Идеалистички појам права. Преливање природног у позитивно право: пример правде и правичности
The Idealistic Concept of the Law. Overflow of Natural Law into Positive Law: Example of Justice and Fairness

Summary/Abstract: It is very difficult to determine the law precisely. This is especially true for to the idealistic theories of the law. They can be classified into naturally-legal, aprioristical-phenomenological, existentialistic, culturalistical theories or in other theories of law. Few contemporary multidisci-plinary theories could fall into this category as well. Despite their numerousness, not a single idealistic theory can provide either a reliable or a definitive answer to the question of what the law is. For this reason the differentiation should be made between the idealistic and the idealised and the ideal concept of the law. The problem is in that the idealistic concept of the law is inoperative, the idealised concept of the law is not correct, while the ideal concept of the law is out of human’s reach. One may ask oneself how it is possible at all to determine the law idealistically. The answer to that question can be found by linking it with justice or some other value, as well as by using the teaching of the three worlds of the law through which it is possible to surpass dualism of the natural law and the positive law. The most difficult to explain is how the values of the natural law overflow into the positive law. However, it is attainable thro-ugh the operative use of one or a number of naturally-legal values in the form of the legal policies or the decisive measurements which can be used for the choice of the legal priniciples through which the natural law over-flows into the positive law and becomes its part. For example, justice over-flows into the positive law through fairness, security through certainty, etc. One thing is for certain: both the realistically determined law and the ideallistically determined law always exist for the people - not the other way around. It also apllies to the natural law which becomes operational whenever it overflows into the positive law.

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