Kresin Oleksiy
Abstract. The formal separation of the national legal order determined, on the one hand, by the will of the national society, and on the other hand, by international law, did not explain the substantive non-identity of the legal orders – after all, they could be considered as purely utilitarian, functional branches of the law one for all people (irrespective of its origin and character – divine, natural, or rational). The question arose about the substantial individuality (identity) of each national legal order – its peculiar elements,
and the features of its general (common in more than one legal order) elements. The idea of the peculiarity of national law was based primarily on the organic theory of national law, which emphasized the essential role of self-development in the evolution of the people. During the period studied in the article, scientists put forward the thesis of the non-self-sufficiency of the influence of unchanged climatic conditions, as well as needs and economies of peoples that are largely derived from them acting as the framework of the possible development of a people whose culture and identity recognizes these limitations and opposes them. Social life was viewed as free and self-determined, and the law – as its integral element within the framework of the cultural tradition, and manifestation of its awareness and understanding. The fundamental basis for understanding peculiarities of the law by scholars of that time were: the historicity of the peculiar elements in national law, which is determined by social development in specific conditions, thus entirely or mostly denying their substantiality; the impossibility, at least in relation to their own societies and states, of the existence of an absolutely autochthonous law in the modern world, the lack of self-sufficiency of the peculiar, as well as, in principle, the openness of legal systems to interaction; the dependence of the expansion or contraction of the sphere of peculiar elements in national law of the will of society and other factors, the possibility of alternative options for the development of this sphere; the impossibility of depriving national law of its peculiar elements without ceasing its existence, and their necessity.
Keywords: comparative jurisprudence; comparative law; national legal system; national legal order; peculiarity in law; organic theory of national law.