The Concept "Subject of Law": An Attempt of a Phenomenological Rethinking

Rethinking the concept "subject of law" is the problem of this article. Despite the existence of an established general theory of the subject of law, there is a problem of establishing the semantic boundaries of this concept. The author suggests using H. L. A. Hart's principle of revocability of legal concepts and finding a methodological approach that would allow to solve the problem. E. Husserl's phenomenology was chosen as such an approach. Based on the Husserlian criticism of classical Western European science and the revealed contradictions in the studies on the history of the formation of the concept "subject of law" (N.L. Duvernois, H. Dernburg, G.F. Shershenevich, M.F. Vladimirsky-Budanov, H. Kelsen), a conclusion is made about the limited traditionalism of the principle of historicism and the formal logical approach. Using the phenomenology of law by Adolf Reinach and N.N. Alekseeva, the author reveals the semantic horizons of the concept "subject of law". As a result, the author claims that the concept is not factual, but constitutive, derived from the possible interpretations of the versions of thingness of law. In addition, the analysis of phenomeno-logical concepts revealed the need to correlate the concept of the subject of law with the concept of subjectivity, which includes the given subject of saw in terms of aspects of its activities. Next, using phenomenological reduction, the initial semantic basis of the subjectivity of the subject of law is additionally analyzed. Husserl's method of description helped identify the following identifying characteristics (descriptors) of the subject of law: to be an actor; to be a value; to be the primary source of the constitution of meanings; to be ready to take a responsible position; to be able to remove the negativity that was originally inherent in legal awareness; to be able able to positively assess the content of values and norms; to be able to think in a normative way. The validity of the findings is verified by extrapolating them to the study of the concept "human rights". It is proved that a genetic content connection exists between the concepts "human rights" and "subject of law". Using materials from studies by Adolf Reinach, Robert Bernasconi, Giorgio Agamben, Hannah Arendt, Robert Alexy, and also on the basis of a comparative analysis of human rights generations, it is argued that the source of human rights is subjectivity, not factors external to the subject of law. In this context, human rights appear as one of legal formations created by the mental activity of "I" as an idea of a material-spiritual entity and expressing one of the manifest images of the human in the world.

Keywords

Authors

References