Law as Equal Measure of Freedom

Law as Equal Measure of Freedom

The interpretation of law proposed by Nersesiants merits particular attention, as it stands out as the most distinctive and exact when compared to the positions advanced in scholarly literature during the 1980s and 1990s.

Across his writings, Nersesiants put forward two definitions that he considered to complement one another. The first characterizes jus as an "objectively conditioned requirement of the justness of the general measure (forms, norms) of freedom and equality having a socio-class character." The second defines lex (jus in the form of lex) as an "official (State-power expressing State will of the dominant class of a formally-determined and generally binding normative) expression and establishment of jus endowed with legal force."

Nersesiants conceded that jus emerges prior to its formalization in lex; that lex merely confers legal force upon jus; and that the divergence between the objective process of jus formation and the conscious-volitional process of its official recognition gives rise to tensions between jus and lex. He employed the notion of formal equality to demonstrate that jus acknowledged formal equality, which in turn allowed it to become a vital form of being. In this way, jus itself regulates distinctions among people on equal terms and through an equal measure.

Nersesiants sought to merge two distinct perspectives: one rooted in natural law, the other in positivist legal thought. The second definition materially enriches, develops, and refines the first, and together they capture the core of the general concept of law as a historically evolving, objectively conditioned, socio-class-determined, just, and general measure of freedom and equality, realized through the official expression of universally binding force.

In his later work, Nersesiants abandoned the class-based approach, redefining jus as a universally binding form of equality, freedom, and justness.

For the purposes of our inquiry, Nersesiants' ideas on equality are especially relevant, particularly his observation that the manifestation of equality assumes specific historical forms and that equality neither eliminates nor can eliminate the real differences among individuals.

It is also worth noting that views akin to those of Nersesiants—particularly regarding jus as a measure of freedom and equality—were fairly common in prerevolutionary Russia. The religious thinker and legal theorist V. Solovev observed that the notions of the individual, freedom, and equality constitute the essence of so-called natural law. The individual, because only a person can be a subject of law. Freedom is a defining trait of the individual, who possesses an inherent and unalterable capacity for absolute resistance—not as a mere choice between opposites (libertum arbitrium indifferentiae), but as a firm and enduring attribute of any substance. Thus, freedom appears as a demand for autonomy. Finally, equality—as the requirement to recognize for others the same freedom in principle.

Solovev described the interplay of these elements in the following manner: «But freedom, in and of itself, is the property of a person taken individually that does not form law; because here freedom is manifested only externally, as the actual appurtenance of the person coinciding with this power. Left to myself, I freely act within the limits of my power: there can be no mention of law. There is also no law when my action collides with the free action of another because the matter is resolved by the rebalancing of power. But if I as a manifestation of my freedom limit or condition by recognition for another of the same freedom in principle or I acknowledge this for the same person as I myself, by such recognition I make my freedom obligatory for him and transform this into my right. This relation has a universal character by virtue of the universal significance of the individual: every man is a person and, consequently, freedom in principle must be recognized for all identically. Thus, my freedom, as a right and not force depends directly upon recognition of an equal right for all others. Hence we receive the basic definition of a right: a right is freedom conditioned by equality. In this definition of a right, the individualistic principle of freedom is inextricably linked by society with the principle of equality, and, one may say, that a right is nothing more than the synthesis of freedom and equality. The concepts of the individual, freedom, and equality comprise the essence of so-called natural law».

It follows that «freedom as the basis of any human existence and equality as the necessary form of any social being in their combination creates human society as a lawful order. These are affirmed by something general and identical, because the rights of all are equally binding for everyone and the right of each, for all. But it is evident that this simple equality may relate only to that which is identical, to that which all have in common. Common for all subjects of law is the fact that their essence as a person is identical, that is, autonomous or free essences. Thus, proceeding from their equality as a necessary form of right, we come to freedom as a necessary sub-stratum thereof».

Interestingly, a comparable understanding of law resonated in Kant's legal philosophy. For Kant, personal freedom—which he treated formally—is arbitrariness, or the capacity of an individual to act at his own discretion within the limits of his authority. The potential for conflict among individuals arises precisely here. Consequently, the Lex of freedom dictates that the arbitrariness of one person be constrained by the arbitrariness of another, ensuring that no one infringes upon another's freedom. In other words, the personal freedom of any individual is delimited by certain boundaries, thereby establishing and filling a particular sphere, which is itself law.

Solovev termed this the «rational essence of a right which is an ideal condition of all positive legal relations, in them and through them». Under this view, the freedom inherent in law, as Rousseau indicated, represents a form of realizing the common will. It is the capacity of free individuals to engage freely with others, entering into legal relations to pursue their interests and needs, even when those others stand in opposition.

The definition of law grounded in equality and freedom is cognitive-rationalistic in nature, as it directs attention toward understanding law as a phenomenon belonging to the thinking individual who interacts with others on equal footing. This "libertarian" perspective is significant not only for defining the essence of law, but also for reinforcing its humanitarian dimension, countering its perception as purely punitive (a trait typical of totalitarian systems), and shifting its prohibitive orientation toward permissive and dispositive norms. The ideals of equality and freedom, relevant to numerous social classes, were enshrined in constitutions and statutes; these classes waged prolonged struggles for their rights. Equality and freedom served as rallying cries for virtually all revolutions.

However, within this understanding of law, freedom and equality appear only as abstract ideas; they retain their value as markers suitable for a general definition of law solely in an abstract sense. This is because freedom and equality, unlike concrete relations, possess a general rather than a particularized expression. Beyond these limits, both freedom and equality acquire distinct meanings depending on the actual conditions of their realization. Moreover, employing the concept of abstract freedom in defining law necessitates explaining the need for legal differentiation among individual subjects of law and searching for optimal criteria to establish the legal features of regulating particular relations (to be examined in detail below).

As for justness or equity, it shares a common foundation with law but is not identical to it. Nersesiants held that social justness is equivalent to legal justness—that is, a legal approach, adherence to the legal principle of equality—and not some separate non-legal justness. What is just is that which aligns with jus, and to act justly means to act in accordance with jus, following its universal scale and measures or norms of freedom equal for all.

Justness functions as an evaluative tool, a moral criterion through which we determine the acceptability or unacceptability of particular commands issued by authorities. If we accept that law finds its legitimation through society's recognition of it as the ought, then the standard of social justness is reflected in jus; justness also serves as an evaluative criterion for norms legitimized by society, either justifying them or casting doubt upon them, thereby affirming their operation or adjusting these norms in line with new ideals of justness.

This is precisely why these concepts carry their fullest meaning when distinguished from one another. Social justness is imbued with its own social content. Its realization is achieved through various forms and methods, although legal forms and means prove quite effective. If justness represents a correct, true, and justified social differentiation of people in social relations, then law itself, adopting these as fundamental criteria, becomes a vehicle for realizing justness.

To reinforce this point, we turn to Hart, who states that «... law is best understood as a "branch" of morality or justice and that its congruence with the principles of morality or justice rather than its incorporation or orders and threats is of its "essence". This is the doctrine», he continues, «characteristic not only of scholastic theories of natural law but of some contemporary legal theory which is critical of the legal "positivism" inherited from Austin. Yet here again theories that make this close assimilation of law to morality seem, in the end, often to confuse one kind of obligatory conduct with another, and to leave insufficient room for differences in kind between legal and moral rules and for divergences in their requirements».

It should be noted that numerous legal norms carry limited or unlimited ethical evaluation due to the regulation of organizational, technical, or technological processes, where principles of morality or ethics do not apply, but rather principles of rationality or a technological nature. This does not imply that the relevant spheres ultimately fail to connect with morality or ethics, for wherever human activity occurs, ethics is invariably present. We merely point out that the ethical dimension of particular relations is insufficiently represented in specific legal relations (for example, requirements for behavior in production settings, technological norms that support the application of other norms within the legal system—definitions, presumptions, procedural norms, and others).