NORMS FOR DECISION IN THE “UNIVERSUM” OF THE ANALYTICAL DIMENSION OF LAW

Abstract

The article under studies deals with the structure (1) and the forms of application (2) of norms for decision (NfD). The latter were developed by the Chernivtsi professor E. Ehrlich (NfD of a legal dispute) and are currently relied on by the contemporary scholars R. Alexy (NfD as a result balancing the principles), F. Müller (NfD as a result of aggregation) and others. These two constituents create a “universe of thinking”, which is referred to as the analytical dimension of law. The latter is opposed to the normative and empirical dimensions that can regard the issue of correlation between NfD and rules / principles (in terms of the doctrine by R. Dworkin and R. Alexy), as well as the issue of correlation between NfD and the normative power of the actual (the term by G. Jellinek covering the significance of prejudices and the actual consequences of applying a legal norm, etc.). Thus, the article under discussion develops the theory of NfD within one of the three above-mentioned elements of trialism of law, namely through formalization and interpretation of the process of elaborating and implementing such norms.
A necessary condition for setting this type of problem is the consistent consideration of the issue of optimal structure and sub-structures of NfD, as well as its / their interpretation. This may be done by means of an implicative formula a → b, in the following ways: α) a ∧ ¬ a' ∧ ¬ a'' → b, β) a ∧ a' ∧ ¬ a'' → ¬ b, γ) a ∧ ¬ a' → ¬ a'' → b (standard explication and original interpretation of the formulas are presented in the body of the article). Detailed analysis is carried out on the basis of distinguishing between initial and derivative norms, basic and supplementary norms, as well as law-substantiating and law-denying (absolute and relative) norms. Besides, the article demonstrates how these norms and respective formulas may be applied in the form of subsumption, as well as explains the significance of balancing in the course of forming Nfd. In conclusion, with reliance on a specific example, the article under studies indicates how the above-mentioned provisions may be applied in practice.
All this allows to draw a conclusion that the optimal structure of norms for decision is the implication in its three variants (α, β, γ), which take into account the three aspects of formation of such a norm (fundata, negata, exceptione elisa). The only form of applying these norms is subsumption, whereas balancing is of subsidiary importance, being always oriented to forming a respective new normative framework (= NfD). The prospects of further investigation of the issue under studies are closely related to the possibility of regarding NfD in the normative and empirical dimensions of law.