DR. MIRO CERAR
IV. THE STATIC AND DYNAMIC NATURE OF MODERN LAW
Goethe once said “all periods that regress and decay are subjective, while periods of progress have an objective orientation.”21 While it is true that this oscillatory and dualistic perception of the world does generally accompany human development, this or any other bipolarity is, in the holistic sense, merely illusory. In the creation and study of the law, it is always necessary to rise somewhat above the current time and space to see social fluctuations as only a reflection of a general law of relativity which pervades the human world. In this case, it is not a matter of emphasizing the conservative nature of the law mentioned earlier, but emphasizing the requirement for the law to have a stabilizing function that does not allow the law to succumb to excessive one-sidedness, for instance, being excessively programmatic. However, this can only be achieved by establishing an appropriate balance between the static and dynamic aspects of the law.
The static aspect of the law is an expression of the illusory idea of an objectively definable legal substance. The dynamic aspect is an expression of an understanding of the socially and otherwise conditioned dynamics of legal development. The illusion of a static aspect is created by the rational form of the legal substance in which, under the influence of irrational factors (such as intuition, emotions, and will), the developmental nature of a rational approach is consciously restricted.
Translated, this means that while the mind still recognizes different or opposing possibilities from those laid down in the legal acts, it nevertheless remains “fixed” on the substance contained in the legal acts. At the same time, irrational factors can create within the individual a psychological feeling that this substance forms a homogenous unit, which can only be comprehended in a single correct manner. In this case, the mind is of course actually “fixed” only within the legal sphere, because on extra-legal levels it can oppose the legal substance through various theses, antitheses, etc. On the other hand, we have an idea of the
rationally dynamic aspect of the law. This is an irrationally conditioned expression of “liberated reason,” which in its discriminating capacity internally divides legal concepts into many different sub-concepts, thereby destroying any possibility of comprehending an individual legal norm or institution as a substantive unity. In this extreme, we are confronted with an infinite dispersion or an infinite pluralism of the legal substance, which upon rational reflection enables unlimited diversity in
the empirical social sphere to which the law relates.
At the level of legal discourse, these two aspects represent the difference between the idea of the scientific nature and the contingency nature of the law. These constitute a dualism between the “objective”, on the one hand, and the “coincidental,” the “optional,” the “selective,” etc., on the other. Both aspects are one-sided and as such imperfect since they are merely parts of a holistic whole. But because man cannot think in terms of unities or wholes, in the law a suitable equilibrium or proportion at
least has to be ensured and the degree of complementariness between the static and dynamic aspects of the law and legal acts optimized.22 It is necessary to rationally maintain the idea of an autonomous and objective law, and, on the other hand, maintain the idea of pluralism in the content of the law, where within the framework of the same legal institute various contents are more or less equal in value. This position constitutes a sort of equilibrium between the idea of the scientific nature of the law, supported mainly by modern formalism and objectivism (conceptualism), and the anti-necessitarian approaches to the law, on the other hand, which are expressed in the idea of contingency.23 It should be remembered in general that the law is a specific combination of the legal idea and the sociaUlegal practice, which we can never authentically and definitively express in the form of a definition. Kant’s proposition that lawyers still seek their own notion of the law remains eternally relevant.
We can summarize all of this in the following manner: to an extent, the selection and definition applied in framing a law has a certain unchangeable substance, but to a certain degree this abstract or general substance is changeable. In the integral irrationaUrational sense, the assertion that part of the law is, at least for a certain period of time, unchangeable, is fictitious because a concrete definition of the legal substance even in this regard is always relative or subjective. This fiction is vital for the law as it maintains a certain degree of legal predictability, reliability and trust in legal certainty and prevents excessive legal
relativism or skepticism.24 Although it may seem paradoxical, the fiction of the objectiveness of the law needs to be maintained to a certain measure. This does not mean that in general, we agree with a pragmatic ontology (such as that of Dewey), for on the internal personal level the lawyer, as Radbruch said, “must always be aware of the questionable nature of his profession.” Because each era must write its legal science anew,”25 the fiction of a “correct law” is only temporary in nature.
Nevertheless it is vital because without it every decision made in law and also in general would be entirely uncertain and therefore untenable. If we summarize these findings in the light of determination, interpretation and application of the law, we see that the law is, on one hand, determined (static), but on the other hand determinable (dynamic). Between these two legal aspects there must exist a general equilibrium because excessive dominance of the first aspect would mean that the law
would be, in the normative sense, completely rigid and socially nonfunctional, while excessive use of the second aspect would lead to the complete relativization and dissipation of the legal substance and would permit and legitimize legal arbitrariness.