity from their logical relationship to the
more abstract legal principles implied ultimately in the basic norm.
That is correct. But “Law in actions” or life of law does not obey to such strict logically consistent legal system
in which the various rules are derived from more abstract norms. The norms of “Law in actions” are not arranged in
a sort of pyramid derived from a basic norm because “Law in the books” or stabled abstract norms usually collided
with the unstable reality: abstract and peacefully coexistence of hypothesis and disposition in the frameworks of
rules of positive law collided with the myriad combinations of official acts of public bodies and unofficial acts of
private persons in the frameworks of individual normative relations. To the end we have singularity of positive law
and plurality of individual normative relations, in short – single positive law and plural normative order.
Therefore, the objects of jurisprudence are single positive law and plural normative order.
“Purification” of jurisprudence concerning positive law from the sociology, psychology, ethics and politics
in the process of study of positive law is connected with the canonical legal positivists: Bentham, Austin, Kelsen,
Holmes, Llewellyn, Hart, Finnis, Dworkin and other famous jurists.
In the space of positive law the object of jurisprudence is not a content of general social, psychical, ethical and
political relations, but the normative forms of these relations, which exclusively connected with the general
determination of mutual rights and obligations between the potential public and/or private persons.
“Purification” of jurisprudence concerning normative order from the sociology, psychology, ethics and
politics in the process of study of normative order is ripe for a long time. As a jurist I research normative order
exclusively in the frameworks of jurisprudence and have attempt to purify it from the meta-juridical phenomena as
H. Kelsen did it. However, purification of normative order’s phenomenon more difficult than purification of
positive law, because the connection between fact (hypothesis) and rule of behavior (disposition) at the positive
law’s level is abstract and related to the space of probability, while at the normative order’s level connection
between fact and rule of behavior is concrete and related to the space of reality.
In the space of normative order the object of jurisprudence is not a content of individual social, psychical,
ethical and political relations but the normative forms of these relations, which exclusively connected with the
individual determination of mutual rights and obligations between individual public and/or private persons.
What is the general and theoretical model of “purification” of positive law and normative order from the metajuridical notions and categories?
The fact is that almost all modern and post-modern scientists in legal theory entirely alienated from mutual
rights and obligations, and flitted to philosophy, anthropology, hermeneutics, sociology, ethnology, economics, and
more over in geography and etc. They attempt to analyze the juridical notions and categories through the above
mentioned spheres of science, while no one are not specialized in appropriate fields, and they made their way to
width but not to depth. In jurisprudence came a smell of dampness without perspective of light to the end of dark
subway. And as a result societies really are remained without rule of law and people without just mutual rights and
obligations. Societies and people remained in “stark naked”. On the planet is raging tornado of amorphous and often
inadequate rules of politics without any borders of rule of just human rights law. Globalization of such politics
globally turned human being into slave without visible fetters.
What is the matter?
Let us begin with the certification of fact that Plato, Aristotle, Kant and Hegel were preoccupied with the
question of: not what is the law, but what the law ought to be. According to Kelsen’s Pure Theory of Law, every
legal norm is in accord with another “higher” legal norm that authorizes its creation. The “higher” legal norm, in
turn, is valid only if it has been created in accord with yet another, even “higher” legal norm that authorizes its
enactment. More concretely, the constitution is the basic authorizing norm of the rest of the legal system, and the
Basic Norm is the presupposition of the validity of constitution. Furthermore, Kelsen argued that every pair of
norms which derive their validity from a single Basic Norm necessarily belongs to the same legal system and, vice
10
versa, so that all legal norms of a given legal systems derive their validity from one Basic Norm. It is widely
acknowledged that Kelsen erred in these assumptions about the unity of legal systems. However, the role of the
Basic Norm in explaining the normativity of law is crucially important. The presupposition of the Basic Norm as
the condition of validity of legal norms marks Kelsen's theory as “pure”, which distinguishes it from other theories
in the legal positivist tradition. Kelsen was convinced that any attempt to ground law's normativity - on it “ought”
aspect - is doomed to failure if it is only based on facts, whether those facts are natural or social.
Once again, to account for an “ought” conclusion, one needs some “ought” in the premises. Therefore, Kelsen
thought, normativity of law, as a genuine “ought”, ultimately, be presupposed. Kelsen's pure theory of law is an
attempt to find a middle way between natural law's dogmatism, and positivism's reduction of law to the social
sciences. Kelsen does not claim that the presupposition of the basic norm is a necessary feature, or category, of
rational cognition. The Basic Norm is an “ought” presumption and, as such, optional. It is not necessary for anyone
to accept the basic norm. The basic norm is necessarily presupposed only by those who accept the “ought”, namely,
the normativity of the law.
However, the validity of a legal system partly, but crucially, depends on its actual practice: a legal order is
regarded as valid, if its norms are by and large effective. Furthermore, the actual content of the basic norm depends
on its effectiveness, which means that the effectiveness of the legal system depends on the normative order i.e.
normative pluralism. Normative order i.e. normative pluralism is free from sharp subordination to the single legal
system.
At the same time, as well known, Lauterpacht was well aware of the history of the abuse of the category of
natural law. In a brilliant 1933 essay on Kelsen, Lauterpacht recognized why Kelsen turned away from natural law,
rightly suspecting that Kelsen, despite his claims about the scientific status of the Pure Theory of Law and his
rejection of natural law, was inspired by his desire for the “affirmation of the dignity and autonomy of man.” For
that dignity to be respected, law must be seen as a “free creation of the human legislator and judge,” not as an
“imperfect attempt at reproduction of the law in itself, of a natural law above the positive law.” However, as
Lauterpacht shows, Kelsen, while committing himself to the fundamental postulate of legal order as a unity, bound
together by his Grundnorm, wished to claim that the Grundnorm is not a precept of natural law. Rather, it is a
hypothesis of the legal scientist, one that translates might into right, but without any ethical consequence. The
subsequent emptiness of the idea means the hypothesis works out for judges as an authorization to use discretion to
decide cases about the interpretation of the law, whereas discretion means they rely on their own subjective
preferences. The assumption of the unity and completeness of legal order turns out to be no constraint on judges at
all, to provide no discipline on the elaboration of what the law requires.
Therefore, to reply on all above mentioned unprecedented for the history of events in complex that is necessary
to reconcile three contradicted theories: Natural Theory of Law, Sociology of Law and Pure Theory of Law. I have
suggested (1993) a new theory named by me as “Normative Anthropology” instead of Legal Anthropology”,
because “Normative Anthropology” includes non-legal space simultaneously with legal space and both are parts of
Normative Order study, which is not a sub-discipline of Anthropology. Legal Anthropology specializes only in “the
cross-cultural study of social ordering”, while Normative Anthropology specializes in “the cross-cultural study of
normative ordering” plus in “nation-cultural study of normative ordering”.
At the same time, it is very disputable to make a sharp distinction between “to be” and “ought to be”, which has
characterized the English analytical tradition from Bentham through Austin, Holland, Pollock, Buckland, Hart and
Raz. Canonical jurists – Bentham, Austin, Kelsen, Dworkin, Hart, Habermas – tended to assume that a theory of
law is only concerned with two types of law: state law and public international law. For the most part, their theories
of law do not purport to give an account of non-state law. More over, classical and contemporary scientists
traditionally identify “Law” and “Order”. Such identification is mistake.
I consider “Law” as Positive law, while “Order” – as Normative Order. Positive Law and Normative Order
compose Normative System of each nation country, groups of countries and the world separately. Accordingly,
Positive Law as the part of Normative System has single form, while a Normative Order has plural forms.
At the same time, it is necessary to make distinction between legal pluralism and normative pluralism.
Legal pluralism is connected with the plurality and differences of positive laws of nation-states, which is the
subject of Comparative Law science.
Contrary to positive law, normative pluralism is connected with the plurality of normative orders within each
country and of the world, which should be the subject of Comparative Normative Orders science.
In details, on the level of each nation country single legislator in abstracto distributes mutual rights and
obligations among natural and legal persons as potential participants of possible normative relations. That is
Positive Law. On the level of each nation country different natural and legal persons as individual participants of
real normative relations distributed individual mutual rights and obligations thyself in concreto. That is Normative
Order or normative pluralism.
11
Normative pluralism or normative order in each country refers to the co-existence of multiple normative orders
in the frameworks of normative order (order of orders) parallel with a single legal system such as positive law. In
other words, in each country we have a single legal space (internal positive law) and a plural normative space
(internal normative orders), as well as in the world we have single legal space (international law) and plural
normative space (transnational normative orders).
The notion of legal pluralism reflects single positive laws or state laws pluralism of UN member states and
single international positive law. Normative pluralism reflects normative orders pluralism inside of each UN
member country and transnational normative orders’ pluralism in the world parallel to the international (interstates)
monism. Only in this sense legal pluralism is a species of normative pluralism.
I have also chosen my topic because legal pluralism or states’ laws contrary to the normative pluralism or
normative order has become a central topic in the study of law generally, including jurisprudence, comparative law,
and public international law, while normative pluralism is sitting in a “dark night”. I thought that today legal
pluralism has not just been one of the most salient and influential academic trends in law and society scholarship,
while normative pluralism has achieved much in raising awareness of normative orders. In this respect I would like
to rephrase Gad Barzilai’s opinion concerning legal pluralism 1 in the aspect of normative pluralism: Normative
pluralism primarily articulates detachment from centralism revolving around state law, criticism of the
exclusiveness of state law, decentralization of court-centered judicial studies, exploration of non-state normative
order, unveiling of private practices. Scholarship of legal pluralism has underscored the ways in which various
identities and traditions have decentralized state law and offered non-state normative orders.
On the other side, some legal theorists talking about institutionalized normative orders: e.g., the WTO, the
regime of internal governance of a law school or a university or large organization; a system, or code or discrete set
of norms such as U.S. Constitution and the rules of football; looser aggregations of norms such as public lecture
rituals and rules of grammar or spelling. More over, concerning a few single norms, which do not clearly belong to
any one system or agglomeration, sometimes is razing such questions: is the smoking ban part of the rules
governing the library, the law school, the university or something more general? Are the rules governing watching
television your home “rules of television watching,” or a mixture of different types, such as norms of turn-taking
and courtesy, an aspect of rules governing bedtime and homework or family discipline”) or part of some broader set
of “home rules” or “house rules?” 2
However, exploration of institutionalized normative orders in such sense is not the subject of science of law, it
go out of law space and enveloped several, different, and sometimes contradicted countless segments of moral,
social, economic, political, personal, and other meta-juridical relations, and appropriately moral philosophy,
sociology, logic, speech acts theory, game theory, economics, decision theory and etc. If we will pass bounds law
space, we shall appear in hopeless whirlpool. Of course there are much fields of junction among several, different,
and sometimes contradicted countless segments of moral, social, economic, political, personal, and other metajuridical relations, and appropriately moral philosophy, sociology, logic, speech acts theory, game theory,
economics, decision theory and etc., but going from extreme to another fraught with serious consequences in
worldwide scale too.
First of all, our space is the space of mutual rights and obligation at the levels of positive law (ought to be) and
normative order (to be) separately, and then their mutual transition, spirally and evolutionary development.
Normative order and normative pluralism are synonyms. Normative order or normative pluralism divides in two
parts: legal pluralism and “non-legal” pluralism. Legal pluralism is a summary of normative acts of public bodies.
“Non-legal” pluralism is a summary of normative acts of private persons. (Private persons include individuals and
their groups). Normative pluralism or normative order is used sometimes to apply to those who advocate plural
orders in contrast to state centralism. Positive law is a system of legal rules, which point out how public bodies or
private persons ought to conduct themselves ideally regardless of the functioning of such rules really. The
normative order is a system of established rules, which show how public bodies or private persons act really
regardless of what rules of positive law point to ideally.
Normative order generally comprises both public and non-public orders. So, there are two fields in the space of
normative order in general: official normative order, which includes normative acts of public bodies, and unofficial
normative order, which includes normative acts of private persons. More clearly, normative order includes two
spaces: individual normative acts of public bodies and individual normative acts of private persons. Individual
normative acts of public bodies in their entity may be in figural term could be nominated as Positive Law (public
1
Gad Barzilai, 2008, Beyond Relativism: Where is Political Power in Legal Pluralism? Theoretical Inquiries in Law. 395, 396.
William Twining and David Miers, 2010, How to do things with rules, 5th ed., 10-34. Contradicted position see, Bizina
Savaneli, 2008, How to do rules with things. International Conference Proceedings, ed., Technical University of Georgia,
Tbilisi, p.p. 218-223, in English.
2
12
law and private law) in action. Individual normative acts of private persons in their entity could be nominated as
Individual Law (normative facts) in action.
An official normative order comprises individual decisions of public (official) bodies. An official normative
order has a vertical character. An unofficial normative order comprises individual acts of private (unofficial)
persons. Unofficial normative order has horizontal character. Both also include cross-sectional fields, which
reflect a result of the coexistence and interaction of an official normative order and unofficial normative order, and
the feasibility of normative acts and normative facts. So, the normative order has legal and non-legal contexts. In
other words, I am distinguishing legal (official) order and non-legal (unofficial) order as two basic forms of
normative order. Therefore, single positive law is the established by the state entity of general legal rules which
regulate civil, political, economic, social and cultural relations among potential natural and legal official or
unofficial persons through the distribution among them mutual rights and obligations in abstracto. Therefore,
normative order is the established by the individual natural and legal official or unofficial persons’ entity of
individual normative rules, which really regulate different civil, political, social and cultural relations through the
distribution among and by them mutual rights and obligations in concreto.
Normative order in official and unofficial contexts we could be consider in whole as an entity of different
sections (orders) of normative order. (For assess and clarification of normative order in official or unofficial
contexts we could be used the official reviews of internal and/or international authoritative bodies and competent
organizations).
A later attempt of subsequent development of theory of normative order we found in the work of W. Twinning
“Globalization and Legal Theory” (2000). W. Twinning underlines: “A healthy global general jurisprudence should
be able to give a total picture (descriptive/explanatory/normative/analytical) of the phenomena of law in the modern
world. Such accounts can be constructed from multiple perspectives. For most purposes, they need to include not
only municipal legal systems and traditional public international law, but also global, regional, transnational, and
local orderings that deserve to be treated as ‘legal’ for given purposes and the and the relations between them. This
will involve addressing the phenomena of legal pluralism, both within and beyond municipal legal systems and
different cultures and traditions. The facts of interdependence cast doubt on any ‘black box’ descriptive or
normative theories which treat legal or other normative orders as self-contained and in particular those which
purport to limit the sphere of their application to notionally self-contained nation states, societies or other
impervious units.” 1 However, the author could not differentiate substantially not only positive law and normative
order, but legal order and non-legal order in the framework of normative order. (See pages 228-235). On the page
172 he writes: Legal orders are made up complexes of social relations, ideas, ideologies, norms, concepts,
institutions, people, techniques and traditions. On the page 147 he identifies legal system and legal order. More
over, he basically on declarative level distinguishes: normative pluralism and legal pluralism as a species of
normative pluralism, and pluralistic state legal systems and non-state legal orders as sub-species of legal pluralism,
and legal order and non-legal orders and other phenomena, and state and non-state law, and legal orders, systems,
traditions, cultures. For him distinctions between them are context-dependent, which depends on one’s vantagepoint, perspectives and goals. (See pages 228, 229, 231- 233). But “one’s vantage-point, perspectives and goals”
stayed very abstract and unclear. Normative pluralism, legal pluralism, pluralistic state legal systems, non-state
legal orders, legal order, non-legal orders, state law and non-state law are the bulk of terms only. Normative
pluralism or normative orders in the framework of normative order in whole is the empirical reality in Kantian
sense, which can become a subject of scientific or other research and investigation through the method of
transcendental idealism.
1. Therefore, at the international level:
Public international law is the sum of created by nation states general public international rules among them.
Public international order is the established practice of individual legal acts of nation states among them.
Private international law is the sum of general private international rules created by private persons among
them.
Private international order is the established practice of individual non-legal acts of private persons among
them.
Public international law and private international law consist of the notion of International Positive Law.
Public international order and private international order consist of the notion of International Normative Order.
2. Therefore, at the internal level:
Public internal law is the sum of created by nation state general public internal rules.
Public internal order is the established practice of individual legal acts of public bodies of nation state.
1
W. Twinning, op. cit. p. 88.
13
Private internal law is the sum of general private internal rules created by private persons among them.
Private internal order is the established practice of individual non-legal acts of private persons.
Public internal law and private internal law consist of the notion of Internal Positive Law.
Public internal order and private internal order consist of the notion of Internal Normative Order.
3. Therefore at the both levels:
International Positive Law and Internal Positive Law consist of notion of Single Positive Law.
International Normative Order and Internal Normative Order consist of notion of Plural Normative
Order.
14
III. Functioning of Normative Order in Unofficial Space
Everybody’s life in general is a normative life. It is the fact that in any vital situation everybody ruled by
moral or amoral, legal or illegal, public or private, traditional or untraditional, customary or uncustomary, collective
or individual, natural or not natural, conscious or unconscious, deliberate or not deliberate, spiritual or unspiritual
and etc. norms of behavior. In summary normative life is constituted by an intersection of different normative
orders. Different normative orders are the phenomenological counterpart of normative pluralism. It may be noted
that normative pluralism stems from sociological pluralism.
The notion and functioning of the normative order in official context i.e. the individual normative acts of public
bodies (public order) at the all levels traditionally have been explored more carefully than the normative order in
unofficial context i.e. the individual normative acts of private persons (private order). More over, many important
forms of non-legal (non-state) order have been marginalized or ignored by canonical legal theorists and, what is
quite surprisingly, by past and present well-known scientists of sociology of law. Private order is the process of
setting up mutual rights and obligations by private parties of economic, social, political, cultural and civil relations.
Normative pluralism is based on the ‘social facts’ of theory of Reinach (1883–1917) and ‘normative facts’
Naneishvili (1894-1937).
Reinach wrote on the dependence between communication acts and legal rights, obligations and property in his
most seminal work Die apriorischen Grundlagen des bürgerlichen Rechtes.1 This book briefly referred to as the
Rechtsbuch, serves as the main source of this discussion of Reinach's concept of normativity.
Some notes for introduction.
1. Communicative act are epistemologically objective, i.e. their existence is not a matter of taste or opinion.
2. Communicative acts are directly or indirectly dependent on human consciousness.
3. Communicative acts are manifestations of interpersonal relationships between human beings.
Reinach and Naneishvili equally interested in the very same types of communicative acts. Their field of interest
encompasses normative phenomena evoked in promises, declarations, obligations and claims. Because of the
differences in background, they approach these problems quite differently.
In Reinach's work, dependence is understood in Husserlian terms, i.e. in terms of Husserl's formal ontology as
presented in his Third Logical Investigation.2 Husserl's notion of foundation or grounding (German Fundierung)
is a transitive one. Hence, every object B dependent of a certain object A is also dependent on all those objects that
A is dependent of. This means that Reinach needs to construct a chain of dependence relations in order to connect
the rather abstract notions of rights, duties and obligations to concrete objects such as living biological bodies.
Social facts have been named by Prof. George Naneishvili as “normative facts” i.e. facts, which have normative
power. Sometimes G. Naneishvili is using the notion “autonomous normative facts”. 3 After 40 years Sally Falk
Moore is talking about semi-autonomous social field instead of subgroups. “A semi-autonomous social field is
defined and its limits identified not by its type of organization but a character of a procedural type residing in the
fact that it gives birth to norms and by constraints or incentives ensures their application. The space within which a
certain number of corporate groups are in relation one to another constitutes a semi-autonomous social field. A large
number of fields of this type may be connected one to another in such a way that they form complex chains, in the
same way as the network of social relations which link individual may be compared to chains which have no ends.
The interdependent connection of a large number of semi-autonomous social fields constitutes one of the
fundamental characteristics of complex societies.” According to G. Naneishvili, individual personal life in whole is
not directly governed by a single system of law. Normative pluralism as such consists in the multiplicity of forms of
normative facts present within any social field.
A. Reinach, 1989, Die apriorischen Grundlagen des bürgerlichen Rechtes, Sämtliche Werke, Philosophia Verlag, Wien, p. 246.
Edmund Husserl, Logische Untersuchungen, Husserliana XVIII, XIX/1, XIX/2, Nijhoff, Dordrecht, 1975, 1984, p. 59. Karl
Schuhmann, Reinach and the Foundations of Realist Phenomenology, Martinus Nijhoff, Dordrecht, 1987, p. 29. James M.
Dubois, Judgment and Sachverhalt. An Introduction to Adolf Reinach's Phenomenological Realism, Kluwer, Dordrecht, 1995.
3
George Naneishvili, 1930, Positive Law and Normative Facts, ed. Tbilisi State University, Tbilisi. G. Naneishvili graduated
from Freiburg University in 1924. He was an assistant of founder of Psychological Theory of Law - Prof. Leon Petrazhitski and
follower of Edmund Husserl in Jurisprudence. Prof. George Nanaeishvili is only one scientist who on high creative and
theoretical level developed Reinach's theory about Social Facts. (See: A. Reinach, 1917, “The A Priori Foundations of Civil
Law,” trans. John Crosby, Aletheia, 1983). In 1937 as a progressive European thinker G. Naneishvili was killed in soviet KGB’s
prison.
1
2
15
G. Naneishvili’s theory is different from Reinach's theory despite of that both are Husserlians. As G.
Naneishvili points out, one should distinguish between facts that are dependent on humans and, on the other hand,
opinions about such facts. Hence, normative entities are dependent on the occurrence of certain mental facts in a
certain population or in the minds of certain persons. Whenever significant mental processes appear, their
consequences can be objectively identified. Reinach writes that a verdict may introduce a new normative entity
dependent on the mental acts of the judge and the people affected by that verdict. Property claims are valid because
people accept the enactment performed by means of a certain mental act in the consciousness of a judge. These
things are dependent on human consciousness but not arbitrarily. Once this dependence has been established, it
stays in power according to its own intrinsic rules. G. Naneishvili’s theory falls short of describing the way in which
normative entities are interconnected and how they are dependent on non-social ones. Causality seems to be his
only choice. It is a very interesting feature of G. Naneishvili's theory of normative reality that he focuses on
normative facts but not on social objects. Consequently, normativity can appear only in the realm of fact but not in
the realm of objects. If G. Naneishvili is right about where to locate this feature called normativity, and if Reinach is
right about the ground–consequence structure of dependence, then one should conclude that normative phenomena
are related to each other as grounds and consequences. Then causality is a phenomenon that does not belong to
normative reality. Instead, normative reality seems to be a bundle of consequences of certain mental states of
affairs.
Normative phenomena are manifestations of interpersonal relationships between human beings. It seems that
not every interpersonal relationship is necessarily normative. Reinach tries to find a foundation of phenomena such
as legal rights and claims. He finds such a foundation in the pre-legal social institution of promise. Originally,
however, the notion of normativity played only a minor role in Naneishvili's normative facts’ theory. He enters the
discussion about normativity on a more general level. Although he sees language as a normative phenomenon, and
even as the basic normative institution, he does not pay any particular attention to normativity as a feature of
concrete language use.
Naneishvili gives normativity a strong position within his analysis of communication. His choice of
terminology reveals this concern since he uses the term normative fact in order to refer to communicative acts. In
Naneishvili's work, the concept of normativity is analysed in terms of individual consciousness, i.e. in terms of
individual subjects. Normative communications can be seen as a phenomenon indispensable for any kind of social
reality. The common point is that in normative communication we bring about real changes in our social reality.
Naneishvili conclude that in normative facts we may change the social reality around us.
According to Naneishvili’s theory, a second agent most prominently distinguishes normative facts from other
facts by the fact that they are in need of recognition, or uptake. This characteristic feature of communication serves
as a corner stone in the Naneishvili’s theory of normativity. Naneishvili is well aware of the fact that normative
phenomena are not only quantitative iterations of individual ones. From Naneishvili's point of view, what he calls a
normative fact is a primarily mental phenomenon that reaches out of the subjective sphere into the public sphere;
i.e. it establishes something intersubjective.
For our present purposes, it would be beside the point to give a comprehensive account of speech normative
facts theory in contrast to the theory of social acts. In general, however, details of these theories are described only
as far as they are relevant to our present topic, i.e. normativity.
In Reinach's ontology, events are seen as simple objects (Gegenstände), although they lack a continuing
existence like the existence of sticks and stones. 1 Naneishvili has no elaborate theory of states of affairs, but still he
builds his whole theory of normative reality on something he calls normative facts. As far as I can see,
Naneishvili’s notion of normative fact completely overlaps Reinach's notion of state of affairs.
My analysis of the very core in Reinach's intentional approach to sociality is this: Unlike individual acts, a
social act is not merely a conscious experience of one person. Instead, it is simultaneously and necessarily
dependent on conscious experiences of at least one other person. Moreover, the experiences of these persons are
functionally diversified with regard to the dimensions expressed by the five criteria above.
A concluding comparison of Naneishvili's notion of normative facts goes as follows. According to Naneishvili,
normative facts such as property claims are created because a sufficient number of individuals have intentional
conscious acts in which each of them we-accepts this as normative fact. Normativity should be understood as a
consequence of the fact that we are reciprocally conscious of the fact that we approach the world together with at
least one other agent in diversified. A normative relationship is established when a normative fact is completed, i.e.
successfully performed by an initiating agent. Rights, duties and other objective but still normative consequences
obtain only if the act is founded on two conscious minds and a physical medium. A person may entertain a purpose
1
James M. Dubois, Judgment and Sachverhalt. An Introduction to Adolf Reinach's Phenomenological Realism, Kluwer,
Dordrecht, 1995, p. 95.
16
to fulfill a promise, but there is no obligation concerning this fulfillment unless the act has been overtly manifested.
The normative realm of reality necessarily entails the existence of human beings. Or even more precisely, it entails
the existence of conscious beings. A thing that belongs to objective reality could not possibly be dependent on the
consciousness of anybody. However, there is no real contradiction involved. Human beings exist as parts of
material reality.
However, human beings are indispensable for normative reality. The typical example of normative fact is a
contract. “The parties of any contract psychologically recognize each other as bearers of valuable acts and both
parties looking for such acts, despite of how does the law assess these acts positively or negatively. As a result of
such psychological recognition the parties logically apply to the mutual rights and obligations. For the parties these
rights and obligations have normative force and they logically consider them as directly acting law for their future
acts.” 1 More over, legal system can declare any contract as unlawful, but legal system can not declare as unlawful
parties logical disposition to the mutual rights and obligations.
G. Naneishvili’s position, which is also mine, may be set forth in summary:
1. The normative facts do not depend on the positive law or its sources.
2. Normative facts are always prior to positive law.
3. We can always imagine normative facts in a space, which is out of positive law.
4. Positive law in whole can not increase or decrease the number of normative facts.
5. The notion of normative facts excludes the idea of the free creation of rules of law. Positive law has an
artificial, man-made character.
6. Because the specific character, a positive law depends on the specific character of external transitional factors
we can say that this (but not other) positive laws appeared. Therefore, each instance of positive law is but one of
several possible (un-instantiated) positive law alternatives.
7. Because the specific character, normative facts does not depend on the specific character of external
transitionally factors, we cannot say that this (but not other) normative facts are appeared. Each normative fact is
not a possible normative fact, because a normative fact is the fact.
8. Normative facts can only be used by positive law for its aims or can institute constraints over the result,
which, according to its value, should occur, but positive law can never annul normative facts.
9. In contradiction to the positive law, which always has an authoritative legal source, normative facts have no
authoritative source. We always can not say that positive law “happened”, but we can say this about normative
facts, because any fact is a fact, is a history. Positive law is not fact, is not history. Positive law is “ought to be”.
10. Normative facts should be investigated irrespective of positive law. 2
Normative facts have normative power, which produces mutual rights and obligation between the individual
participants of private economic, social, political, cultural and civil relations. Normative facts are the coexistence of
different norms in the form of mutual individual rights and obligations within different every-day social relations of
private natural and legal persons’ lives. 3 More precisely, for the clear illustration of the formation of normative
facts in the private space I would like to cite a simple example. Let us assume that any private person publicly
expressed free will of readiness to undertake an obligation to act in the specific private space. The readiness to
undertake an obligation to act in the specific private space has the normative effect, but that is not a normative fact
until the other person or persons will not express its or their counter free will of readiness to undertake an obligation
to act in that specific private space. In favorable case, the expression (fact) of readiness by one or both parts to act
in specific space and distribution of mutual obligations and corresponding rights (norm) by both parts is the end
of formation of normative fact. If we consider such normative fact and analogous and other normative facts in the
private space in totality we shall receive the unity which could be named as non-legal normative order
simultaneously with legal normative order.
Normative facts (seinsregel) i.e. the individual normative acts of private persons reflect the normative pluralism
in the day to day lives of individuals and their groups, and, partially by the ’production’ of individual social rules by
individual private persons. For example: What is means that two persons concluded a contract? That means the fact
of conclusion (fact) and contract i.e. mutual rights and obligation (norm), which = normative fact. Other example:
1
G. Naneishvili, op. cit, p. 23.
G. Naneishvili, op. cit, p. 55. Radical position concerning legal force of contracts was expressed by J. Frank. For J. Frank, not
only legislator, but also private persons create positive law. See: J. Frank, 1949, Courts on Trial, Princeton, p. 308.
3
B. Savaneli (Pkhaladze), 1969, Correlation between Fundamental Human Rights and Legal Capacity of the Citizens,
Candidate’s Dissertation Essays, ed. Moscow State University, Moscow, p. 4-5, in Russian. See also: B. Savaneli (Pkhaladze),
1969, “Juridical Forms of the Citizens Position in Soviet Society”, Monograph, ed. Academy of Sciences of Georgia, Tbilisi, in
Russian. Reviews on monograph see: Prof. Dr. S. S. Alekseev, 1970, in J. “Jurisprudence”, N 5, p. 106-107, in Russian; M.
Fridieff, 1971, in J. “Revue International de Droit Compare”, Janvier-Mars, Paris, p. 272-273, in French; Anna Michalska
1971, in J. “Ruch Prawniczy, Economizhny i Socjologiczny”, Kwartal Trzeci, Warszawa-Poznan, p. 305-307, in Polish.
2
17
one person promised to do something for other person. Promising is a fact but not a norm, obligation to do
something is a norm. Promising (fact) + Obligation (norm) = Normative Fact. In both cases normative fact exists
disregarding: positive law contains or not a claim to act. Positive law can claim to act or can not claim to act
depending on the different character of normative relations. Positive law can use or not use normative facts, and that
is all.
The normative lives of private individuals and groups always form the independent normative life of society
based on the distribution of mutual individual rights and obligations by private persons. Private normative order
(normative facts in private space) also refer to the norms of a given group, community, or society or they may refer
more broadly to any norm that guides or governs social relations. But private normative order out of mutual rights
and obligations among participants of social relations is not the subject of science of law. The theory of normative
facts i.e. the individual normative acts of private persons is based on the principles of contract, treaty, and so on.
These include, in particular, private civil contracts, mutual contractual aid, trade and collective commercial
agreements as well as the vast range of internal institutional rules, rules of private different units, etc., but not
property rights. Property rights have a static, not a dynamic character. Normative facts i.e. the individual normative
acts of private persons have a dynamic and not a static character; they reflect factual relations between two or more
private natural and/or legal persons. Mutual rights and obligations among participants of social relations always
precede positive law. David Hume correctly underlines: “The freedom and extent of human commerce depend
entirely on the fidelity with regard to promises.” 1
My theory of private normative order may be reminds E. Ehrlich’s theory of ‘living law’ and ‘facts of the law’.
As we shall see below, it is not correct. For E. Ehrlich: living law is a framework for the routine structuring of
social relationships. Its source is in the many different kinds of exclusively social associations in which people coexist. In addition, legal norms concern certain kinds of relationships, transactions and circumstances which he
described as 'facts of the law' i.e. specially important topics or considerations for regulation exclusively of social
associations. The function of jurisprudence is to clear up and ascertain what is happening in social associations. 2
At the level of sociology, I am mainly talking about the normative coexistence of individual private persons.
The normative coexistence of private persons is the essence of human being. More precisely, normative coexistence
is a supreme product of the social life, which comes to the self-consciousness and conscious increase interpersonal
relations. The normative cognition of potential participants of social relations is vertical way in the process of
elaboration mutually acceptable rights and obligation, whereas all others are distributed on the horizontal plane. In
other words, potential participants of social relations attempt to discover common and mutually adopted model of
action which would be higher than their individual “wills”, third imperative power situated above their individual
“wills”. This vertical of meaning of the social life is nothing else but self-cognition as a result of which the essence
of the persons is developed and created, showing normative archetype of humankind in whole disregard of different
cultural symbols. Basing on the normative coexistence, the private persons with a greater depth are capable to
comprehend their potential position in the social area with the others. In the process of normative coexistence is, as
minimum, organized two regular methods, which are realized in “logos” and “theos”. The third method is situated at
the junction of “logos” and “theos”, comprehension to which the participants of social relations striving. The result
of such striving i.e. normative coexistence is a distribution of mutual rights and obligations by the participants of
social relations. More over, the normative coexistence appears in the form an option. The option, which brought the
humankind through the spiral and evolutionary development, is crucial, because it is a matter of life and choosing
life is possible through the normative coexistence. 3
The voluntary actions of individuals and their groups (normative facts) create normative relations and this is not
an idealized illusion. That is the space of “is”. Only after that the legislator makes choice what normative relations
are needed in regulation. Then the legislator creates a model of regulation passing into the space of “ought to be”.
Passing into the space of “ought to be” the legislator obeys to the rules of linguistic. In such way is filling a
theoretical gap between normative relations and the positive law, and etc. spirally, evolutionary and endlessly.
However positive law through legal language can not directly construct a reality. The positive law through legal
language attempt to construct a reality only through the voluntary actions of individuals and their groups (normative
facts). Can the positive law reach its aim? But again that is the question of fact. More over, even the judges are
semiotic objects, but positive law can not exactly predetermine judges’ decisions even in analogized cases because
1
David Hume, 1739, A Treatise of Human Nature, 2nd ed., Oxford, Oxford University Press, 1978, p. 546.
Ehrlich, E. (1913), 2001, Fundamental Principles of the Sociology of Law. Transaction Publishers, New Brunswick. Further
reading: Manfred Rehbinder, 1986, Die Begrundung der Rechtssoziologie durch Eugen Ehrlich, 2nd edn.. Berlin: Duncker &
Humblot. Marc Hertogh, (2009), Living Law: Reconsidering Eugen Ehrlich, ed. Oxford: Hart. Roger Cotterrell, (1992), The
Sociology of Law: An Introduction. 2nd ed. Oxford: Oxford University Press.
3
B. Savaneli, Co-existence of Single Positive Law and Plural Normative Order, The Journal Jurisprudence, April 2010,
volume six, trinity term, published in USA, Charleston, SC, p. 247-248, in English.
2
18
they take into consideration factual consequences and their unrepeated combinations. Can the positive law reach its
aim? But again that is the question of fact.
On the level of philosophy, I underline that the idea that normative facts i.e. the individual acts of private
persons do not depend on the positive law or its sources based on the Giant Goethe’s formula: “Im Aufang war die
Tat”. Instead of “How to Do Things with Words”, I support the formula: “How to Do Words with Things”. Human
beings do things without words. The things do words, the words do new things, new things do the new words, the
new words do new things and etc. For example, if “A” telephones a plumber to come to “A’s” house to fix a broken
pipe, the pipe itself is the result of act but not word. “Words are notoriously slippery symbols and there may be a
wide divergence between the meaning a person intended to convey with his expression and reasonably or
unreasonably understood by the person to whom he was communicated.” 1
Of course, on the one side, speech act is one of the forms of human being’s activity. Through speech act human
being’s activity can be transmitted from one position to another, or its normative state can be changed, or the
volume of its individual rights and obligation can be broaden or get narrow, but, on the other side, in any case,
human being more silently acts than speaks.
Related to the strictly normative space, speech act is one of the forms of normative fact, but in any case, private
person more silently acts than speaks. In whole, speech acts are one of the forms of normative order, but in any
case, public bodies and private persons more silently acts than speaks.
Permanent and cyclical interaction between things and words, inter-substitution of things and words, and
permanent and cyclical inter-transition of things and words at global, regional, national and local levels has a trend
to comprehend a sense of law of Humankind, which must be based on the Universally Recognized Human Rights.
The aim and goal of such interaction, inter-substitution and inter-transition is to achieve sustainable development of
Humankind. Formula “New things produce new words” means that new facts produce new mutual rights and
obligations. The entity of new facts and new mutual rights and obligations create new normative space, which
causes necessity to establish new positive law and etc. Generally talking: to claim “ought to be” means that such
“ought to be” practically possible. In other words: it is nonsense to claim human action which is not practically
possible. “Ought to be” should be based on the individual human capacity.
Developing G. Naneishvili’s theory, I underline that mutual rights and obligations of private persons are neither
psychological entities nor are they mental. The bearers of rights and obligations are related to each other
psychologically or mentally but their mutual rights and obligations are related each other - logically. In other words,
normative facts i.e. the individual acts of private persons using P. Winch’s term could be described as “rulesgoverned behaviors”. 2 Such rules have been naturally plated into human behaviors and issued from human’s
knowledge, skills, habits, experience, interdictions, permeations, traditions, ethics, customs, dispositions and etc.
Indivisible connection between individual human rights rules and individual behaviors and their transitions is the
vital connection (“Lebenszusammenhang”, using Dillteis term) and transition. The participants of such vital
connections and transitions disseminate mutual rights and obligations among themselves by which they govern their
behaviors. Therefore mutual rights and obligations are the rules through which and together with participants’
behaviors have been created “rules-governed behaviors”, which are known as “normative facts” i.e. the individual
normative acts of private persons, and which theoretically, normative facts divided into facts (behaviors) and norms
(mutual rights and obligations).
The theory of normative facts moves away from questions about the effect of law toward conceptualizing
official and unofficial forms of normative order. Only 50 years after George Naneishvili, Sally Falk Moore
introduced the term “semi-autonomous social fields”, which, as correctly saw W. Twinning, “nicely catches the
imprecision and porosity of the social contexts of most normative orders. Many normative orders do not have
discrete boundaries, they tend to be dynamic rather than static, and relations between them are extremely complex.
Sometimes they compete or conflict; sometimes they sustain or reinforce each other through interaction, imposition,
imitation and transplantation.” 3 At the same time, Twining distinguishes two types of legal order: municipal state
law and public international law (see p. 51). It means that he identifies positive law and legal order, which
substantially contradicted to his above mentioned positions. I have to repeat again that municipal state law and
1
J. Calamari and J. Perillo, 1977, The Law of Contracts, Second Edition, West Publishing Co., 1977, p.p. 19, 23. More broadly
see Bizina Savaneli, 2008, Normative Dimension of Speech Acts. International Conference Proceedings, ed., Technical
University of Georgia, Tbilisi, p.p. 218-223, in English.
2
P. Winch, 1958, The Idea of Social Science, Routledge & Kegan Paul, Printed in Great Britain by the Burleigh Press, London.
3
W. Twining, op. cit. p. 85. As correctly noted W. Twining: “We all experience normative pluralism – that is to say the
coexistence of different bodies of norms within the same social space – every day of our lives.” (See p. 83). Such norms every
day of humans’ lives had named by G. Naneishvili (1930) as normative facts. Op. cit. p. 53.
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public international law are two types of positive law. Legal (official) order and non-legal (unofficial) order are two
types of normative order.
My position concerning normative facts i.e. the individual normative acts of private persons is based on the
logical investigations of Edmund Husserl. As is generally known, Husserl developed a thesis advanced by his
teacher Brentano to the effect that all mental acts are intentional, that is, that they are directed towards an object.
The existence of man is the existence of other existence of permanent choice. Husserl maintained that all intentional
experiences are in this sense ‘objectifying acts’. Husserl's account of meaning builds upon this theory. All uses of
language are, he says, referential. Accordingly, Husserl viewed acts such as questions or commands as masked
assertions. The command “sit down on the chair” he interpreted as a statement to the effect that “your sitting down
on the chair is my current request.” The man is what he is not yet, but what he ought to be.
The range of objectifying acts for Husserl includes:
1) Acts directed towards individual things, events, processes, etc., and towards the parts and moments of
these;
2) Acts directed towards species or essences, and towards ideal objects such as numbers;
3) Acts, above all acts of judgment, directed towards “Sachverhalte” or states of affairs.
At the same time the radicalism of Husserl’s phenomenological reduction pushes him to bring the
transcendental ego, which forefronts but posing the problem of alter ego. Husserl solves the problem by making the
transcendental ego, which constitutes other egos as equal partner in an inter-subjective community, which in turn
forms the objective i.e. the inter-subjective world. Maurice Merieau-Ponty after studying unpublished manuscripts
of Husserl brings out the notion of “Lebenswelt”. Succeeds Husserl, Martin Heideger investigates the study of
“Dasein” (There of Being), which includes the being-with. The inter-subjective nature of subjectivity is emphasized
in the philosophies of Gabriel Marsel and Martin Buber in notion of participation and dialogue. We can find a
similar turn in the East philosophies. For example, in Confucianism self-cultivation entails relating rightly with
others in the family, community and society. A deeper study of Taoism may reveal that self-cultivation also
involves relating with others not only with the Tao in humility. In Hinduism, there is a movement of the self’s
finding at-ornament from the Brahman to the Atman. In Buddhism, the extinction of desires entails the attitude of
compassionate love. All of that is a philosophical foundation of the theory of normative facts which content consist
of mutual rights and obligation of participants of social relations.
On the other side, plural forms of normative facts i.e. the individual normative acts of private persons are based
on the idea that there are many real spaces, which are largely independent of the individual's knowledge of a given
world, more over includes knowledge in the positive law. First of all normative facts i.e. the individual normative
acts of private persons are mainly associated with "non-state law". As is generally known E. Ehrlich, the pioneer of
sociology of law¸ argued that a realistic depiction of the law in action had to account of "the living law" of subgroups as well as "the official law" of the state. He saw that these could diverge significantly and that sometimes
one, sometimes the other would prevail. This was an important step not only in the direction of "realism", but also
in deliverance from the idea that the state has a monopoly of law-creation.
In broad sense I am talking about the private life of civil society. The private natural and legal persons for
the satisfaction of their individual economic, social, cultural, political and civil interests regulate economic, social,
cultural, political and civil relations among them through the distribution and establishing mutual rights and
obligations, which are the individual rules of their co-behavior. This is a field of normative coexistence of private
persons. In this process are participated minimum two persons who attempt to reach common and mutually adopted
normative model or rule of their co-actions, which would be higher than their individual “free wills”. So, normative
coexistence of private persons is the supreme product of human life as it is which comes to the self-consciousness
and conscious increase interpersonal relations. Genesis of normative coexistence is simultaneously formation of a
person as normative essence and reflection of this process in public law. This process is important because play
creative, resourceful and original role in normative knowledge for the person, by which a person with the greater
dept is capable to comprehend his position in the world to think about the sense of his/her life. Genesis of normative
coexistence accomplishes both in a history and in each separate person, but always existential.
Farther developing of normative facts theory is connected with John McMillan and Christopher Woodruff. They
correctly underline: “Businesspeople need contractual assurance. Most transactions are less straightforward than a
cash sale of an easily identifiable item. Buyers need assurance of the quality of what they are purchasing. Sellers
need assurance that bills will be paid. The positive law is not always available to provide contractual assurance.
Even when the law is dysfunctional, private order might arise in its place. Private order is sometimes arranged by
the parties directly involved in the transaction. If a buyer is locked in with a particular seller, either because the
seller is a monopolist or because the buyer would face high costs of locating an alternative seller, the seller can
make the contract self-enforcing by the sanction of cutting off further dealings. Self-enforcement sometimes takes
more imaginative forms. Many developing and transition economies have dysfunctional legal systems, either
20
because the laws do not exist or because the machinery for enforcing them is inadequate. Communities of traders
may derive individual norms that encourage cooperation between any two of their members through the distribution
by them mutual rights and obligations. Among the rural residents, interactions are frequent and residents expect
them to continue indefinitely into the future. The conditions for cooperation in a repeated game are thus met.
Similarly, merchants dealing with one another with repetitively enhanced the effect of reputation by communicating
their experiences with one another. Private order promotes economic efficiency by giving businesspeople
confidence to transact. Private-order mechanisms may be even preferred to reliance on the courts, either because
certain kinds of agreement are not susceptible to court enforcement or because the transaction costs of using private
order are smaller than those of using the courts. For example, in Asia, especially among the ethnic Chinese,
contracting typically rests on personal relationships or guanxi. In Japan, firms’ opportunism is limited by
“moralized trading relationships of mutual rights and obligations. The stability of the relation is the key. Both sides
recognize an obligation to try to maintain it.” 1
Mutual rights and obligations have arisen spontaneously within groups such as neighboring cattle farmers,
whalers and etc. Really, mutual rights and obligations can emerge to govern behavior effectively in more or less
small communities, where people interact with each other frequently and information flows freely, so people
cooperate because it is in their long-term interest to do so. So, I fully agree that the private order usually achieving
spontaneously in self-organized manner.
On the life of civil society have been influenced not only the normative coexistence of private persons (private
normative order) but other elements of culture: language, local customs, statehood traditions, religious rites, public
normative order of state bodies, folklore, etiquette, art, social and family ceremonies, music, cooking, dress,
agricultural and industrial practice and so on. This idea was developed in a number of directions. For example, K.
Llewellyn saw clearly that within a major group such as a nation-state, society or tribe, the basic functions of law,
such as conflict-prevention and dispute-resolution, could be performed at different levels by a variety of
mechanisms in addition to rules by education or the threat or use of brute force, and that different bodies of rules
could coexist without necessarily being ranked in a clear hierarchical order. 2
Concerning notions of Positive Law and Normative Order it is necessary to underline the following: for me K.
Llewellin’s “law-jobs theory” has no deal with the positive law, particularly - public law, because the function of
the legislator (the positive law-maker) is a general distribution of mutual rights and obligation among the
participants of “normal” political, social, economic, cultural and civil relations.
K. Llewellin’s “law-jobs theory” has deal with the normative order, particularly - legal order, because function
of public bodies (legal order-makers) is the individual distribution of mutual rights and obligation among the
participants of “abnormal” (dispute or conflict) political, social, economic, cultural and civil relations.
Normative order is a summary of personal rules, which concretely regulates factual economic, social, cultural,
civil and political relations in the country through distribution of mutual rights and obligations among or by the
individual participants of these relations. Normative order or normative pluralism is the outcome of public
normative acts and private normative acts. In other words, non-legal or private normative order is a space of
normative life of private persons within the nation-states boundaries and/or out of them, which connected with their
mutual rights and obligations in economic, social, political, civil and cultural relations.
At the same time it is necessary to take into consideration a following abnormal situation: due to the
tremendous pressure of “big” cultures in the age of globalization, many small cultures step by step have lost their
identities, which degrading culture of humankind in whole. Although the preservation of cultural identity of small
nation-states is a very difficult, but national (not corrupted, mercenary and venally) governments must permanently
explore some way out and they can show some new techniques to make poise between national and universal
cultures. But it is not means that dialogue between nation-states cultures excludes. Not at all! Dialogue between
national cultures serves the mutual enrichment and enrichment the culture of Humankind.
To talk about the global society today means a dictatorship of representatives of God’s “minions” 3. . . To talk
about the global society i.e. world without borders is too early because it means degradation of nation-states, while
each nation-state has natural right to self-determination. Exception is the situation when nation decide that it
1
Robert C. Ellickson, 1991, Order without Law, Cambridge, Harvard University Press, p.p. 48, 55. See also: Clifton A. Barton,
1983, Trust and Credit: Some Observations Regarding Business Strategies of Overseas Chinese Traders in South Vietnam, in L.
Y. C. Lim and L. A. P. Gosling, eds., The Chinese in Southeast Asia, Vol. 1. Singapore: Maruzen.
2
K. Llewelyn, 1940, The Normative, The Normative, The Legal and The Law-jobs: The problem of Juristic Method, 49 Yale
Law Journal, p. 1355-1360. Shortened version was reprinted in 1962, K. Llewelyn, Jurisprudence: Realism in theory and
Practice, p. 233-262.
3 B. Savaneli, Globalization of Human Rights, Normative Pluralism and Comparative Law. Epistemology and Methodology of
Comparative Law in the Light of European Integration, Brussels, 24th-26th October 2002, Conference Papers, see: WG2 Human
Rights, Session 2: Saturday 26th October, 12.30-13.00.
21
exhausted self political, social, civil, economic, cultural and other potential. Only after that it can to merge with
other state-nation. That should be exclusively it’s free will.
Assertion that the EU model has spread all over the world is illusion.
Contemporary western tradition makes differences between the West and East. That is mistake.
Differences between the West and East are not substantial, because the origination of West Culture is historically
and basically connected with the East Culture. (India, China, South-East Asia’s countries, Japan are clear
examples). The people from the North space (I mean the people of Council of Europe’s Member States, USA and
Canada) are oriented on the modernity. For these people modernity is associated with currency and relevance, and
focuses on future in the Darwin’s evolutionary spirit.
Substantial is the gap between North and South. I would like to argue that the gap between North and South
more deep than we can image. Contrary to the people of North space, the people from South space are oriented on
the past (I mean Muslim, especially African cultures). The golden era of Islam stretches from 7th century. Since that
time Muslim community has been perceived to be on decline. Various reformists have called for a return to the life
style of the ancestors. African thought is not different from this perception of life. What is valuable in African
culture is not what is yet to come but what has already passed. The concept of “Development” and “Progress” are
absent in Afro-Islamic culture. If “Development” and “Progress” mean motion to a changed mode of system in
general, Muslims and Africans have no willingness for such motion. The Koran depicts life as a worthless
enterprise compared to spiritual life, because it ignores the importance of spirituality. Science and technology do
emphasize causality something that Muslim theology denies and replaces it with atomism and “occasionalism”.
Although Africans believe in causality but this causality is not material but spiritual. When African goes out to hunt,
the motive is mainly not to get food but reveal his manly attributes.
Some philosophers from the East underline contradiction between two - East and West - philosophies, issuing
from two questions: one is – what is, and the other – how that is. Such contradiction is superficial. Both are
engaged in comprehension of these two questions but with different intensity. From my point of view, more
important meter, which should consolidate not only East and West, but mainly North and South, is following: what
and how ought to be really. That is a third dimension, which take off any distinction between and occupy the place
above them, despite what is and how that is. That is the normative i.e. pure dimensional space.
22
IV. “Law in the books” and “Law in the actions”
“The idea of law, in spite of everything, seems
still to be stronger than any ideology of power.”
Hans Kelsen
Normative order’s notion does not pretend to develop some kind of a rigorous science of perfect
understanding of human and social processes, nor does it claim to provide the final truth of normative processes at
all levels. What I want to argue by way of the above brief account of gap in the laws and their implementation is
that the capability of law to control behavior is highly circumscribed. Law as an instrument of social reform has a
limited utility if al all.
A traditional thesis distinguishes “Law in the books” and “Law in the actions”.
Law in the books is nothing else than the single positive law. Law in the books or single positive law is an
established general rules or acts, by which have been defined the competence of legislative, executive and judicial
bodies. Such general rules or acts usually set forth in constitutions or other basic general normative acts.
Law in the actions is nothing else than the one part of public normative order (other part is a private
normative order). Law in the actions or public normative order is an established concrete rules or acts, by which
competent legislative, executive and judicial bodies are regulating individual public and/or private relations among
public and/or private persons.
My position concerning single positive law concerning state law is partially based on the H. Kelen’s pure
theory of law; partially, because - individual normative acts of public bodies and individual normative acts of
private persons are “seinregels”, but not “solenregels”, because “solenregels” connected with rules of positive law,
but not rules of normative order. Hierarchy of state’s bodies reflects general legal rules of organization of state’s
power. Accordingly, hierarchy of state’s bodies is a reflection of hierarchy of sources of state’s law.
Law in the books i.e. single positive law (public law and private law) is traditionally investigated and
explored more broadly and deeper than law in the actions - normative acts of public bodies.
On the level of positive law “sein” and “solen” are not contradicted each other, they coexisted logically in
the framework of two parts of structure of each legal rule: hypothesis and disposition. On the level of normative
order “sein” and “solen” are not contradicted each other, they coexist empirically in the framework of two parts of
structure of each normative fact: fact and rule. (For example, treaty as normative fact consists of two parts: a fact of
conclusion of treaty and mutual rights and obligations between participants of treaty). In other words, normative
order embraces factually settled order (practice) of application of general legal rules by individual public bodies
(precedent in broad sense) and factually settled order (practice) of application of mutual rights and obligations by
private persons. On the level of normative order “sein” and “solen” coexistence not logically but factually and they
are indivisible.
More over, all societies have different normative space, in which positive law does not exist in isolation, and
more over is not necessarily the most powerful element thereof. The state has no monopoly of lawful power within
a given country, except criminal law and administrative law, because the normative order does not have discrete
boundaries. The normative order is dynamic rather than static, and social relations in each normative order are
extremely complex.
“Law in the action” expresses one part of normative order, which is only connected with the official
normative acts of public bodies. By normative acts of public bodies mutual rights and obligations have distributed
officially (public order). Other, comparably independent part of normative order is unofficial normative acts of
private persons (private order). By normative acts of private bodies mutual rights and obligations are distributed
unofficially. Common for both acts is that both are settled mutual rights and obligations of participants of relations.
Normative order (public normative acts and private normative acts) includes speech acts of public bodies and
private persons too. What I talked about normative acts of private persons (normative facts) concerning speech acts
in section III I repeat about normative acts of public bodies (legal normative acts). But as far as I would like to
consider both together concerning speech acts, I have decided to analyze the problem more broadly.
Speech act theory will forever be associated with the great John L. Austin. One of Austin's core insights is
reflected in the title of his William James lectures, delivered at Harvard in 1955, “How to Do Things with Words”.
When we use language, we usually don't say: what the world is like; when we use language: we do things. We
command, request, apologize, contract, convey, and admonish. Speech act theory focuses on the ways in which oral
language used for the performance of actions.
23
Speech act theory begins with the idea that language can be used to perform actions.Here are the following
forms of speech acts:
Constants: affirming, alleging, announcing, answering, attributing, claiming, classifying, concurring,
confirming, conjecturing, denying, disagreeing, disclosing, disputing, identifying, informing, insisting, predicting,
ranking, reporting, stating, stipulating.
Directives: advising, admonishing, asking, begging, dismissing, excusing, forbidding, instructing, ordering,
permitting, requesting, requiring, suggesting, urging, warning.
Commissions: agreeing, guaranteeing, inviting, offering, promising, swearing, and volunteering.
Acknowledgments: apologizing, condoling, congratulating, greeting, thanking, accepting.
All above mentioned speech acts are individual normative acts, which may have legal or non-legal contexts.
Legal theorists are interested in speech acts theory for a variety of reasons, but one of the most important is
that speech act theory helps to explain the way that the law uses language. Constitution, Statutes and other
normative acts aren't like "the cat is on the mat." That is, a statute does not tell us how the world is in the same way
that a declaratory sentence does. Legal language is full of speech acts.
Reinach maintains that such truths are not merely necessary and universal, but also informative, thus that they
are examples of truths that are both a priori and synthetic. Adolph Reinach mentions many social acts in his treatise
on “The A Priori Foundations of the Civil Law” (1913): commanding, requesting, warning, questioning and
answering, informing, enacting, revoking, transferring, granting, and waiving of claims, but he devotes the most
attention to the act of promising. Drawing on the theory of essences or intrinsically intelligible structures referred to
above, Reinach offers the following examples of a priori truths about what he sees as the intrinsically intelligible
structure instantiated through the performance of a promising act:
- through promising one incurs an obligation;
- by receiving a promise one has a claim to what was promised;
- such claims are extinguished when the promise is fulfilled;
- such claims may also be extinguished if the claimholder waives the claim;
- promising is subject to a range of variations or modifications, including conditional promising, promising on
behalf of or as a representative of someone else, promising to a group, promising by a group, and so forth.
I am sure that one of the most fundamental distinctions in legal theory is the distinction between "positive law
theory" and "normative order theory." The core idea of the distinction between positive law theory and normative
order theory is simple: positive law theory seeks to explain what the law is, in other words, what the law speaks,
whereas normative order theory tell us what the positive law ought to be speak, in other words, what the law
should be speak based on the practice of “things” but not on the “words”.
A bridge between what the law speak and what the law should be speak lies through the normative order.
Investigation of normative order gives us an opportunity to assess how positive law (sollen) implemented really in
legal order (sein). In the process of investigation of normative order arises an idea of justice, in other words, an idea
what the law should be speaking. Reconcile H. Kelsens’ and G. Naneishvili’s contradictory theories, I have
suggested a new “Spirally and cyclically developing theory of interaction and mutual-transition of Positive Law and
Normative Order”. Based on human rights permanent and cyclical interaction between positive law and normative
order and permanent and cyclical inter-transition of positive law and normative order at global and local levels has a
trend to comprehend permanently an Idea of Justice. The aim and goal of such interaction and inter-transition is to
achieve sustainable development of Humankind based on the Universal Human Rights.
Instead of “How to Do Things with Words”, I suggest the formula: “How to Do Words with Things” in the
sense of Giant Goethe: Im Aufang war die Tat”, because “New things produce new words”, which means that in
normative space new facts produce new mutual rights and obligations. Human beings do things without words, the
things do words, the words do new things, new things do the new words, the new words do new things and etc. Like
this the entity of new facts and new mutual rights and obligations create new normative space, which causes
necessity to establish new positive law and etc. It is not surprising that it has been said that “what a judge does is
more important than what he says he does”. 1
Of course, on the one side, speech act is one of the forms of human being’s activity. Through speech act human
being’s activity can be transmitted from one position to another, or its normative state can be changed, or the
volume of its individual rights and obligation can be broaden or get narrow, but, on the other side, in any case,
human being more silently acts than speaks. Related to the strictly normative space, speech act is one of the forms
of legal act, but in any case, public body more silently acts than speaks. In whole, speech acts are one of the forms
of normative order, but in any case, public bodies and private persons more silently acts than speaks.
1
R. Dickenson, 1976, Some Jurisprudential Implications of Electronic Data Processing, Law and Contemporary Problems, op.
cit., p. 53.
24
Permanent and cyclical interaction between things and words and permanent and cyclical inter-transition of
things and words at global, regional, national and local levels has a trend to comprehend a sense of existence of
Humankind based on the Universal Human Rights. The aim and goal of such interaction and inter-transition is to
achieve sustainable development of Humankind.
The positive law and normative order in civilized countries are not strictly contradicted each other, they exist
in parallel regimes, because they are entirely different levels of life of the nation state and civil society in whole.
Functional asymmetry between them is normal process and that process indicates on the perspective of evolutionary
development of civil society in whole. Particularly, positive law is unempirical space of life of civil society, while
normative order is empirical space of life of the civil society. Exposition of contradiction between positive law and
normative order is possible only theoretically in the process of exploration of their dynamics, using comparative
and other methods. Moreover, individual public normative acts and individual private normative acts coexist and
interact in complex ways. Sometimes they also compete or conflict, sometimes they sustain or reinforce each other
and often they influence each other through interaction, imposition and transplantation. Often such influence is
reciprocal. In this respect, I forced to set forth in large an extract from the work of famous thinker – Bruce
Ackerman, because his position brilliantly reflects reality concerning interaction between positive law and
normative order, and individual public normative acts and individual private normative acts from the point of view
of human rights. Let us listen intently to author: “Rights are not the kinds of things that grow on trees – to be
plucked, when ripe, by an invisible hand. The only context in which a claim of right has a point is one where you
anticipate the possibility of conversation with some potential competitor. Not that this conversation always in fact
arises – brute force also remains a potent way of resolving disputes Rights talk presupposes only the conceptual
possibility of an alternative way of regulating the struggle for power – one where claims to scarce resources are
established through a patterned cultural activity in which the question of legitimacy is countered by an effort at
justification. …While it is impossible to analyze every concrete institution that regulates the struggle for power, we
must resist the temptation of grossly simplified account. This is, perhaps, the most common mistake made by
partisans of the liberal tradition. Time and again, these people speak as if the only significant power in society
comes out of the smoking typewriter of government bureaucrats. While they are tireless of their efforts to constrain
this power by exacting standards of neutrality, they often react with shocked surprise at the very idea of subjecting
the powers of “private” citizens to an identical scrutiny. Yet, first of all, we live in a world in which the powers of
government are routinely called upon to enforce (as well as define) all of these “private” entitlements. Without this
reinforcement, there is no reason to think that those presently advantaged by the distribution of “private” rights
would remain so. …While the past century has not been rich in normative liberal theory, there has been a
superabundance of descriptive accounts and positive theories in economics, politics, psychology, child
development, and many other areas of obvious normative significance. This overwhelming literature poses serious
problems for liberal political philosophy. …Thus, if judges where unable to predict future conduct accurately or if
they selectively invoked the risk of future harm to suppress people if they considered “deviant”, then the dangers of
illiberal abuse involved in preventive restrictions might well outweigh Endangered’s right to physical security.
…The problem – relating ideal to reality – serves as a critical test for any political philosophy. On the one hand, a
theory that cannot serve as a practical guide is merely utopian fantasy, an inferior form of fiction. On the other
hand, a book that offers a detailed action program is merely a symbol of theorist’s power lust, an inferior form of
autobiography”.” 1
This essay suggests that sharp distinctions between general and particular jurisprudence have a limited value
at levels, including positive laws of Romano-Germanic and Anglo-Americans countries, because all of them
represent the positive laws of appropriate countries. More over, as justly underlines Twining: “Globalization brings
to the fore a wide range of issues as transnational, international, and global levels and is rapidly changing the
significance of national boundaries.” 2
Controversially, this essay suggests that sharp distinctions between general and particular jurisprudence on
the one side, and normative legal and non-legal jurisprudence on the other side, have no limited value at all levels,
including normative orders of Romano-Germanic and Anglo-Americans countries, because all of them represent
diversity of normative orders, more over, contradiction between legal monism and normative pluralism, between a
single positive law and plural normative orders at the internal, regional and global levels.
In this respect, Dworkin’s agenda for legal philosophy really support our theory of normative order, because
his main interest is correct and arguable adjudication in hard cases. He confines his focus to question: what
constitutes a valid and cogent argument on a question of law in a hard case? His answer is much wider than a theory
of common law adjudication for at least three reasons. First, within any legal systems judges are not only actors
1
B. A. Ackerman, 1980, Social Justice in the Liberal State, New Haven and London, Yale University Press, p.p. 5, 18-19, 65, 84,
231.
2
W. Twining, op. cit. p. 47
25
involved in interpretation. Officials, good citizens, an experts are typically concerned with the best interpretation
and not just to second-guess judges. Secondly, concepts like “judge” and “court” are quite culturally specific.
Thirdly, as Dworkin has acknowledged, his ideas about interpretation and argumentation could possibly apply in
societies that have no third party adjudication. Such position belongs to “Law in Action” (normative order), than to
“Law in the Books” (positive law), because litigation, lawyers, judges, courts are historically institutionalized at the
level of normative order, which is connected with the established practice of legal acts of public bodies. Dworkin
draws a distinction between “the very detailed and concrete legal theories lawyers and judges construct for a
particular jurisdiction and the abstract conceptions of law that philosophers build, which are not so confined.”
Dworkin claims that his best theory of law describes legal practice as well as prescribing best practice. 1 And this is
correct, because for me the established practice (precedent) of normative acts of public bodies is not the part of
public law, but the public normative order.
In whole, I agree with Dvorkin in above mentioned directions, but answer is not imperfect on the question:
What constitutes a valid and cogent argument on a question of law in a hard case? A valid and cogent argument on a
question of law in a hard case should be issued from strong criterion. Without such criterion any answer will be
very discussable, and sometimes curios. For me, such criterion is the human rights conventions and established
practice (precedents) of human rights courts at the regional and international levels.
Therefore:
I. State Law or Positive Law is the summary of impersonal and abstract legal acts, by which have been
generally and hypothetically regulated potential economic, social, cultural, civil and political relations in the
country among public bodies and/or private persons through the recognition and distribution mutual rights and
obligations, which in a case of their violations are guaranteed by the possible application of legal force by the just
judiciary. 2
II. The Normative Order is 1) the established and stabled order or practice of realization of abstract legal acts
by public bodies that particularly and concretely regulate real interpersonal relations through the official distribution
mutual rights and obligations among the individual participants of normative relations and their interaction; and 2)
the established and stabled order or practice of realization of free individual wills of private persons that particularly
and concretely regulate real interpersonal relations through the unofficial distribution and realization of mutual
rights and obligation among the individual participants of normative relations, and 3) the established and stabled
order or practice of realization of abstract legal acts by the just judiciary through the application of legal force that
particularly and concretely regulate real interpersonal relations among the individual participants of normative
relations in a case of violations of mutual rights and obligations. 3
In legal space, state of positive law does not directly influenced on state of legal order i.e. on the state of
established legal practice of public bodies. Analyzing human rights records of such authoritative and competent
organizations as are UN agencies, Amnesty international, Human Rights Watch, Charles Humana, Freedom House,
Transparency International and numerous of other bodies concerning observation of universal human rights law by
different nation states and regimes, directly underlines distinction (sometimes huge distinction) between “Law in
the Books” and “Law in the Actions”, i.e. generally between Single Positive Law and Plural Normative Order.
Necessity of eradication of contradiction between positive law and normative order arises when “antientropyan” (self-regulatory and/or self-governing) autonomous mechanisms exhaust their means and resources, and
level of disorder in normative order reaches a critical stage. Necessity of eradication of contradiction between
individual acts of public bodies and individual acts of private persons inside the normative order arises when “antientropyan” (self-regulatory and/or self-governing) autonomous mechanisms exhaust their means and resources, and
level of disorder in normative order reaches a critical stage.
When entropy in any space of normative order reaches the stage, which is threatened the vital life of civil
society, is appeared an idea of legal reconstruction of appropriate space of positive law. More clearly, when in the
process reaches evident theoretical contradiction between positive law (ought to be) and normative order (to be),
and between individual acts of public bodies and individual acts of private persons inside normative orders, which
indicates that positive law inadequately and unjustly regulates relations between natural and/or legal persons, any
legislator must began the process of thoughtfully investigation and exploration of normative order for the
elaboration of new positive law which adequately and justly resolved such contradiction between positive law
(ought to be) and normative order (to be) generally, and between individual acts of public bodies and individual acts
of private persons inside legal orders particularly. In other words, the aim and goal of such investigation and
exploration is to discover the normative disorders inside normative orders, and than elaboration of new positive
R. Dworkin, 1968, Law’s Empire, p.p. 90, 102, 103, 241.
Bidzina Savaneli, 2004, General Theory of Law, Manual, ed. Technical State University of Georgia, in Georgian, p. 13.
3 Bidzina Savaneli, 1981, Normative Order and Judicial Practice, Monograph, ed. Academy of Sciences of Georgia, Tbilisi, p.p.
22, 41, in Russian.
1
2
26
laws for eradication of normative disorders. Achievement of such aim and goal is the main function of any
legislator on the local, internal, regional or global levels.
The purpose of investigation and exploration of normative order i.e. investigation and exploration of
individual acts of public bodies (public normative order) and individual acts of private persons (private normative
order) are to decrease entropy through the improvement of appropriate fields of positive law. First of all, it means
generalization of normative practice of normative acts of public bodies in the process of distribution of mutual
rights and obligation among participants of normative relations and generalization of normative practice of private
persons in the process of distribution of mutual rights and obligation by them, which first of all is the obligation not
sociologists but professional jurists with the sociological bias. After that, adequate and just resolution of
contradiction between positive law (ought to be) and normative order (to be) normative system of the country in
whole, and between individual normative acts public bodies and individual acts of private persons inside the
normative order through the creation of new positive law, using P. Ricoeur’s general model, generally consists of
three stages: pre-figuration (anticipation), con-figuration (formalization) and re-figuration (reorganization). 1
Particularly, the process of thoughtfully investigation of normative order for the elaboration of new positive law
should be based on the normative pyramid of reasoning.
With a view to explain of process of mutual transition, spiral and evolutionary development of single positive
law and plural normative order related to the new comparative normative order study in context of global conflicts
resolution it could be used Prof. Dr. L. Djokhadze’s impressive model of stylistic-conceptual system in her very
important monograph “Literary Text as a Stylistic-Conceptual System” (2008), which closely converged with my
position in my monograph “Normative Order and Judicial Practice” (1981). L. Djokhadze’s position is following:
“In normative pyramid of reasoning the core sensual variants concentrate in the center and move from the bottomup to the top while all the marginal ones after checking and filtering remain on the lower levels or strata of the
model to form background knowledge to the effect to the cognitive normative concepts. Every previous phase is a
preparatory stage to proceed on the follow-up phase until finally the investigator achieves hierarchically top phase
to elicit the conceptual information. The process of making predictions includes a certain adaptation. The degree of
adaptation depends on the amount of frustrated expectations or justified predictabilities. So that in case of regular
goal-oriented movement of above mentioned methods – adaptation the investigator may benefit, elucidating the
maximum information at expense of minimum time and effort. Simultaneously moving up-ward to the top of
cognitive-normative pyramid there is top-down sensor checking process as well, which sets up loose associations
condensed in our concept. It offers the knowledge and experience of all the previous phases. Otherwise this selfregulated system shows how to achieve the non-finalized decisions made in every phase. Any element that occurs in
this system has its own normative structure. Drawing attention to the most important one, the investigator
reluctantly receives information about other parameters i.e. we observe constant changing process of analysis and
synthesis. To the end, the cognitive normative concepts assist us the cognize the world, both visible and/or invisible,
organizing the surrounding chaos of normative disorder into the order of orders”. 2
The process of permanent taking off a contradiction between individual normative acts of public bodies
and/or individual normative acts of private persons inside legal orders, and the process of taking off a contradiction
between positive law and/or normative order in the frameworks of their permanent inter-transition creates a spiral,
sustainable and evolutionary tendency through which any legislator comprehend a sense of law. In philosophical
terms: mutual transition, spiral and evolutionary development of positive law and normative order based on the
“principle of causality through freedom”, but not “principle of causality of the nature”. The aim and goal of such
mutual transition, spiral and evolutionary development of positive law and normative order is to achieve the
sustainable development of humankind.
Therefore, normative order is a system of normative orders (“order of orders” using great Rustaveli’s term –
see below). Normative orders interact to each other in the frameworks of normative order. Normative order and
normative orders interact like interact of whole and part, but not like general and single. More precisely, the
normative order of each country is a gamma of normative orders of individuals and/or groups bound by mutual
rights and obligations. Developing A. Reinach’s and G. Naneishvili’s theories, I underline that the bearers of mutual
rights and obligations are related to each other psychologically or mentally but mutual rights and obligations are
themselves related - logically. Mutual rights and obligations of individuals and groups are neither psychological
entities nor mental. Mutual rights and obligations are exclusively normative entities like norms of positive law.
Moreover “they are always prior to the positive law.” 3
1
P. Ricoeur, 1983, Le Temp et Recit. Paris, Vol. I, p. 59.
L. Djokhadze, 2008, Literary Text as a Stylistic-Conceptual System”, Summary in English, ed. “Khirony”, Tbilisi, p. 41, in
Georgian. See also, B. Savaneli, 1981, Normative Order and Judicial Practice, ed. “Soviet Georgia”, in Russian.
3
G. Naneishvili, op. cit, p. 58.
2
27
Different levels of normative order generally are not neatly nested in hierarchies, nor are they impervious, nor
are they static. They interact in complex ways. Moreover, to understand the normative order, the study of norms is
almost never enough. One also has to take account of values, facts, meanings, processes, structures, power relations,
personnel, and technologies.
Therefore single positive law (“solen”) and normative order (“sein”) are different space of life of
Humankind. Single positive law is a summary of impersonal rules, which generally regulates potential economic,
social, cultural, civil and political relations in the country through distribution of mutual rights and obligations
among the possible participants of these relations. Plural normative order is a summary of personal rules, which
individually regulates real economic, social, cultural, civil and political relations in the country through distribution
of mutual rights and obligations by the participants of these relations.
At the international level we have a single state (positive) law – international (public and private) law and
plural normative order which includes public normative acts of sovereign states and their bodies (official normative
order), and private normative acts of sovereign persons and their unions (non-official normative order).
At the regional level we have a single state (positive) law, for example, EU (public and private) law and
plural normative order, which include public normative acts of EU member states and their united bodies (official
normative order), and private normative acts of sovereign persons and their unions in EU space (non-official
normative order).
At all, international and regional (including internal) levels, the normative order censors how positive law
favors to the observation human rights and freedoms by public bodies and private persons.
Using great J. Bentham’s term on “Censorial Jurisprudence” concerning my theory I put in this term the
following sense. “Censorial Jurisprudence” should explore the positive law from the point of its conformity to the
jus cogens principles of law and international law. “Censorial Jurisprudence” should at all levels explore the
conformity of positive law and normative order from the point of justice. “Censorial Jurisprudence” should explore
at all levels any contradiction between positive law and normative order from the point of their conformity to the
principles enshrined in International Bill of Human Rights.
Therefore:
Comparative jurisprudence is a comparison of existing systems of Positive Laws of different nation countries.
Comparative jurisprudence is a comparison of existing systems of Normative Orders of different nation
countries.
Comparative jurisprudence is a comparison of existing systems of Positive Laws and Normative Orders of
inside of nation countries.
Comparative jurisprudence is a comparison of existing systems of Positive Laws and Normative Orders of
outside of nation countries.
Comparative jurisprudence is a scientific investigation of harmonization, mutual transition, spiral and
evolutionary development of single Positive Law and Plural Normative Order.
28
V. Mutual Transition of Single Positive Law and Plural Normative
Order in the frameworks of Jurisprudence
Comparative analyses of Positive Laws of different countries traditionally had been made by scientists
carefully, but comparative investigation of Normative Orders of different countries has not been made. More over,
situation states more complicated after introduction of notion “Legal Pluralism”. Legal pluralism has became such
plural that it looks like impenetrable jungle in which legal scientists have gone so far that they will hardly get out.
Related to this, scholars sometimes refer to “pluralism” of putative, emergent, even fantastical, supranational
branches of law: global administrative law, a putative lex mercatoria, human rights or refugee law, lex sportiva,
public international law, lex constructionis, ius humanitatis, lex pacificatoria, private international law, regional law
(for example, the European Union, European Convention on Human Rights, and the African Union); transnational
law (for example, Islamic, Hindu, Jewish law, Gypsy law, transnational arbitration, internet law, and, more
controversially, the internal governance of multinational corporations, the Catholic Church, or institutions of
organized crime); inter-communal law (as in relations between religious communities, or Christian Churches, or
different ethnic groups); territorial state’s law (including the legal systems of nation states, and sub-national
jurisdictions, such as Florida, Greenland, Quebec, and Northern Ireland); sub-state’s law (e.g., subordinate
legislation, such as bye-laws of the Borough of Camden) or religious law officially recognized for limited purposes
in a plural legal system; and non-state (including laws of subordinated peoples, such as native North Americans, or
Maoris, or the Romany people or illegal legal orders such as Santos’s Pasagarda law, the Southern People’s
Liberation Army’s legal regime in the Southern Sudan, and the Common Law Movement of militias in the United
States). At the same time, scientists of legal theory during centuries and scientists on comparative law about 60
years are still oriented exclusively on the forms of municipal law of nation states and/or international law, while the
normative order (established practice of normative acts of public bodies and private persons) of each countries and
the world has remained in the shade.
The “legal families” theory or Comparative Law ignores the phenomenon of normative order. Almost all
scientists operating in comparative law and legal theory ignore any role of established practice of individual
normative acts of public bodies and private persons in formation of normative order. However, the state and certain
combination of practice of individual normative acts of public bodies and private persons construct individual face
of normative order of the country, which is always different of other country disregard that both could be even
entered in the same legal family. So it is necessary to introduce a new branch of legal science: Comparative
Normative Orders Study, which should not be investigating in the framework of Comparative Law Study.
If we compare Positive Laws of different countries inside and/or outside of the contemporary legal systems
we will found much more commonality then difference. Principles of Roman law permeate the global legal system.
“Law in books” has a cosmopolitan character. Differences between Anglo-Saxon and Francophone legal systems
are largely superficial and not substantial. Distinction between written and unwritten law is principally superficial,
because each composes Norms. “Written law” however is technically precise. For example, distinction between
public laws of German, France and England in whole are not substantial, but established practice of legal acts of
public bodies in whole are substantial, because a decision-making processes have influenced respectively on the
“German theoretical spirit”, “French pragmatism” and “Anglo-Saxon empiricism”. It is also important to take into
consideration factual changes that are produced through the passing of time, including each country’s legal political
environment, the prominent ideas within society and especially government, and the officers themselves. More
over, cases are dynamic than static, which are linked with meta-juridical factors. Therefore, if we compare legal
orders of different countries inside and/or outside of the legal systems, we will found much more differences than
commonalities. The “comparative legal families” theory ignores phenomena of normative order as well as different
normative orders of and in countries, separating jurisprudence from reality. In this respect, it is necessary to restore
in transformative form a particular jurisprudence, which will explore the normative order of each country and then
compares the normative orders of different countries. So, in this sense I put forward an idea of practical
jurisprudence.
Our construction is based on the following strong fundaments. Positive law as the system of sustainable
general norms of each country includes sustainable Public Law and Private Law. Accordingly, Comparative Law as
the part of legal science compares sustainable Public Laws and Private Laws of different countries. Normative
Order as the system of sustainable individual norms of each country includes sustainable practice of execution of
public law and private law by public bodies and sustainable practice of distribution of mutual rights and obligation
by individual natural and legal persons. Accordingly, Comparative Normative Order as the part of legal science
29
compares sustainable practice of execution of Public Laws and Private Laws by public bodies of different countries
and sustainable practice of distribution of mutual rights and obligation by individual natural and legal persons of
different countries. Thereto it is methodologically helpful to introduce a new branch of the legal science –
“comparative normative order”.
Such point of view is necessary for the strengthening of the European house and the distribution of
Democracy in Post-Soviet and developing countries. Our early position concerning normative facts (1978) partially
has been strengthened by W. Twining in his fundamental scientific work, in which he correctly underlines: “I have
suggested that normative ordering reflects all levels of human relations (including legal persons, groups etc)... It has
the advantage of drawing attention to various levels of non-state ordering and emphasizing the point that these
different levels are not nested in a single vertical hierarchy.” 1 Accordingly, a duty of scientific researches of legal
experts is not only to comment on and analyze laws but also and mainly to describe and analyze the normative order
in its several forms. The plurality of the normative orders includes the normative order of countries, regions, cities,
villages etc, as well as different macro and micro groups in these spaces. Through exploration of normative order at
the any levels gives to the legislative powers information about the justice and/or injustice of appropriate segments
of the positive law. Such information must be scrupulously work up and then “translate” into the language of
positive law. I believe that above-mentioned differences should be serve as starting point for the continuing
dialogue among different cultures (for example, between Christians and Muslims). Expending the functions of legal
experts and thinking “outside legislative box” would make normative space of Humankind directly applicable to the
goals of local, national, regional and global conflicts resolution.
The endlessly coexistence of constant positive law and inconstant normative orders is a historical fact.
Historically, positive law and normative order never coincided - luckily, because such differences are a precondition
of progress and prosperity. But, for sustainable development, it is necessary to create permanent checks and
balances between them. If positive law supersedes the normative order, dictatorship results in national system. If
normative order supersedes positive law, the result is anarchy in international system. Positive law, as a monistic
phenomenon, consolidates. Yet normative order, as a pluralistic phenomenon, isolates humankind. This is a good
balance, like the balance between public law and private law. The goal is to strengthen positive law and to bring
normative orders of different cultures closer together, into greater harmony. Looking for isolated differences from
the whole is a dangerous mistake. A function of the legislative, executive and judicial powers is to create permanent
checks and balances between them on both levels.
Therefore, I am putting forward a new theory about the Dialectical Interaction between Single Positive
Law and Plural Normative Order at national and international levels. Dialectical Interaction between Single
Positive Law and Plural Normative Order means the harmonization, mutual transition, spiral and evolutionary
development of positive law and normative order, which is also expressed inside and outside the system of law in
relation to normative environment, towards the optimization of the whole system of law. Such system of law is
under permanent self-organization, self-reproduction and self-catalysis, and is receiving feedback and exchanging
normative information with its environment it may move and develop toward decreasing entropy and increasing
positive law and normative order.
To the end, it will gradually arrive at the optimum state of the whole system of law and order. This is what
Aristotle and Hegel meant when they talked about "movement of the whole" and "thesis, antithesis and synthesis".
In Hegel's view, the third category, synthesis, is the truth of the two former categories. As old unities are replaced,
new ones are generated.
Dialectical coexistence, harmonization, mutual transition, spiral and evolutionary development theory of
system of law and order open the general mechanism of evolution from disorder to order in the framework of
normative order too and, using great Shota Rustaveli’s phrase, which “taught humankind to be able to join the
supernal order of orders”. It pushes Humankind from the closed cyclic position to the spiral-evolutionary stage. Any
other fixed view would simply be non-dynamical and non-dialectical. This is an important principle that systems are
necessarily in motion, always in a state of change and process. “In the frameworks of legal system single state law
and plural normative order are interconnected, that is to say, they react on one another; it is precisely this mutual
reaction that constitutes motion.
Even in conditions of incapability of positive law to adequately regulate appropriate public or private
relations, inside normative order is acting the law of conservation of anti-entropyan energy i.e. self-regulatory
mechanisms, which able to correct misbalances. The orderly system again contains disorderly factors, and the
development of an orderly system with disorderly factors again leads the system into disorder, thereby a new
orderly system is produced. Order conquers disorder, and disorder negates order, thus reaching a new orderly
process. So, in the normative order we have the dialectical unity and contradiction of orders and disorders. But at
1
W. Twining, op. cit, p. 223-224, 253.
30
last, entropy “win a victory” over anti-entropyan processes, which cause the necessity of outside encroachment. In
such circumstances the state have legal obligation to remove entropy through the passing or correcting of positive
law. And this process should be in progress endlessly. This is a peacefully model of sustainable development of
nation states and humankind.” 1 Mommsen's theory of Roman magistracy, Jhering's theory of the struggle for right,
Kohler's view of the evolution of contract have been evolved by such a process of my legal analysis.
The harmonization, mutual transition, spiral and evolutionary development of single positive law and
normative order, and different orders in normative order, using Bertalanffy phrase, is brought about by either
'natural transformation' or 'dynamic transformation' in the case of the social realm. The law of optimization,
according to Hegel, is characterized by the self-perfecting process of negation of negation, part of the movement
form disorder towards order and improved system of law in whole. This is a quantitative shift but also a qualitative
change of the system and method for understanding that system. This upgrades the process of negation of negation
to the domain of the disordered - ordered - newly disordered - newly ordered, which is a more extensive and
penetrating domain than the former. This dialectical process is not merely quantitative, but it achieved qualitative
stage. At the same time, the dialectical interaction between positive law and normative orders today needs an
adequate conceptual framework and meta-language than can transcend national legal culture. Such function could
be undertakes Universal Human Rights Law and the World Court of Human Rights as a coordinator of
peaceful and cyclical inter-transitions of positive law and normative order.
The bridge between states rights and the rights of individuals was made by H. Grottius who “made this
remarkable claim, that there is no significant moral difference between individuals and states, and that both may use
violence in the same way to the same ends”. H. Grottius was concerned with the use of force but still conceived the
notion that individuals may possess rights equivalent to the rights of states. There was some initial discussion on
human rights in the “seventeenth century and early treaties such as the Treaty of Westphalia (1648); the Congress of
Vienna (1814-1815) and the Treaty of Berlin (1878) are illustrations of spasmodic attempts to guarantee protection
of rights for ethnic and religious minorities”. Locke theorized that rulers must rule justly and also respect the
intrinsic rights of their subjects such as life liberty and estates. It is also important to note that as Locke saw them
human rights is a misnomer (as they were not for all humans) as “he did not see women, “savages”, servants and
wage labors as right-holders” John Locke’s Second Treatise of Government (1688) is conventionally, and with
some justification, seen as the first fully developed natural rights theory consistent with later human rights ideas”. 2
In that context, phenomenon of globalization has attracted more significant global attention than perhaps any
other issue, particularly international law in recent memory. It is clear that the phenomenon is capable of any
number of conflicting and sometimes even contradictory interpretations, particularly of a qualitative or value-laden
nature. The protests also brought to the fore the multifaceted nature of the phenomenon of globalization and its
potential impact on a whole range of contemporary social, political, cultural and economic relationships. If nothing
else, the protests demonstrated that in the foreseeable future, globalization will remain an issue of considerable
importance to both intellectual debate and discussion as well as to the overall conduct of international relations,
sustainable human development, and the promotion and protection of international human rights.
Another form of globalization can come from below (such as the environmental, women's and anti-nuclear
movements, or in the case most relevant to this discussion, human rights struggles). The human rights movement
has long laid claim to a universalizing (indeed some would say a globalizing) mission. This is evident in the
assertion that the regime of rights and freedoms established through the Universal Declaration of Human Rights and the numerous other instruments that have since been promulgated in the same spirit - extend beyond the arena
of purely national concern. Globalization can be brought down from the rarefied and glorified atmosphere of
corporate boardrooms, and home to the daily realities of ordinary human beings.
Therefore the time seems ripe to engage in “interdisciplinary” dialogue with them on the Human. Reflection
on the spiritual teachings by contrasting them with normal science may or not enable us to summarize what is
universal in Human Being?
In the cosmologies of African animist societies there is no God Creator. The world emerges progressively
from chaos, which already contained in an indistinct way all the potential future. First emerges a primordial god,
followed by other gods and powers, which often manifest as complementary couples and finally Man. It is thus,
unlike as in our myth of creation, the multiple, the unstable and the unorganized which “constitute the foundation”
of the world. The world creates itself at each instant and Man plays an important part in this process by contributing
to the preservation of the universe's harmony. The unity of society is thus not perceived as the result of the
obedience to a uniform, superior order but as the affirmation of distinct groups, who mutually need each other and
1
B. Savaneli, 1981, Normative Order and Judicial Practice, Tbilisi, in Russian, p. 22-23. Unfortunately I could not find any
information on mutual transition of order and disorder even in general on the any WEB.
2
Donnelly J, Human Rights and Asian Values: A Defense of Western Universalism, Cases and Materials, Volume 1, Law 730,
p 61.
31
are therefore seen as complementary and united. Furthermore as general immutable external rules are rejected Men
are seen as themselves responsible for their future - which they create every day anew through custom valorizing
conciliation and an in-animist spirit. 1
Likly, Dharma for Indians not only inscribes the human beings in society but in the whole universe for which
they become partly responsible and as Panikkar notes: “(...) a world in which the notion of Dharma is central and
nearly all-pervasive is not concerned with finding the 'right' of one individual against another or of the individual
vis-à-vis society, but rather with assaying the Dharmic (right, true, consistent) or adharmic character of a thing or
an action within the entire the anthropocosmic complex of reality.” In this conception the individual cannot be
conceived as an abstract independent entity, as he is “only the knot in and of the net of relationships, which form the
fabric of the Real”. It is the different statuses of men, which will determine their mutual rights and duties.
Furthermore as already noticed, dharma brings in the idea of a cosmic relation and responsibility extending beyond
the purely human realm. “Humankind has the 'right' to survive only insofar as it performs the duty of maintaining
the world (lokasamgraha).” Thus the Indian worldview also invites to take a global perspective on Human Rights
and not to merely see them as the mere assembly of a set of separate and independent rights. 2
In order to think pluralism in the domain of “universals”, intercultural dialogue may again turn out to be
fruitful. A religion's universality for instance must not necessarily rely upon the uniform submission of all to it, as
we tend to think in a Christian perspective. In Indian thought for example, where the differences of characters and
the necessity of adapted spiritual paths for each are an accepted fact, different yogas, or spiritual paths, coexist and
complement each other. In each of them realization of God is sought in a different way. There is for example Karma
yoga or “yoga of disinterested action”, Bhakti yoga or “yoga of devotion”, Jnâna yoga or “yoga of knowledge”, etc
... As Vivevekananda writes: “There are certain religious facts which must be perceived just like facts in material
science and it are on these facts that religion will be built. (...) The sages of the world only have the right to tell us
that they have analysed their mind, that they have made such and such observation, and that if we proceed likely we
also will believe, but not before. That is all that there is in religion.” 3
It seems that the different spiritual traditions, as spiritual practices which “constitute different methods for
the attainment of spiritual objectives, for verifying the doctrines formulated by prophets and sages, and for
experiencing the Transcendent”, as Gopi Krishna writes about Indian Yoga, have lead to the experience of similar,
“universal” facts about the human all over the world. Nevertheless they have weighed differently different aspects
of the experience of the human and have expressed this experience in multiple ways. Our challenge may be to come
now to a mutual enrichment of all these traditions, to an exchange of perspectives on the experiences of “human
nature”. 4
The autonomization of normative order and democratization of societal life indivisible process. "As a general
conclusion," Vinogradoff asserted, "it may be said that the will of the state is not the one factor in building up
Right and Law in human society. There is a second factor of equal importance — the consciousness of men as to
their rights. In practice Law appears as a shifting compromise between these two factors." At another time, he
defends the main proposition of Duguit's political philosophy in these words: "The attempt to define the nature of
the state in juridical terms is not a quibble of the lawyers. It is an obvious consequence of the view that state and
government in a civilized country, in spite of their might have to conform to a rule of law, and that the more closely
their functions are subjected to the application of ordinary legal rules and methods, the better will be the guarantees
against oppression, corruption and arbitrary measures." 5
Once I have recognized both the natural and positive law character of human rights (1993) and rejected the
theory that bases the whole international law on the agreement of the will of states (1997), I find no special reason
to deny that the human rights have the character of jus cogens. (2003). The universal recognition of human rights
signifies that no state can freely dispose of the rights of its own nationals, and that other states are equally
responsible for the protection of the rights of those who are not their own nationals. So far as the respect and
protection of human rights are concerned, a World Law dealing with human rights and having a universal character
limits the sovereignty of each Member State of the United Nations. Professor van Boven emphasizes the “suprapositive” character of Fundamental Human Rights, and urges they are based on Natural Law. 6 Positive Human
Rights Law is based on Natural Human Rights Law, from which it has been originated. More over, for me legal
relationship between the individuals and the state is based on the natural law principle – pacta sunt servanda, which
Alliot Michel, La coutume dans les droits originellement africains, 1953-1989 Recueil d'articles, contributions à des colloques,
textes du Recteur Michel Alliot”, Paris, LAJP, 1984, p. 283.
2
Panikkar R., Is the notion of Human Rights a Western concept? Interculture, Vol. XVII, n° 1, 1984a, Cahier 82, p. 28-47.
3
Vivekananda Swâmi, Jnâna-Yoga, Saint-Amand, Albin Michel, Col. Spiritualités vivantes, Série Hindouisme, 1972, p. 446.
4
Krishna Gopi, 1994, Kundalini - The secret of Yoga, Delhi, UBS Publishers' Distributors Ltd., p. 214.
5
Paul Vinogradoff, 1969, Historical Jurisprudence, v. I, p. 92.
6
Van Boven, 1982, Distinguishing Criteria of Human Rights, in J. The International Dimensions of Human Rights, p. 44.
1
32
originated from latent Social Contract (or quasi contract) between society whole and representatives of that society,
who are hired for the fulfillment of legislative, executive and judicial functions as guarantees of sustainable
development. On the other hand, pacta sunt servanda has received positive law character as a result of
constitutional recognition and notification of Human Rights by the States, which means that the legislative,
executive and judicial bodies take responsibility in the effective implementation of that social contract.
To the end, the process has gone to the recognition of Jus Cogens character of Universal Human Rights Law.
The concept of jus cogens according to Rozakis was “conceived as a minimum legal standard of world order which
may give an air of social consideration to the otherwise unstable and extremely individualistic family of nations”. 1
The evolution historically may have been from a deity but is now seen as a product of human actions. As I have
underlined in 2003: “Jus Cogens principles of Human Rights restricted the scope of treaties. States are bound by
these jus cogens limitations when entering Human Rights treaties regardless of present or past views of the state.
While states must voluntarily assume treaty obligations, these obligations are regulated by the rules of Universal
Human Rights Law independent of the present views of international states. Universal Human Rights Law as a
junction of Natural Law and Positive Law roses above them and expressed the Universality of Human Being. Bill of
Human Rights is a normative confirmation of such Universality, leaving no state-party, particularly legislative,
executive and judicial bodies, without the choice, but only with the absolute and unilaterally binding obligation.
(Derogation is an exception but not a rule). This leads me to the hierarchy of World Law headed by Universal
Human Rights Law as a Grundnorm, which is the pick of Pyramid of the World Law.
More over, the Public International Law can no more also answer on problems to which faced Humankind
today: globalization and pluralisation of conflicts. The main theme that links the emergence of this new kind of
World legal order is disengagement of Human Rights and State Law. I aspire to make law and jurisprudence
more relevant to contemporary politico-economic realities of Humankind. Unlike Natural Law or Positivism, I do
not rely upon theological or other abstract sources such as an ‘ultimate rule’ for its validity. Instead, it criticizes
Positivism's ‘disastrous neglect of how rules are made, as well as of other important aspects of the comprehensive
process of authoritative decision.’ Likewise, it finds Natural Law theories deficient in failing to relate decisions to
the events ‘...in social process to which they are a response and, in turn effect. Benefit of methodology of
Anthropology of Law, which based on the idea of personal experience and leads us from a dialectical method of
understanding reality to a dialogical one, indisputable. But what is the goal of dialectical method of understanding
reality, if not a construction of any law for the follow up ‘social reproduction and conflict management?’
Construction of law is the farther stage after understanding ‘Reality’, after which a circle will repeat again and that
process is imperfectly and endlessly go on.
The goal of jurisprudence, in such situation, is to propose to society and state the just model of legal
organization of the country, more exactly, the just model of distribution of mutual rights and obligation among
potential participants of economic, political, civil, social and cultural relations.
I have based my theory on the possibility of coexistence, harmonization, mutual transition, spiral and
evolutionary development of single positive law (“sollenregel”) and plural normative order (“seinregel”), which
connected with the distribution of mutual rights and obligation among potential participants of economic, political,
civil, social and cultural relations and which removes contradiction between Pure Theory of Law and Sociology of
Law
More over, why in the capacity of grand theory of law, which ‘puts normative forms and puts into normative
forms the reproduction of humanity’, could not be used the Pure Theory of Law, which is very normative one and
perfect and paramount form for building hierarchy of Human Rights Law? From that point of view, Human Rights
Law removes any principle distinctions between state- and non-state law of nation country, between state- and interstates law. Only Human Rights law could be Universal. Is not it? Using recognized words: only Universal Human
Rights Law ‘underling social reproduction and conflict management though legal normativity’. But I would like to
go farther. The second level of the process of the inter-culturality must be exchange of information on legal
experience among people that take off some negative outcomes of pluralism as well as globalism, and lead us to
crystallization of new principles of Law through dialogue. If we stop on stage of description of diversity and/or
common legal values, we can't reach substance of Just Law and Order.
The case is that the Humanity is come into collision with global challenges, which never exist in history.
Which global challenges are? As well known they are six.
The first great challenge is that globalization has dramatically increased inequality between and within
nations. Over the past two decades, in fact, the number of people in absolute poverty has fallen, not risen. Global
1
C. Rozakis, 1976, The Concept of Jus Cogens in the Law of Treaties, p. 11.
33
inequality, for instance among households, has probably fallen also, as has inequality among countries, when
population weights them. Inequality has, unfortunately, risen inside some countries.
The second great challenge is that one of the growing sources of tension is the perception by some of the
developing countries that Western nations are attempting to force economic changes on them at a pace that is more
rapid than they are ready to accept, perhaps because there is insufficient political or social support. Probably the
speed of technological change and technological advance has been even more disruptive - has added more
competition and had an even greater impact - than the purely economic flows.
The third great challenge is getting the key criteria for economic success in place. The next basic criterion is
one, which everyone calls transparency. In far too many countries today, they are still a secret as far as their
application is concerned. Information is considered power, but it is not a power today if it is secret. Knowledge is
only a power when it is shared. And that is something that we have to understand when we talk about openness and
disclosure. It is that people in business cannot manage successfully to create jobs, to create wealth for their
countries, unless they know the rules of the game, unless these have been discussed in advance and are openly
disclosed, in a proper manner.
The forth great challenge is following: now many developing countries are worried that new technologies, or
even “older” technologies like information technologies or the Internet, are going to favor the wealthiest people the richest nations - and to push the poor into an even worse state. The distribution of technology is an increasingly
important challenge, but it is not preordained that the distribution of technology will not happen or that it will be
negative for poor people. When many countries are faced with the introduction of new technologies, they tend to be
used by a relatively small number of people.
The fifth great challenge is to make globalization work for a larger and larger number of people. The state of
development of many countries renders their economies weak and less competitive ability, and less able to deal with
complex problems. The environmental policies and the environmental realities of countries that are the most insular
and the most isolated are the worst, not the other way around. Environmental degradation, bad labor practices and
human rights abuses are the results of insularity - that is their primary cause.
The sixth great challenge is the cross-border conflicts, internal warfare, insecurity, crime, terrorism, drugs,
disease, inequality in things like education, digital training, health and life expectancy, new non-tariff barriers, new
customs regulations, messy processes, discrimination versus developing countries, market access, agriculture,
textiles, garments, services, labor and so on - the challenge is to “de-paralyze” these international processes.
Where is the outcome?
Obviously these six challenges has influence on the legal systems and life style many countries, but “Human
Rights as Common Language of Humanity” able to resolve global problems of Humanity through improvement of
Human Rights machinery on the international level at the beginning like European Human Rights Protection
system. The Human Community paradigm is not simply a natural concept but intends to provide a theoretical
framework permitting to rethink Human Rights in a plural though united and praxis oriented way on the global
level. What is at the core of the debate is to rethink a “Human Rights Community” permitting a “Rule of Human
Rights Law” on the local and global levels. For the possibility of such a Rule of Human Rights Law it is not enough
to build on the different cultural theories of Human Rights to permit the emergence of a “universal” one. If we want
to work for “Human Rights Community” we must also oriented on the practices, and not only on the representations
of those who are concerned. “Human Rights Law is Universal, because Human Rights indivisible and inherent
virtue of Human Beings to which Human being refer normatively (logically). That is non-ethnocentric approach to
Human Rights Law. Contrary to Human Rights, which always universal for all disregards of race and etc., law
practically links to statehood and other public institutions on the international, national and/or local levels. Only
Human Being is a natural entity, all others in society are man-made creations, including laws, but not Human Rights
Law, because Human Rights Law is identical to Human Being. Only one reality is a Human Being and other
creatures of God. The state is not creature of God”. 1
As well known, Radbruch addresses the philosophical implications of this when he teaches that there is a
right above the law and, for this reason that a given “law” can be “unlawful”. However he does not provide us with
any constitutional hierarchies or imperative International Human Rights Law as Jus Cogens to justify his reasoning,
because he was a philosophical stance, starting with the premise that, in general, security precedes justice in the
order of preference of values.
It seems that humanity has agreed with the idea that there exists a series of human values that are superior to
the national codes and international law. This is a sort of ius naturlis. The old jus gentium has become the new
1
Bidzina Savaneli, 2003, Jus Cogens Character of International Human Rights Law, Philosophy and Legal Theory for 21 st
Century, ed. David Agmashenebeli University of Georgia, Tbilisi, in English, p.p. 22-24. (This work is dedicated to the Memory
of Giant of Law and International Law – Hans Kelsen). See also: B. Savaneli, 1993, Law, Religion, Ecology, Chapter in the
Manual "General Theory of Law", p. 307, in Georgian.
34
imperative Universal Human Rights Law with extraterritorial jurisdiction and sources of law that go beyond internal
and international law. This new phenomenon can be found elsewhere. The growing number of international bodies
such as European Court of Human Rights, Inter-American Court of Human Rights, European Court of Justice,
International Criminal Court, International Tribunals for Rwanda and Yugoslavia, and etc., due their diverse
composition, principally agree on Universality of Human Rights. International treaties substantially do not deal with
genocide, crimes against humanity and war crimes, but with Individual Human Rights, because victims always are
individuals, and as such they are superior to the rights of states.
The list of Human Rights enshrined on International Covenants on Civil, Political, Economic, Social and
Cultural Rights added by the new freedoms such as freedom from genocide, freedom from government-organized
disappearance of people, freedom from terrorism, freedom from contraband armaments and traffic drug trafficking,
freedom from global warming and ozone depletion, freedom from over-fishing, deforestation and marine pollution,
freedom from corruption. Breaches of crimes against humanity from these parts of the Declaration and have
reached this level through increasing international resolve since the Second World War. Now as Lord BrownieWilkinson states, “international law provides that offences jus cogens may be punished by any state because the
offenders are ‘common enemies of all mankind and all nations have equal interest in their apprehension and
prosecution’”.1
Universal Human Rights Law is not linked by its nature to the existence of a state, nor to the formulation of
rules, and nor to the recognition of its rationality. The expansion of positive human rights law as supranational
World-Citizens’ Law today constitutes the essential preconditions for generality and reciprocity of granting
fundamental rights to the citizens. I speak of the new decentralized by the Fundamental Human Rights State, or - to
be more prudent – creation of the new state, named by us as Human Rights State. Europe seems to offer a
hybridized version of the state in the human rights context. In the case of Refah Partisi v. Turkey, the Grand
Chamber of the European Court of Human Rights acknowledged democracy as the relevant constituent element of
statehood. The case involved a human rights challenge to the decision of the Turkish Constitutional Court to have
the Refah political party dissolved on the basis that it was a “centre” of activities contrary to the principles of
secularism. The Refah party, among other things, supported a system based on “Sharia” law. The Grand Chamber
reiterated its view that democracy is a fundamental feature of the “European public order.” It considered that that
“there could be no democracy without pluralism” and viewed the state’s role as the “neutral and impartial organizer
of the exercise of various religions, faiths, and beliefs.” Most clearly, the Court said that the freedoms guaranteed in
the convention “cannot deprive the authorities of a State in which an association, through its activities, jeopardizes
that State’s institutions, of the right to protect those institutions.” Human rights protection then, is subject to the
state’s ability to survive as a democratic institution. 2
Universal Human Rights Law has non-ethnocentric character, while positive law and normative order
basically have ethnocentric character. Universal Human Rights Law is a new and the highest level of rule of law.
Universal Human Rights Law as Grundnorm closes a World Law system on the top. Using Kelsen's term about
international legal constitution I consider Universal Human Rights Law as the World Legal Constitution.
1
R v Pinochet (1999) http://194.128.65.4/pa/ld199899/ldjudgmt/jd990324/pino4.htm.
Case of Refah Partisi (The Welfare Party) and Others v. Turkey, European Court of Human Rights Grand Chamber, hearing
19 June 2002, Application numbers 41340/98, 41342/98, and 41344/98.
2
35
VI. Rule of Just Law under Universal Human Rights Just Law
Law and Force are compatible, but just law and force incompatible if creator of just law is under liens of
Universal Human Rights Law. The renunciation of force, itself associated with respect for cardinal principles lay
down in the Bill of International Human Rights. As well recognized, when the law becomes thoroughly politicized,
it is inevitably corrupted as even the most routine lawsuits become an opportunity for rent seeking and patronage.
On the other hand, the rule of just law provides an important set of protections for human liberty and basic human
rights. In this sense not Law but just law under liens of Universal Human Rights is a measure to eradicate use of
force. International Human Rights Law, as well European Human Rights Law, would seem to be the other great
innovation of the turning point of the post-war period. They too constitute both positive law and a normative ideal, a
‘sein’ and a ‘sollen’ assigned to everything, and thus legally subordinated to the achievement of a common goal.
About four century after, according to Kant in § 45 of his “The Metaphysics of Morality/Ethics”, the state is
to be seen as "the union of a number of people under just laws". It is not principally to treat the distinctions
between consideration of state as a servant of its citizen and consideration of all states as a servant of their citizens.
Generally and on the whole all citizens are Universal Persons of Law, because Human Being is outcome of any
laws, including international Law. Kantian consensus on the role of the state as a servant of its citizens has
already emerged, and the fundaments of a ‘right to democratic governance’ are not shaky. 1
The ideal of the rule of law is deeply embedded in the public political cultures of most modern democratic
societies. For example, the Universal Declaration of Human Rights of 1948 declared that "it is essential if man is
not to have recourse as a last resort, to rebellion against tyranny and oppression, that human rights should be
protected by the Rule of Law."
However, prevailing notions of public international law do not appear ill suited to finding adequate solutions
for the unprecedented myriad problems that are transnational in scope. Among these are global warming, ozone
depletion, over-fishing, deforestation, marine pollution, corruption, and terrorism, narcotics and contraband
armaments traffic, illegal trade in endangered species of flora and fauna, and unregulated financial transfers. These
problems exceed the capacities of any individual state or even any block of states to control effectively. To reply on
such unprecedented for the history of events in complex that is necessary to reconcile two contradicted theories:
Pure Theory of Law and Sociology of Law. We are suggesting a new theory named by me as “Anthropological
Normativizm” and have an attempt to argue the idea about Jus Cogens character of Bill of Human Rights. Bill of
Human Rights takes off any distinction between Pure Theory of Law and Sociology of Law. In this respect, partial
transformation of International Law into Universal Human Rights Law is a decisive challenge of our time,
especially after the September 11. Politics has polluted the Positive Law and Normative Order. Thus it is necessary
to purify them. My device in 2001 was the following: “Save the Planet after September 11 through ideological war
against several forms of racism based on the religion. Terrorism is not a cause, but outcome of such racism.
Accordingly we must fight not only against terrorism, but also and basically against the cause of it. The cause of
terrorism is the tendency toward of formation of Global Government. The paradoxical statistics approving this
process is given by the well-known researcher Q. Whrite: the number of armed conflicts on the European continents
in 15th century was 9, in 16th century - 87, in 17th century - 239, in 18th century - 651, in 19th century - 781, in
20th century-892. 2
Such alarming statistics is corroborated by other scientist and is considered to be doubtless. So, the higher is
the level of civilization the more is the number of conflicts and vice versa. It’s strange and very perplexing event.
After September 11 Humankind has entered into new, at the start - more dangerous transmission era, in the seventh
dimension. The religious separatism is today’s tragically reality and the real “chance” of perdition of the humanity.
In this respect it is necessary to recall following positions of the World Conference on Human Rights: «The
imperative of universality will undoubtedly be in evidence throughout our debates. Universality is inherent in
human rights. The UN Charter is categorical on this score: Article 55 states that United Nations shall promote
universal respect for, and observance of all without distinction. The title of the 1948 declaration is universal, but
not international, reinforces this perspective. However, this concept of universality must also be clearly understood
and accepted by everyone. It would be a contradiction in terms if this imperative of universality, on which our
Cf. Macdonald, 1993, The Principle of Solidarity in Public International Law, in C. Dominicé, R. Patry and C. Reymond (eds),
Etudes de droit international en l'honneur de Pierre Lalive, p. 275.
2
Q. Wright, 1965, A Study of the War, 2nd ed., with a Commentary of War since 1942, ed., University of Chicago Press,
Chicago, p. 221. See also: Save the Planet after September 11 ... Bizina Savaneli on March 22, 2002 at 13:27:24: ... If we
compare Legal Orders of different... Eradication of the World War III... www.ejil.org/forum_WTC/messages/ 46.html - 86k –
1
36
common conception of human rights is based, were become a source of misunderstanding among us». More over:
«The universal nature of these rights and freedoms is beyond question. Human rights and fundamental freedoms are
the birthright of all human beings; their protection and promotion is the first responsibility of Governments».
«Human rights, by definition, are the ultimate norm of all politics». «Human rights, by their very nature, do away
with the distinction traditionally drawn between the internal order and international order. Human Rights give rise
to a new legal permeability». 1
Universal Human Right Law and International Law are distinct by the sources of each of them. The sources
of International Law are basically collection of rules, which govern the relations among States. The sources of
Universal Human Rights Law is constitute of rules, which directly govern the relations between Individuals and
States through the recognition of economic, social, cultural, civil and political rights and freedoms of individuals
before the States, and through the imposition economic, social, cultural, civil and political duties on States before
the individuals. These rules are consolidated in collection of documents. 2
Judicial enforcement of Human Rights by states against one another, especially against state with a big power,
is rare. States acts are determined in the first instance by political and economic considerations and only inter alia
by notions of Justice and Law. Such a process does not strengthen respect and observation of the Human Rights, but
lead to its politicization. Isolated cases of Human Rights violations may not justify a state risking its political good
will with another state. Absent of World Court of Human Rights like European Court of Human Rights make
completely unable international mechanism of protection of Human Rights protection in rest of the World and
create endanger Peace in whole. Thus the most population of the world, especially developing countries have
remained without efficient protection of their fundamental rights and freedoms. In such situation population of
developing countries enforce to use action popularize like revolution, reveal, terrorism and other inpeacefull
actions.
The striking difference between the number of individual cases (53.000) and state complaints [21(!)] clearly
reveals that the respect and observations of Human Rights is better pursued by individuals themselves, who are
either more determined or have been more injured by the states action. The old European Human Rights Court
handled only one state complaint (Ireland v. United Kingdom), as has the new court, established since the 1st
November 1998 (Cyprus v. Turkey). The Inter-American system has been able to produce one case (Gallardo Case:
Viviana Galardo and others). The Human Rights Commission under the African Banjul Charter has handled no
inter-states communication.
Europe seems to offer a hybridized version of the state in the human rights context. In the case of Refah
Partisi v. Turkey, the Grand Chamber of the European Court of Human Rights acknowledged democracy as the
relevant constituent element of statehood. The case involved a human rights challenge to the decision of the Turkish
Constitutional Court to have the Refah political party dissolved on the basis that it was a “centre” of activities
contrary to the principles of secularism. The Refah party, among other things, supported a system based on sharia
law. The Grand Chamber reiterated its view that democracy is a fundamental feature of the “European public
order.” It considered that that “there could be no democracy without pluralism” and viewed the state’s role as the
“neutral and impartial organizer of the exercise of various religions, faiths, and beliefs.” Most clearly, the Court said
that the freedoms guaranteed in the convention “cannot deprive the authorities of a State in which an association,
through its activities, jeopardizes that State’s institutions, of the right to protect those institutions.” Human rights
protection then, is subject to the state’s ability to survive as a democratic institution. (Case of Refah Partisi and
others v. Turkey, European Court of Human Rights Grand Chamber, hearing 19 June 2002, Application numbers
41340/98, 41342/98, and 41344/98).
Some compromise between defending democratic society and individual rights is inherent: “no one must be
authorized to rely on the conventions provisions in order to weaken or destroy the ideals or values of a democratic
society.” The argument that a democratic system is entitled to defend itself against political movements that seek to
destroy it (described in the tribunal below as “militant democracy”) is at odds with “pure” international legal
conceptions of state. International law does not precondition whether a state exists on whether it is democratically
ordered. International law, moreover, appears to exhibit little interest in a state’s ability to survive in a particular
constitutional form as was demonstrated in the Waldman v. Ontario decision of the Human Rights Committee. The
differences of approach between the Canadian and Turkish cases might be explained on the basis that the recent
1
Word conference on Human Rights. The Vienna Declaration and program of Action. June 1993. UN, NY, p.8, 11, 14.
«Human Rights», 50-th Anniversary of UN. Documents, N.Y.1995. I agree with some scholars that it is necessary to separate
two groups of Human Rights : first - the Civil and Political freedoms (from the state), second - the economic, social and cultural
rights (to the state). In connection with different natures of these groups, in Europe it was adopted two acts - European
Convention on Human Rights and European Social Charter, accordingly which later was adopted two International Covenants.
2
37
history, size, and success of the Refah Party, and Turkey’s role as a model of a secular Islamic state made the
threats to the state’s very existence more real in the latter case. However, at least in the Tribunal below, the Court
went further and referred explicitly to the European experience of the use by totalitarian movements of democratic
processes to do away with democracy. It presented the German and Italian Constitutions as positive examples of the
principle that to outlaw certain political movements are acceptable, even when there is no immediate threat.
The better view is that the approach taken to statehood by the Grand Chamber in Refah Partisi is quite
distinct from the approach taken by the Human Rights Committee in Waldman v. Ontario. The Grand Chamber
portrayed Europe as a community of shared values and shared history for which secularism and democracy are
central principles. The European Court conceived of rights from within a community of shared values among
individual states: a kind of hybridized version of statehood, situated between the domestic and international legal
conceptions, is operating here. The purpose of this part of the paper is not directly to raise large questions about
cultural relativism or the universalism of human rights but rather to emphasize how important one’s conception of
the state is to the analysis of the content of fundamental norms. The tension between how international law,
domestic law, and the emerging law of Europe paradigmatically conceives of the state is all the more important,
given that international law traditionally. Of course there are more nuanced versions within the international law
tradition.
First of all, my theory of normative order based on the justice of equality in general human rights and
inequality in individual private rights. My opinion is following: “Justice based on two general pillars:
fundamental human rights and legal capacity of each person. Fundamental human rights concerning justice mean
that all persons have equal fundamental human rights. Individual legal capacity concerning justice means that
all persons have equal right to possess unequal private rights. Fundamental human rights and legal capacity in
their entity characterize each person as the subject before the law, which defines their general position in the
society. More broadly legal capacity is a summary expression of those different private (social and economic)
rights, which each person could be possess concerning his/her different interests. In other words legal capacity is
abstract opportunity to possess individual human rights. Legal capacity includes in its own equal right to possess
unequal private (social and economic) rights, because human beings are differed by individual signs such as:
physical and mental strength, manual labor, clearness of purpose, resourcefulness, enterprise and other individual
characteristics concerning to which the law has no ability to equalize the individuals. The law can and make only
one: recognize for all equal chance to satisfy different social, economic, cultural and political interests, in other
words equal capacity to possess unequal private rights. As a result all natural and legal persons are distinguished by
the particular positions in the society, by the different volumes of private rights on different social and economic
benefits. And that is justifiable. In other words inequality in private (social and economic) rights is a condition of
justice. Fundamental Human rights is an objective category, but legal capacity is subjective one. Legal capacity as it
argued S. N. Bratuss, is a “right to rights”. 1
For example, related to the ICESC the State parties recognize that every capable individual has the right to
work, which includes the right to the opportunity to gain his/her living by work, which he/she freely chooses or
accepts. The State parties to the ICESC also recognize the right of everyone to the enjoyment of just and favorable
conditions of work, which includes the right to ensure fair wages and equal remuneration for work of equal value.
Such right is public/private right that is legal capacity, because the realization of the right to the enjoyment of just
and favorable conditions of work equally have workers (public right), but the results of realization of right to ensure
fair wages and equal remuneration for work of equal value always would be unequal, because results are depend on
individual capacities (private right). As long as the individual states (statuses) of private persons in society are
different so far as these states (statuses) are the parts of private normative order, but not positive law.
It is generally known that Rawls analyze justice in the frameworks of diversity of social, political and
economic life of the society. But scientific exploration of social, political and economic aspects of justice is the
subject not legal, but social, political and economical sciences. If we operate by the normative correlation between
human rights of individual and obligation of states concerning justice, Rawls consider a justice as a basis to provide
cooperation in conditions where there are opposing religious, philosophical and moral convictions and this basis is
to be found in the idea of overlapping consensus.
However, if we exactly compare Rawlsian and mine theories, we discover that Rawlsian theory is not strictly
connected with the legal theory of justice, but is linked with the political, economic and social theory of justice,
which define moral obligations of political, economic and social institutions before the principles of justice.
Contrary to J. Rawls I am sure that the justice out of human rights is nothing than ideology because criteria of
justice have multiple aspects, which depends from different political, social, economic and cultural positions of very
different groups of society. Special danger issues from the official authorities, because under the flag of justice
B. Savaneli, 1968, op. cit. p. 11-12. See also: B. Savaneli, 1965, Legal Personality and Legal Capacity, Journal “Soviet Law”,
p. 31. In Georgian.
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historically they excuse any inhuman acts. Any theory of justice, including highly localized once within families,
societies, regional groupings, transnational associations and so on, has to be set in a much broader context, which
prescribes background rules for more localized spheres of justice. Such broader context is the future Code of
Universal Human Rights.
Civilized humankind created the legislative, executive and judiciary powers and separated them not for the
state but for Human Beings. Consequently, for the future of humankind I suggest a possible structure of World
Positive Law. World Positive Law should be stepped organizing (using Kelsen-Merkl’s term - “Stufentheorie”). At
the top of structure has been stationed Code of Universally Recognized Human Rights, to which are not
contradicted regional positive laws, then constitution of each nation state and etc. down to the local. On the global,
regional, national and local levels should be created regional, national and local human rights codes and related
them human rights courts.
It is a deep mistake to consider positive law as decisive factor of conflict prevention and resolution, because
unjust law of legislative power could be factor of conflicts. Important factor of conflict prevention and resolution is
the following formula: “Making just law makes a dry tree green”, as Shota Rustaveli - the famous Georgian
philosopher and poet of the XII Century and one of the founders of Neo-Platonism - proclaimed. More clearly:
“Making just law makes a stagnant society evolutionary”. On the contrary, “Making unjust law makes a green tree
dry”. More clearly: “Making unjust law makes an evolutionary society stagnant.”
More over, although legislative power can make just law but executive power can “make” unjust acts and
much more, judicial power can “make” more unjust acts in both situations from the point of Universally Recognized
Human Rights Law. Accordingly, judicial power, particularly Constitutional Court, can “make” just acts in
direction of correction of unjust laws of legislative power, but legislative power can continue to make unjust law
from the point of Universally Recognized Human Rights Law. Therefore, decisive factor of conflict prevention and
resolution is the Universal Human Rights Law and creation of World Court of Human Rights and Freedoms. So, a
final conclusion in this direction is following: criterion of Just Positive Law and Normative Order is the
Universal Human Rights Law. The Universal Human Rights Law is the ultimate unit of justice.
More than 50 years ago before Rustaveli, Georgian King David the Builder (XI-XII c.c.) in the seminal work
“Canon of Repentance” in the form of lyrical poetry described just court’s decision-making process.
“When on doomsday the Code is opened
And I shall stand to be condemned,
When the ire of the angels shall be roused,
O judge, pass the just sentence as the Lord.
After the blessed rejoice,
The sinners are cast into the flames,
After will began the triumph of justice,
Then have mercy upon me, o Jesus.”
The aim and goal of interaction between positive law and normative order is to achieve supernal normative
order of Humankind. The cosmic vision of Global Order expressed Shota Rustaveli in the following couplet:
“Since deception is the source of whole humankind’s misfortunes,
Why I should betray congenial soul dearer to me then brothers?
Not at all! What avails me knowledge of philosophizing of philosophers?
That’s why, we are taught to be able to join the supernal order of orders.”
Prof. L. Jokhadze proposed the following interpretation of Shota Rustaveli’s epigrammatic concept’s - join
the supernal order of orders - meaning: “(1) mystical joining the Lord posthumously; (2) the road to super
cognition; (3) personification of super nature which prophesies human’s Godly nature; (4) to share super principles
of order; (5) to join in living liturgy partaking God’s Eucharist; (6) to join the cosmic order through organized
behavior and righteous way of earthly life.” 1
I think that if we are not taught to be able to join the supernal order of orders, we will get disorder in the sense
of “paranoid society”, which is described by great Thomas Pynchon in his novel “Gravity of Rainbow”. “If we
look English concise dictionaries we read that paranoia is defined as “mental disorder characterized by
systematized delusions as of grandeur or persecution”. On the “social language” it characterizes society with all
attached vices: 1. any abnormal mental state; 2. mental case; 3. satanic evil power of distraction and degradation; 4.
aimless and false propaganda to “improve” the situation; 5. the atmosphere of fraud and deception created by
officials in the state establishments; 6. injustice, corruption and immorality disguised under the mask of kindness
1
L. Jokhadze, 2000, Intercultural Communication and Didactics of Foreign Word Concepts, in Aktuel Padagogik und
Kulturdidactik, Tbilisi-Stutgart, p. 14. L. Jokhadze, 2008, Literary text as a Stylistic-Conceptual System, Summary in English,
ed. “Khirony”, Tbilisi, in Georgian, p. 219.
39
and nobleness; 7. devaluated virtues of degraded society; 8. an exclamation of surprise or wonder etc. and a
euphemism for God, like Gosh or nonsense that has a kernel of truth; 9. any wrath poured out due fair or just
claim.” 1
Those who study national law find it difficult to accept the notion of the supremacy of Universal Human
Rights Law over internal Constitutional Law, because both are guarantors of Human Rights.2 However, in any case,
all agree that this question can be resolved in the framework of fundamental Human Rights Law. This makes
transnational law modify constitutional order without the direct participation of the people, who are, however, the
sovereign holder of that order; that is, unless Parliaments decide to put a treaty to popular vote, which it should do
out of principle.
For such reasons, individual rights today pre-exist the Constitution, Laws, Judgments, Governmental
regulations, and etc. These normative acts can regulate individual rights by setting their scopes and limits; but even
if no normative acts were promulgated, individual rights would nevertheless exist by dint of the Constitution’s
dominion the European Convention on Human Rights and other international human rights agreements foreseen in
subsection of Article 7 of the Georgian Constitution. In this sense of Article 7 of the Georgian Constitution is fully
compatible with the European Convention on Human Rights and other international human rights agreements.
However the Article 6 of the Georgian Constitution states that if International Treaties are not compatible with the
Georgian Constitution, Georgian Constitution is in force. On the other side, when a law ratifies a treaty, is
establishes legal rules that exclusively refer to individual human beings. As such, there is no excuse to content that
ratification is valid only as against other States and not against one’s own, because the ratification law turns those
resolutions into internal legal rules.3 That is indubitable. We should highlight those international treaties, no matter
if they are human rights treaties or treaties of integration, by their nature limit the internal and external power of the
State. Consequently, treaties normally do not infringe upon individual rights as against the State.
Getting back to the Convention on Human Rights, in enumerates important individual guaranties and public
liberties, which is an advance over the previous state of legislation of the Party States. Furthermore, the Convention
defines various Fundamental Rights more extensively that, for example, the Georgian Constitution. In the sense, it
has a practical importance in its normative purpose to materially increase the scope of freedom and the sphere of
Fundamental rights.
The question arises: why transnational? Is it not the Constitution the first and most important in the pyramid
of Positive Law?
In this way, the Convention and other transnational rules have a double character that implicate national
authorities to apply them, without prejudice to the way in which the transnational legal authorities would apply
them, as the case may be. It becomes clear that all contrary, pre-existing rules have automatically ceased to be
effective, and that all previous legislative rules that directly or indirectly opposed these other rules have either been
immediately repealed or become devoid of effectiveness as a function of subsequent legislation. An interpretation
that were to contend that these transnational pacts were unsusceptible to direct application by judges and not
actionable by individuals would make a mockery of the legal order and of liberties and public guaranties. While it is
true there have been in the past doctrines and judgments that inexplicably supported the inoperative character of the
Convention, those were the first times the Pact was applies and just after democracy had returned.
As regards the Convention, the signatory States have agreed ipso jure to “guarantee its free and full exercise”
through jurisdictional guardianship and direct application of its provisions and principles. These responsibilities
must be carried out without prejudice to the States’ obligation to instrument them internally with complementary
mechanisms, without, meanwhile, denying them power and direct and immediate application. Judges must directly
apply the Convention, as with any other constitutional matter. The Convention and the rest of the acts of
transnational law obviously eliminate the internal power of each country or government as being unconditional and
unlimited. The price of being part of the international community is recognizing, internally, the respect the
community gives to its norms. Even countries that have enough power to pretend to isolate themselves from the
world end up, admitting that they are not really interested in doing so. The characteristics that we explained
regarding transnational law within the Constitution as superior to internal law are applicable to the rules of the
L. Jokhadze, 2010, Social Entropy for Thomas Pynchon’s Literary Criticism, in Journal for Phenomenological Inquiry, ed.
Council for Research in Values and Philosophy, Cardinal Station, Washington DG, 2006, p. 17. See also: Bizina Savaneli, 2008,
How to do rules with things. International Conference Proceedings, ed., Technical University of Georgia, Tbilisi, p.p. 218-223,
in English.
2 R. Zaffaroni, The American Convention on Human Rights and the criminal system, Revista de Derecho Publico, 2:61, Buenos
Aires, FDA, 1987, points out that the constitutional rules “can only be interpreted, in the future, in the sense compatible with the
text of the convention”, even though “it seems to be about consequences that could have also been deduced from a correct an d
guarantying exegesis of our constitutional precepts”.
3 L. Lilich, B. Richard, F. Newman, 1979. International Human Rights, Boston, Little, Brown and Co. T. Buerganthal,
International Human Rights, Minnesota, West Publishing Company, 1988 and its references.
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Convention as well. Regardless, many authors and interpreters refuse to consider it as transnational law. Perhaps,
though, these are the ones that were already refusing to consider it internal law, or just plain law before the
constitutional amendment.
In this respect the problem is not connected with dialogue between two cultural traditions of law within
European Union: Positivism and Anthroplogism. If anthropologists of law really wish to establish intercultural
dialogue, they must be doing it first of all through establishing dialogue between two cultural traditions of law
within European Union: Positivism and Sociologism. Their junction must be Human Being. Only after that we
could be start a dialogue between continental European and Anglo-American perspectives on legal anthropology.
And we should be vary cautions in translating French concepts into English as they certainly refer to realities that
do not exist in the same meaning in the common law systems.
The outcome of such junction would be serve elaboration of new normative model for the rest world. That is
not only pure legal problem but has significant role for the survival of European Civilization and Civilization in
globe. That is non-ethnocentric science of law.
Exclusive way out of such dangerous situation is following. A Hierarchy of norms in the World Legal System
has to issue from Universal Human Rights as the peak of the pyramid (Grundnorm) of World law and order.
Excessive passion for “Universalization” (excepting Human Rights) is as dangerous as excessive passion with
endlessly fragmentation (except the rule of law-state). The method must be based on the exploration of the
correlation among “a pluralist approaches to positive law” (legal families) and “a pluralist approaches to normative
orders” (inside legal families). I base my study on the well worked out normative methods of synthesis and analysis
and present this process in a pyramidal chart where normative variants are step by step concentrated on multihierarchical levels using Kelsen-Merkl’s model. Each stage should be a theoretical rethinking of the above
mentioned “approaches” and the elaboration of recommendations towards their rapprochement. In other words,
these variants interact and strive to make more complete decision in every phase to gain access to the top of the
pyramid, which is the stratum of effect to form a final normative concept – new sense of law. In this sense,
constitutions are not the first and most important law in the pyramid of legal sources. The first and most important
law in the pyramid of legal sources is the International Covenants on Economic, Social, Cultural, Civil and Political
Rights. In this way, the International Covenants as supranational rules have double character, which implicate
national authorities to apply them without prejudice to the way in which the supranational legal authority would
apply them, without denying them power and direct and immediate application. Even in the absence of parliament’s
law, judges must directly apply the Covenants, as with any other constitutional matter. It is well-known that the
great Radbruch addresses the philosophical implications of this when he teaches that there is right above the law
and, for this reason, that a given “law” can be “unlawful”.
"I have," H. Laski urged, "rights which are inherent in me as a member of society; and I judge the state, as the
fundamental instrument of society, by the manner in which it seeks to secure for me the substance of those rights....
Rights, in this sense, are the groundwork of the state. They are the quality, which gives to the exercise of its power a
moral penumbra. And they are natural rights in the sense that they are necessary to the good life." Laski believes
that a creative view of politics begins in a proper theory of rights. He outlines a functional theory whereby the
individual as a person has rights, which the state does not create but must recognize in order that the individual may
realize his best self. Among the inherent rights of the individual which it is the duty of the state to preserve and
protect, he enumerates the right to work, the right to be paid an adequate wage, and to have reasonable hours of
work, the right to an education, and the right to participate in the functions of government. 1
I am not a classical Natural Lawyer as well as a classical Positivist. I have simply argued that acceptability of
the Universal Human Rights standards content is a precondition of a norm's legality. My idea that all law must
necessarily pass a kind of a Human Rights filter before it can be accepted as proper law. Constitutive meaning of
human rights should be based on the Pure Theory of Law through institutionalization of human rights in the mode
of “Stufentheorie”. Institutionalization of human rights is a precondition for an intercultural area of freedom,
security and justice.
Human Rights gave the birth not only to the new field of international relations among states regulated by the
International Law of Human Rights, but also to the new legal relations among states and individuals regulated by
the International Human Rights Law. International Law of Human Rights and International Human Rights Law
entail Universal Human Rights Law. In other words, each state-party is responsible to other state-parties, and at the
same time, to the each individual. In this sense, Universal Human Rights Law could be named as “Two-faced
Jahnis”.
Permanent and cyclical interaction between legal system and normative orderings, and permanent and cyclical
inter-transition of legal system and normative orderings in glob have a trend to comprehend a sense of law. The aim
1
H. Laski, 1925, A Grammar of Politics, New Haven, p. p. 39, 40.
41
and goal of such interaction and transition is to achieve sustainable development of Humankind”. 2 The most
significant argument for the recognition of distinction of Legal System and Normative orderings might be serve the
article 28 of the Universal Declaration of Human Rights, which entitles "Everyone to the right on the
International Order in which rights and freedoms set forth in the Declaration can be fully recognized". The
right to the International Order is a new Natural Human Right.
This situation demand that solutions need to be found to solve the problems that threaten ordinary man’s well
being more, than states’ well being. Individual, not a state, is the Universal Person of Law.
Universal Human Rights should be the sense and spirit of any Positive Law and Normative Order. In
such sense the Universal Human Rights Law should be a pick of Pyramid of the Positive World Law, which is
based on the Natural Human Rights, and which oblige the member-states, particularly in the light of necessity of
reconstruction of UN’s functions in peacekeeping operation in transition period for the World. In that sense it is
necessary to abolish Security Council of UN, because three permanent members of Council are permanent
aggressors in the world. In the modern “globalistics” it is ascertained that today the world is in such a complicate
situation that we haven’t the possibility of use of one system or other of values, ideology or culture as a model in
order to preserve its existence.
In my opinion Universal Human Rights Theory of Law as the result of convergence of Sociology of law,
Natural and Pure theories of Law will have a large and dominant part in the development of whole branches of
modern law, as for example, in the efforts of legislatures and courts to restrict unfair methods of competition and
unfair restraints of trade. In short I am talking about of substitution morality by Code of Universal Human Rights
Law. Based on the Universal Human Rights Law, mutual transition of single positive law and plural normative
order is a sustainable upward spiral process, which leads to evolution in the quality of life of nation-countries and
the world in whole.
Therefore, I suggest a spirally, evolutionary and endlessly sustainable developing theory of interaction
and mutual-transition of Positive Law and Normative Order in global, regional, national and local levels.
Permanent and spirally mutual transition of between positive law and normative order on the local, national,
regional and global levels presents a trend to comprehend permanently an idea of Just Law, which must be based
on the Universal Human Rights. In short my theory could be named as “Dialectical Jurisprudence”.
Therefore, pluralist approach also means a scientific and legislative exploration of the diversity of normative
orders. But that is only the start. The task of such exploration is to discover common and distinctive elements
among positive law and the normative order, and then the elaboration of “consensus laws” and ways of
rapprochement through “an intercultural approach to law and order” based on the universal human rights.
My scientific position could be help to fulfill three complimentary and mutually supportive functions:
1. A conservation function – to the conservation of just practice of functioning of public and private orders
based on the universal human rights law.
2. A development function – scientific and legislative exploration of normative order and identification of
progressive tendencies, which are socio-culturally and politico-economically arguably based on the universal
human rights law.
3. A logistic function – to provide support for monitoring, education, training, and information exchange
related to the local, national, regional and global issues of conservation and development.
Another real problem is following. Highest unmoral first of all is the fact that human being is the only
creature that is producing inorganic rubbish. However everyone is entitled to a sustainable environment, in which
the Rights and Freedoms set forth in the Bill of Universal Human Rights could be fully realized. The religious
dogma of mankind’s ascendancy over the nature was instilled into human mode of life as the directing norm of their
activity, and it has directed humanity to ecological catastrophe.
The human being is bifurcated. On the one hand, he feels the evident advantage in comparison with all beings
or events known by him, on the other hand, during the process of becoming acquainted with surrounding nature, he
becomes sure that he is infinite and in-cognizable, and the more he encroaches deeply upon the essence of the
events (phenomena) of universe the more is he seized with the feeling of vainness. Besides these, the unlimited free
will in 20th century has leaded the humanity to the brink of planet catastrophe twice. At the beginning of this
century the global ecological crisis was added to more dangerous situation, and this crisis grows deeper and deeper
progressively. The free will has transformed into global self-will!
One of the universally recognized mean to way out from above-mentioned dangerous situation is the
peremptory subordination of Governments to the human rights and freedoms of mankind recognized everywhere
what implies the global “ecologization” of the thought and mode of life of the humanity. Since beyond the orthodox
2
B. Savaneli, Interaction between Legal System and Normative Orders from the point of view of comprehension of sense of
Law. Doctoral Dissertation Essays. Tbilisi, 1992. This work is subsequent development of Reinach-Naneishvili’s conception
about normative facts.
42
politics there are many hopeful symptoms of break-throw in this direction but the reality givens us the grounds to
make only insecure prognosis. One of the reasons of unprecedented Tsunami (2004, 2011) and floods (2010-2011)
is uncontrolled and global output of oil other un-renewable natural resources. Energetically our planetary ecosystem
is an open and dynamic system. There is a rather delicate balance between incoming solar energy, internal energy
from radioactive Decay, and radiated "blackbody" energy. There exists a balance because ecosystem processes are
organized cyclically and the non-entropic processes in them are indissoluble with energy degradation. At the same
time, the system isn't static, it is dynamic in spiraled sense, as long as the forces creating the equilibrium are
entrained themselves into the stream of changes, so that the natural search for equilibrium is accompanied by
deviations from it because of the participation of oppositional forces in the transactions. The infinite natural
combination of forces leading to equilibrium and of such deflecting from it is the very moving force of the
evolution process. Renewable energy is regarded more and more as a profitable and rational investment in light of
dramatic and continuing reductions in capital costs, reliability improvements, the volatility of fossil fuel prices, and
the environmental compliance costs of generating electricity from fossil and nuclear fuel sources.
If we sincerely want to solve the global environmental crisis, we must make a revolutionary break and
establish new, Earth - amenable legal and social institutions oriented on Daylight-power generation. Actually it
means a global substitution of very expensive and dangerous exploitation of Earth’s un-renewable resources by
using at the beginning of inexpensive and safety Day-light, including Solar and Wind, energy, as a stable guarantee
of the sustainable development of humankind. Above mentioned should be spiral evolutionary and endlessly
process of civilization. This will certainly necessitate a fundamental change in philosophy, beliefs, norms, values
and lifestyle for many people based on the doctrine of Saint Francisco d'Assisi, find common propositions in
fundamental religious systems and act in concert towards the creation of new and united ENVIRONMENTAL
RELIGION, because the God is one and unique for all Nations!
I am sure that one of the practical mean to way out from above-mentioned dangerous situations is the
“aphroditization” of men’s mind, or the “hermaphroditization” of the whole society. In the works of Aristotle,
Aquanaut, Rustaveli and Dante there is developed the consideration that the harmonious consensus of manhood and
womanhood is the necessary condition for making the picture of reality without distortion, what creates the grounds
for the adequate behavior of human being and excludes the social catastrophes. In the works of famous scholars of
20th century, especially – in fundamental investigations of K. Stern, there is argued with sufficient depth that in the
thought of Dante, Shakespeare and Goethe, also – of several well-known persons from the newest history, we can
find the ideal harmony of the two trends. Woman isn’t the surrogate of man, but patriarchal way of worldwide
thinking and mode of life allege the opposite statement. However the history of Civilization numbers only about
some millenniums, while the history of Humankind - many billions. During the history of humankind have been
established stereotype of man as a hunter i.e. killer, and stereotype of woman as a family person i.e. thoughtful. A
new way is the way of establishing prudence and moderation in public and private life.
Theory of “Comparative Normative Order” is an important one to be heard for the aim to map out alternative
to the present approaches to the “Comparative Law” and “Rule of Law”, which seem less and less satisfying. My
scientific position warns us never to absolute any theory of law. It gives us the universal key to open the wide door
in real world, which could be equally acceptable for different cultures.
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VII. S u m m a r y
The fact is that almost all post-modern scientists in legal theory entirely alienated from substance of
law and legal rights and obligations, and flitted to philosophy, anthropology, hermeneutics, sociology,
ethnology, economics, and more over in geography and etc. They attempt to analyze the juridical notions
and categories through the above mentioned spheres of science, while no one are not specialized in
appropriate fields, and they made their way to width but not to depth. They disembowel law from law. In
jurisprudence came a smell of dampness without perspective of light to the end of dark subway. And as a
result societies really remained without law and people without human rights. Societies and people
remained in “stark naked”. On the planet is raging tornado of amorphous and inadequate rules of politics
without any borders of rule of law. Globalization of such politics globally turned human being into slave
without visible fetters.
Therefore we the people of the world need a New Human Philosophy of Law under the auspice of
Universal Human Rights, which links the East and West, North and South, ethics and religions, public
and private life, technologies and environmental protection, and the myriad problems, which have never
been exist in the history of mankind in widespread aspect.
Based on Human Rights Law values the paper tries to show the methodological perspectives that
can evoke us to establish the common elements of different cultures and ways of harmonizing them for the
purpose of retrieving human freedom and human creativity as the basis of sustainable development of
humankind and building of equal peace on the Planet.
I. The positive law exposes how ought to act legal persons. Positive law is an entity of “ideal”
legal rules, which regulate potential civil, political, economic, social and cultural relations among persons
in abstracto through the recognition, separation and/or protection of mutual rights and obligations by the
application of judicial force in case of their violation. Public Law and Private Law are the two branches of
Positive law. Public Law regulates potential public relations between public persons. Private Law
regulates potential private relations between private persons. Public Law and Private Law have fields of
junction. Positive law includes a cross-sectional field, which reflects a result of some congruence of public
law and private law. Positive law has a vertical character. Legal theory refers to phenomena of positive
law.
The Normative Order is 1) the established and stabled order or practice of realization of abstract
legal acts by public bodies that particularly and concretely regulate real interpersonal relations through the
official distribution mutual rights and obligations among the individual participants of normative relations;
and 2) the established and stabled order or practice of realization of free individual wills of private persons
that particularly and concretely regulate real interpersonal relations through the unofficial distribution and
realization of mutual rights and obligation among the individual participants of normative relations, and 3)
the established and stabled order or practice of realization of abstract legal acts by the just judiciary
through the application of legal force that particularly and concretely regulate real interpersonal relations
among the individual participants of normative relations in a case of violations of mutual rights and
obligations.
The normative order censors how public bodies favor to the observation of human rights and
freedoms and how private persons favor to the observation of mutual rights and obligations.
II. Notion of normative order based on the philosophical thesis that there are “multiple realities”.
The normative order is an entity of “real” individual legal acts of public bodies and normative acts of
private persons, who regulate civil, political, economic, social and cultural relations among public and/or
private persons in concreto through the recognition, separation and/or protection of mutual rights and
obligations by the application of judicial force in case of their violation.
The normative order includes also a cross-sectional field, which reflects the coexistence of the
feasibility of individual legal acts and normative facts. The normative order has a horizontal character.
Individual normative acts of public bodies constitute the legal order as part of normative order, and they
clearly show the real state of public and private relations in society. The legal order can be directly
described, because it has documentary forms, is transparent and easily accessible. The analysis of the legal
44
order is not problematic for legislator. The legal order is an official form of the normative order.
Normative facts constitute the non-legal order, which shows the real state of private relations in the
society.
Individual normative acts of private persons constitute the non-legal order as part of normative
order, and they do not clearly show the real state of public and private relations in society. Non-legal
order can’t be directly described, because mainly it has no documentary forms, is latent and often difficult
to access. It needs scientific investigation and exploration. Non-legal order relates to the category of “nonstate law”. “Non-state law” is an unofficial form of normative order. At the same time, the theory of nonlegal order is an important step not only in the direction of “realism” but also away from the idea that the
state has a monopoly of law-creation. 1
III. I distinguish positive law at the global, regional, national and local levels, and normative order
at such levels.
Positive law on the global level refers to International Human Rights Law, Environmental Law,
Public International Law, Humanitarian Law, Private International Law, Trade Law, Trans-national Law,
Regional Law, Inter-Communal Law etc., worldwide. Positive law on the local level refers to the single
legal system of each state, which should be compatible with the International Human Rights Law,
Environmental Law, Public International Law, Humanitarian Law, Private International Law, Trade Law,
Transnational Law, Inter-communal Law etc.
Normative order on the global level refers to the state of realization of International Human Rights
Law, Environmental Law, Public International Law, Humanitarian Law, Private International Law, Trade
Law, Trans-national Law, Regional Law, Inter-Communal Law etc., which form legal orders and a large
space of non-legal orders in worldwide. Normative order on the local level refers to the state of realization
of Universal Human Rights Law, Environmental Law, Public International Law, Humanitarian Law,
Private International Law, Trade Law, Trans-national Law, Regional Law, Inter-communal Law and etc.,
which form legal and non-legal orders within each country’s boundaries. Description and analyze of
normative order from the global to the local levels along with description and analyze of single positive
law from the global to the local levels give us an opportunity to describe and analyze normative systems at
the all levels of each country and the world in whole.
IV. One of the most fundamental distinctions in legal theory is the interaction between and mutual
transition "the theory of positive law" and "the theory of normative order". The core idea of distinction
between the theory of positive law and the theory of normative order is simply: the theory of positive law
seeks to explain what the law is, in other words, what the law claims, whereas theory of normative order
tell us what the positive law ought to be, in other words, what the law should be claim. If we use the
great J. Bentham’s terms, from my point of view: the positive law is the subject of explanatory
jurisprudence, while the normative order is the subject of censorial jurisprudence.
A bridge between what the law claims and what the law should be claim is a space of idea of law.
Exploration of legal order in the framework of the normative order gives us an opportunity to assess how
the positive law (sollen) is implemented in practice (sein). In the process of exploration of the legal order
in the framework of normative order an idea of law arises, in other words, arise the claim to change
positive law from the point of view of the Just Law.
In philosophical terms, mutual transition, spiral and evolutionary development of positive law and
normative order is based on the “principle of causality through freedom”, but not “principle of causality of
the nature”.
V. I suggest a spirally, evolutionary and endlessly developing of theory of interaction and
mutual-transition of Positive Law and Normative Order on the global, regional, national and local
levels. Permanent, spirally and evolutionary interaction between positive law and normative order at the
local, national and global levels present a trend to comprehend permanently an idea of Just Law, which
should be based on Universal Human Rights, because: “To make just law, makes a dry tree green”, as
“Normative pluralism is generally marginalized and viewed with skepticism in legal discourse. Perhaps the main reason for this
is that over 200 years western legal theory has been dominated by conceptions of law that tend to the monist (one internally
coherent legal system), static (the state has monopoly of law within its territory), and positivist (what is not created or recognized
as law by the state)”. See W. Twining, op. cit. p. 232.
1
45
Shota Rustaveli - the famous Georgian philosopher and poet of the XII Century and one of the founders of
Neo-Platonism - proclaimed. The aim and goal of interaction between positive law and normative order is
to achieve just normative order of Humankind. The moral foundation of Global Order related to “join
supernal order of orders” expressed by great Shota Rustaveli.
In short, my theory could be named as “Dialectical Jurisprudence”.
My theory about mutual transition, spiral and evolutionary development of positive law and
normative order taking off any contradiction between them and making possible peacefully coexistence of
positivism and sociologic directions in jurisprudence, and creating balance between public law and private
law on the global, regional, national and local levels.
VI. The “legal families” theory of Comparative Law ignores the phenomenon of the normative
order, because it does not explore and compare normative orders of different countries, which are in the
same “legal family”. Almost all scientists operating in comparative law and legal theory ignore any role of
practice of individual normative acts of public bodies and private persons in formation of normative order.
However, the state and certain combination of practice of individual normative acts of public bodies and
private persons construct individual face of normative order of the country, which is always different of
other countries, disregard that both could be even entered in the same legal family, whether Germanic,
Romanist, Common Law, Islamic, Post-Soviet, Far Eastern legal families. So it is necessary to introduce a
new branch of legal science: Comparative Normative Orders Study, which at the beginning should not
be investigating in the framework of Comparative Law Study. In this sense I put forward an idea of
practical jurisprudence.
Comparative Law is the part of Comparative Jurisprudence. Another part of Comparative
Jurisprudence is the Comparative Normative Order.
VII. My core argument is that the post-modernity is in crisis. It has exhausted its political potential
and is in process of being replaced by a new post-positivist paradigm, which could be built on the
emancipator possibilities of the Rule of Just Law based on the Universal of Human Rights. 1
Particularly, in the modern “globalistics” it is ascertained that today the world is in such a
complicate situation that we haven’t the possibility of use of one some system or other of values, ideology
or culture as a model in order to preserve its existence. The first step that the humanity has to do, is the
integration of basic religious trends, because the God is one and unique. We consider as acceptable this
trend, even to act in concert towards the creation of new and united environmental religion. Actually it
means a global substitution of very expensive and dangerous exploitation of Earth’s un-renewable
resources by using of inexpensive and safety Day-light (including Solar and Wind) energy, as a stable
guarantee for the sustainable development of humankind. 2
1
Bidzina Savaneli, 2003, Jus Cogens Character of International Human Rights Law, Philosophy and Legal Theory for 21 st
Century, ed. David Agmashenebeli University of Georgia, Tbilisi, in English. (This work is dedicated to the Memory of Giant of
Law and International Law – Hans Kelsen).
2
Fundamental tenets of my theory see B. Savaneli: Correlation between Universal Human Rights and Legal Capacity of
Citizens, Candidate’s Dissertation Essays, ed. Moscow State University, 1969, Moscow, in Russian. Positive Law and Normative
Order, 1977, Tbilisi, in Georgian. Normative Order as a self-governing and evolutionary system, 1978, Tbilisi, in Georgian.
Normative Force of Judicial Practice 1979, Tbilisi, in Georgian. Normative Order and Judicial Practice, 1981, Tbilisi, in Russian.
Sense of Law and Law in the Action, 1990 Tbilisi, in Georgian. Evolutionary Interaction between Positive Law and Normative
Order from the Point of View of Comprehension of Sense of Law. Doctoral Dissertation Essays, 1992, Tbilisi, in Georgian and
Russian. A Structure of Normative order, in Manual: “Modern Theory of Law”, ed. Technical State University of Georgia, 2004,
Tbilisi, p. 219-239, in Georgian. Co-existence of Single Positive Law and Plural Normative Order, The Journal Jurisprudence,
April 2010, volume six, trinity term, published in USA, Charleston, SC, p. 247-258, in English. (All attributes of above
mentioned works more exactly see in the text.).
Instead of review: "Dear Professor Savaneli, Thank you very much for your summary about "The Theory of Spirally and
Endlessly Development of Mutual-Transition of Positive Law and Normative Order. We are glad that there is so active academic
researcher on legal theory like you in Georgia. Yours sincerely, Dr. Klaus Zeleny, Hans Kelsen’s Institute, Vienna, Austria, Thu,
October 8, 2009, 1:56:29 PM 20.02.08”.
46
RE: For publishing as a book or article [pf Case: 1628305, pfTicket:10885635]
2:33 PM
Reply
Bizina Savaneli
To [email protected]
Subject: Re: For publishing as book or article [pfCase:1628305, pfTicket:10885635]
Date: Thu, 28 Apr 2011 10:59:10 +0100
To: [email protected]
Dear Professor Bizina Savaneli,
We are delighted that you wish to republish your article. The publishers of the Journal Jurisprudence, the
Elias Clark Group, and myself have no issues with you doing so. I'm sure Dr Engle will be quite pleased also.
Best of luck with it.
Kind Regards,
Aron D'Souza
Aron Ping D'Souza
Editor, The Journal Jurisprudence
Email: [email protected]
Website: www.jurisprudence.com.au
UK Phone: +44 77 1937 5555
USA Phone: +1 216 539 9885
Fax: +61 3 8080 6612
On 27/04/2011, at 10:51 AM, Bizina Savaneli wrote:
To the editor of “The Journal Jurisprudence”
Mr Aron Ping D’Souza
_________________________________________________________________
On 27/04/2011, at 10:51 AM, Bizina Savaneli wrote:
To the editor of “The Journal Jurisprudence”
Mr Aron Ping D’Souza
Dear Mr Aron,
I would like to publish the full text of my work, a part of which as article was published in “The Journal
Jurisprudence”, Volume Six, Trinity Term, April 2010, p.p. 247 – 257.
I am sure I can do it by kind permission of you and publisher because the article has been more modified and
slightly expended version.
In order of argument I send you a copy of my work.
Thank you beforehand.
Yours sincerely,
Visiting Professor in Law and Human Rights at the St. Grigol Peradze University,
Jur. Dr. Ph. Dr. Mr. Bizina Savaneli
47
Geneva
Founding Member of International Society for the Philosophy of Human Rights (USA)
______________________________________________________________________________________________________
”An Active Member of the New York Academy of Sciences Prof. Dr. B. Savaneli is a authority
of the Philosophy of Law and founder of the International Human Rights Education in Georgia. He
published ”Universal Human Rights Law”, the first Manual in the history of Georgia.”
Excerpt from Update, New York Academy of Sciences Magazine, March 2003.
Hans Kelsen-Institut
Thu, October 8, 2009 1:56:29 PM
Dear Professor Savaneli!
Thank you very much for your summary about "Spirally and Endlessly Development of MutualTransition of Positive Law and Normative Orders Based on Hans Kelsen's Pure Theory of Law".
We are glad that there is so active academic researcher on legal theory like you in Georgia!
Yours sincerely
Dr. Klaus Zeleny (Secretary)
Inline Attachment Follows: kelsen_staatsrecht.vcf begin:vcard adr;quoted-printable;quotedprintable:;;Gymnasiumstra=C3=9Fe 79;Wien;;1190;=C3=96sterreich
email;internet:[email protected], url:www.univie.ac.at/staatsrecht-kelsen
tel;work:+43 1 369 55 34
tel;fax:+43 1 368 09 69
48
Contact Details:
Bizina Savaneli
Name
Organization/Institute Visiting Professor of Department of Law at the St. Grigol Peradze
incredible University
4 Politkovskaia str, Tbilisi, 0184, Georgia
Address
2 Shatberashvili, Tbilisi, 0179, Georgia (Home)
[email protected] / [email protected]
e-mail
+7 995-32- 187 107 (University), +7 995-32- 233 316 (Home)
Telephone
Google/ Bizina or Bidzina Savaneli
More Info
+7 952 899 191 279 or +7 868 08 22 15
Mobile phone
49