One of the essential attributes of our social and individual life is the law. The constitutional conception views the law as an act of legal force, adopted by the supreme body of the state in a predetermined manner and a particular form. The development of a constitutional understanding of the law projected the real processes of democratization of European states and the desire of liberal-minded thinkers to justify the need to limit the absolute monarchy. For instance, within the framework of the formal theory of law, the law is viewed as the only form of law (Sassoon, 2005). In the formal theory of law, all positive law is reduced to legislation, the law is recognized as the highest and most perfect form of law, an instrument of progress that has educational value. This paper aims to investigate the essence of the law by viewing several appointees and disclosing the role of a lawyer in society.
In legal science, for all the various semantic meanings of the law, its essence is reduced to the original, unchanging order, rigor and inexorability, decisive action, independent of the desires of the subjects. In the general theory of law, a law is perceived as a normative legal act adopted securely and aimed at regulating socially significant, typical, and stable social relations (Watson, 2012). Namely, this legal action is the most basic standard of behavior for all legal entities and acts as a normative basis in the implementation of the main internal and external functions of the state (Shklar, 1986). The distinguishing feature of the is that it regulates the most important social relations, has a particular adoption procedure, and has the highest legal force about other regulations.
In modern legal science and practice, the term “law” is used in two ways ‑ as a normative legal act of the highest authority, adopted in a unique order by parliament, and as a normative act of any state body that contains legal norms, mandatory rules of conduct (Sassoon, 2005). The law is a normative act with the highest legal force, adopted in a particular order by the highest representative body of state power or directly by the people, regulating the most important social relations. Characteristic features of the law as a leading source of the rule of law include the following (Watson, 2012):
- Law is a legal document containing the rule of law norms;
- The law is the result of law-making activities of the supreme body of state power (parliament, monarch) or the whole people;
- The law regulates the most significant, typical, stable relations in society;
- The law has the highest legal force, which is manifested in the impossibility of its cancellation by a body other than the one that adopted it;
- The law is a fundamental legal document. It serves as the basis, foundation, guideline for the rule-making activities of other state bodies, courts.
However, in the history of humanity and political and legal thought, there are other views on the law – real ones, associated with attempts to outline the content and reveal its essence. The law in the material sense acts in the form of rules, a form or type of law, interpreted absolutely as an independent entity (truth), revealed in the form of justice, freedom, and equality, more specifically in the form of rules that determine an equal and fair measure of people’s freedom in society. These rules, in essence, can only be general. Hence, there is a community of law as its material attribute.
The law in the material concept differs from other forms of law in the nature of its formation: they are created purposefully, in a relatively short time, by special entities for the future. Several requirements must be created to guarantee the legal nature of the act. These requirements vary in a row of countries and at different times, but their meaning alone serves as formal guarantees to ensure the legal nature of the act called the law (Kagan, 2003). The formal guarantees were developed by humankind to ensure the legal nature of the act, called the law, function as its formal features.
The meaning of the law as one and a perfect form of the rule of law is to ensure public recognition of the rule of law and to oppose arbitrariness. The natural law theory in the second half of the 19th century, and later the material conception of the law, were sharply criticized. Positivism arose and spread, declaring the essential aspects of phenomena inaccessible to understanding and focusing on the knowledge of the external, formal aspects of phenomena, and within the formal theory of law (Sassoon, 2005). However, natural-legal ideas are quite firmly integrated into positivist teachings, as evidenced by the recognition of the general nature of the law as its material attribute by many positivists.
The critical nature of the material theory of law is due to the methodological nature of the natural law theory, within the framework of which the material theory of law exists and is being developed. Natural-legal theory or idealistic jurisprudence (idealistic philosophy of law) is based on an a priori deontological (normative) method. Its essence aims to consider phenomena through the prism of law (its ideas, essence), in their assessment from the standpoint of legal due (Shklar, 1986). Idealistic jurisprudence (philosophy of law) is the fundamental opposition to positivism, with its empiricism, more precisely, its primacy, and its refusal to study the essence of law and its value (Shklar, 1986). In contrast to positivism, idealistic jurisprudence is based on a priori metaphysical ideas (freedom, justice), which are recognized by objective beings, and from which, through subsequent deduction, several conclusions can be drawn (Kagan, 2003). The features of the law that distinguish it from other forms of normative legal acts include their stability and relativistic invariability. The law establishes the fundamental, stable relations inherent in a given system and society in a relatively long, visible period of its existence.
The development of the concepts of law, like any other theory, is always associated with trends in social development. This bond is not one-sided conditioning of ideas by the socio-political situation, but cyclical determination. Not only ideas are settled by reality, but the reality is identified by ideas of society ‑ , in particular, this is the sphere of implementation of legal ideas. The two main concepts of the law (the result of reduction) correspond to two types of social practice. The first type is called voluntarist theory ‑ the practice of socio-political voluntarism, and the second one is material (natural-legal) theory ‑ the practice of the rule of law and the law state. Therefore, formal theories, generated to a certain extent by political voluntarism, lead to it, justifying it in socio-political practice and ignoring the material (objective) aspects of the law, ultimately leading to stagnation of social evolution. On the contrary, by making certain requirements for the content of the law, the doctrine will undoubtedly contribute to improving the legal quality of the legislative activity. Moreover, it contributes to changing the nature and direction of social development.
If to try to give a brief definition of the law, then, with all the conventions of such a definition, it can be formulated in the following way. The law is a form of legal norms established by concrete historical objective laws of social development, social needs, and interests (Kagan, 2003). It represents a permanent unity of natural-legal and positive-legal principles in their concrete historical situation. It is sanctioned by the rule of law, that is, state form of government, organized, acting based on law, and using the state machine for the implementation of legal requirements.
If justice, law, and the legal system play a huge role in modern society, it cannot function without lawyers. The role of a lawyer has multiple implementations and concerns different fields of society. They are individuals who, by obtaining such a profession, receive multiple duties and responsibilities. Lawyers are important for the community due to their performance as a voice for others (Kagan, 2003). If to describe the general role of attorneys, it may be stated that they aim to discover the most efficient way of resolving the conflict and protect society form occurring these conflicts. Thus, it is necessary to state that the barrister’s role imposes moral and legal obligations towards clients and other legal entities.
Firstly, the essential goal of an adversarial advocate is to provide non-judgmental and adequate assistance to the clients. A professional attorney’s duty is to inform the client of their rights, the processes of law and navigate them throughout the legal system. The profession presupposes representing the interests of an individual or these of a group or being a confidant for them. It is of the attorney’s interest to fulfill the client’s request with diligence and zeal and assure that the process is legitimate with respect to the law (Kagan, 2003). Moreover, the lawyer is obliged to preserve a client’s information in confidence unless disclosure is required. Outside the proceedings, the advocate should also act as an advisor. It does not imply that they must rely on personal moral values but as a professional. Hence, personal moral perspectives must be cast aside and remain solely occupational, as the personal ones tend to mislead the lawyer.
Lawyers are public citizens who presume seeking law improvement, high-quality service provision, and the administration of justice. Beyond the professional knowledge aimed at assisting the client, the lawyer’s role is to cultivate all the relevant information and apply it to the reformation of the existing laws and regulations. An attorney must mind the existing discrepancies and deficiencies of the laws and spread the information that every person has a right to legal advocate assistance. Moreover, diverse practice areas help lawyers view hidden aspects of the situation that may somehow benefit the client.
The complexity of human relations and the proliferation of legal systems fostered the emergence of specialists who deal with multiple spheres of life: real estate, environments, securities, matrimonial issues, and others. As a result, one lawyer may be trained for several directions and assist different cases, or they may have a degree in some other area such as chemistry which allows them to carry out some arbitrations in the court.
To my mind, Watson’s writing demonstrates a clear understanding of the law and how it has altered throughout the times. Consequently, I found this writing the most convincing and I support the author’s theory that the law is the foundation for exploring history, sociology, and even literature; therefore, it is the center of society. On the contrary, Sassoon’s idealistic theory of law tends to ignore the material or objective side of the law. Despite the vivid demonstration of the ancient laws and how they were effectively performed, he proved the modern laws to be of a controversial nature. Therefore, I found his position unimproved as I believe contemporary laws are made to establish all human rights equally. However, both Watson and Sassoon have common ground concerning the ancient implementation of the law within society. Moreover, both suggest that the law is at the core of the societal continuum.
In conclusion, it seems necessary to state that the law is a multifunctional system representing and operating within every sphere of human activity. It is the system of rules that regulates the conduct through the public entities. The law is a multifaceted phenomenon existing in every society; therefore, it may differ from state to state. Moreover, lawyers are inseparable from the law and their essential role is to protect human interests as well as adjust the existing laws.
References
Kagan, R. A. (2003). Adversarial legalism: The American way of law. Harvard University Press.
Sassoon, J. (2005). Ancient laws and modern problems: The balance between justice and a legal system. Intellect Ltd.
Shklar, J. N (1986). Legalism. Harvard University Press.
Watson, A. (2012). Ancient law and modern understanding: At the edges. University of Georgia Press.