Balancing of Values and the Value of Balancing (Part Two)

Abstract

The second part of the article is devoted to the analysis of two epistemological problems that are directly related to the balancing of values in judicial prac­tice – the nature of human rights and the relationship between law and non-le­gal normativity. According to the authors, the dispute between Habermas and Alexy over what is the authority of law in the area of human rights illustrates the conflict between Kantian legal philosophy and jurisprudence of interests, between the absolutism of deontological ethics and consequentialism. Balanc­ing legal values, using, among other things, the economic analysis of law, is one of the ways of the conscious evolution of law, its synchronization with the flow of life of society. Another problem is related to the conflict between the natural boundaries of law as a scientific and practical field of knowledge, and the regu­latory function of law, which presupposes a timely and adequate response of the law to external events and challenges. The authors turn to Luhmann’s dis­tinction between the normative closeness of law and its cognitive openness and come to the conclusion that there is both direct and indirect communication be­tween law and other normative systems (such as ethics and economics). Law assimilates and transforms ideas and values ​​of other areas of knowledge, but it shares with them the same context, which allows us to speak of the common cognitive structures