scholarly journals Philosophical and Legal Foundations of the Comprehensive Theory of Law

wisdom ◽  
2021 ◽  
Vol 1 (1) ◽  
pp. 223-231
Author(s):  
Sergey ZAKHARTSEV ◽  
Viktor SALNIKOV
Keyword(s):  
Legal Theory ◽  
Social Phenomenon ◽  
Comprehensive Theory ◽  
Legal Foundations ◽  
The Law ◽  
Theory Of Law ◽  
Comprehensive Study

The article is devoted to the clarification of the essence of the law. The article examines the ontology of law, and the epistemology of law reflects the philosophical problems of law. The conclusion about the law as a contradictory social phenomenon is formulated. The article substantiates the theory of the comprehensive (all-encompassing) study of law as a philosophical and philosophical-legal theory, the purpose of which is characterized not in the justification of any one theory of law but in the comprehensive study of law, taking into account all available theories. The comprehensive theory allows us to look at the law philosophically, stating the different properties of the object, their manifestations and contradictions. The article argues that it is the philosophical attitude to the law that many scientists lack.

scholarly journals Hart's Methodological Positivism

Legal Theory ◽  
1998 ◽  
Vol 4 (4) ◽  
pp. 427-467 ◽  
Author(s):  
Stephen R. Perry
Keyword(s):  
General Theory ◽  
Natural Law ◽  
Legal Theory ◽  
Legal Positivism ◽  
Social Phenomenon ◽  
Modern Times ◽  
Theory Of Law ◽  
Michael Moore

To understand H.L.A. Hart's general theory of law, it is helpful to distinguish between substantive and methodological legal positivism. Substantive legal positivism is the view that there is no necessary connection between morality and the content of law. Methodological legal positivism is the view that legal theory can and should offer a normatively neutral description of a particular social phenomenon, namely law. Methodological positivism holds, we might say, not that there is no necessary connection between morality and law, but rather that there is no connection, necessary or otherwise, between morality and legal theory. The respective claims of substantive and methodological positivism are, at least on the surface, logically independent. Hobbes and Bentham employed normative methodologies to defend versions of substantive positivism, and in modern times Michael Moore has developed what can be regarded as a variant of methodological positivism to defend a theory of natural law.

scholarly journals To the question of the essence of financial law

2020 ◽  
pp. 26-32
Author(s):  
E. Yu. Gracheva
Keyword(s):  
Continuous Improvement ◽  
Modern Society ◽  
Legal Regulation ◽  
Social Processes ◽  
Social Phenomenon ◽  
Fundamental Nature ◽  
The Social ◽  
Legal Foundations ◽  
The Law

The article discusses some issues of the essence of modern financial law, which, according to the author, remains unchanged, but is filled with new content, which is associated with constantly and rapidly changing social processes of digitalization of society, with all objectivity influencing the content and form of law in general and financial law in particular. The article emphasizes that these processes influence, but do not change the essence of financial law, since otherwise the social phenomenon itself — the law changes. The article analyzes the main essential features of financial law in their unity, interconnection and interaction, taking into account filling them with new content and emphasizing the inviolability and fundamental nature of the legal foundations of modern society, the need for continuous improvement of legal regulation as the most effective and fair instrument of influence on social processes.

scholarly journals Individual and Social in L.I. Petrazhitsky's Philosophy of Law

2021 ◽  
Vol 25 (3) ◽  
pp. 513-523
Author(s):  
Leonid Yu. Kornilaev
Keyword(s):  
Social Order ◽  
Social Life ◽  
Legal Theory ◽  
Psychological Theory ◽  
Life Forms ◽  
Mental Life ◽  
Emotional Life ◽  
The Social ◽  
The Law ◽  
Theory Of Law

Along with competing legal concepts of positivism and gnoseologism in the second half of the 19th century, a direction of legal psychology was formed, within which the psychological theory of law by the Russian and Polish lawyer L.I. Petrazhitsky takes a prominent place. L.I. Petrazhitsky's legal theory interprets the law as a mental phenomenon in a person's mind. The mental life forms the internal and external legal behavior. Studying the law becomes possible only by analyzing the subject's particular kind of emotional life - legal experience. Our focus on the individual's emotional world gives us reason to think of the theory as individualistic, i.e., close to the subject's mental life. At the same time, the Russian lawyer's psychological doctrine also gains explanatory potential for scrutinizing social life. It contains ideas that reveal such mechanisms of social functioning as the affirmation of the ideal of love as the ultimate goal of law-making, the priority of unofficial law in the life of society, and a specific interpretation of public and private law. The system of legal emotions is carried out on the social niveau and establishes such values as love and social order. The article reconstructs the main provisions of Petrazhitsky's psychological theory of law from the point of view of the interaction of its individual and social sides. The social potential of the Russian lawyer's theory appears capable of supplementing and explaining the ideas of socialism and sobornost discussed widely at the turn of the 19th and 20th centuries. Petrazhitsky's individualistic doctrine appears as a flexible concept, capable of fitting organically into various philosophical and sociological contexts.

The Concept ‘Scientifically Valid (Danish) Law’

2019 ◽  
pp. 40-88
Author(s):  
Alf Ross
Keyword(s):  
Social Phenomenon ◽  
Interpersonal Context ◽  
Legal Rules ◽  
Working Hypothesis ◽  
Comprehensive Theory ◽  
Course Of Action ◽  
The Law

On the basis of the analysis of the game of chess and chess rules, Chapter I proposed the working hypothesis that, in principle, it must be possible to define and explain the concept ‘scientifically valid (Danish, Swedish, etc.) law’ along the same lines as the concept of a ‘scientifically valid norm of chess’. This chapter attempts to develop this working hypothesis into a comprehensive theory about what the concept ‘scientifically valid (Danish, Swedish, etc.) law’ actually means. The working hypothesis implies that the law, like the rules of chess, is a supra-individual, social phenomenon. This means that the legal notions of action give rise to a common ideology which is active in most judges’ minds, thereby creating an interpersonal context of meaning and motivation effectively guiding their actions in office because the legal rules are felt to be socially binding. In terms of content, the legal rules are directives to the judges for organizing the exercise of specific coercion through the courts. These directives fall into two categories: norms of conduct; and norms of competence. The former prescribe a certain course of action. The latter create a competence (power, authority) which, in turn, means that they are directives to the effect that norms created in conformity with a given mode of procedure shall be considered norms of conduct.

Our Straitlaced Administrators: The Law, Lesbian, Gay, Bisexual, and Transgendered Educational Administrators, and the Assimilationist Imperative

2003 ◽  
Vol 13 (1) ◽  
pp. 51-85 ◽  
Author(s):  
Catherine A. Lugg
Keyword(s):  
Public Schools ◽  
Policy Analysis ◽  
Legal Theory ◽  
Educational History ◽  
Educational Administrators ◽  
Legal Foundations ◽  
The Law

Drawing upon queer legal theory, historical policy analysis, and social, legal, and educational history, this article explores the legal foundations and maintenance of what I describe as the assimilationist imperative for lesbian, gay, bisexual, and transgendered administrators working in public schools.

scholarly journals Law, Marxism and Method

2018 ◽  
Vol 16 (2) ◽  
pp. 647-655
Author(s):  
Paul O'Connell
Keyword(s):  
Social Change ◽  
Class Struggle ◽  
Reference Points ◽  
Comprehensive Theory ◽  
The Law ◽  
Theory Of Law ◽  
Key Resources ◽  
Marxist Tradition ◽  
Analytical Reference

Law is crucial to the maintenance and reproduction of capitalism. While Marx never produced a comprehensive theory of law, state and rights, there is much in his work, and in the broader Marxist tradition, that can help us understand the nature and role of law in contemporary capitalism. This paper sketches out some of the key resources from within the Marxist tradition that can assist us in developing Marxist understandings of law, state and rights today. Specifically, the focus is on the question of method, drawing out three key strands from Marx's own work: (i) the importance of dialectical materialist analysis; (ii) the historically specific and transitory nature of capitalism and (iii) the centrality of class antagonism and class struggle. The argument advanced here, in sum, is that Marxist explanations of law, state and rights should foreground these analytical reference points, in order to make the role of law intelligible, and to begin to sketch how movements for fundamental social change might understand and engage with the law.

Imperial Visions and Mundane Practices

1987 ◽  
Vol 46 (3) ◽  
pp. 465-488 ◽  
Author(s):  
N. E. Simmonds
Keyword(s):  
Legal Theory ◽  
Ronald Dworkin ◽  
Legal Rules ◽  
Sound Theory ◽  
The Law ◽  
Theory Of Law ◽  
Correct Application ◽  
Proper Interpretation ◽  
Hard Cases

In his first book, Taking Rights Seriously, Ronald Dworkin opposed the view that law is a body of publicly ascertainable rules identifiable by some basic master test or rule of recognition. In place of that account he offered a rival vision. Law was portrayed as inherently controversial in content. Discovering the law on this or that subject is not, Dworkin argued, simply a matter of looking up the established rules: it is a matter of constructing a justificatory theory beneath which the established legal rules can be subsumed. In his latest book, Law's Empire, that account of the nature of law has been backed up by an analogous account of the nature of legal theory. A sound theory of law, we are told, is not one that unearths semantic rules governing the use of the word ‘law’. Disputes between rival legal theories do not hinge on the discovery of such deep semantic criteria, any more than disputes about the content of the law in hard cases hinge on the correct application of a rule of recognition. Disputes of both kinds are interpretive disputes: they concern the proper interpretation of legal practices.

scholarly journals Essay on Politica (Politics and Policy) Once Again

2019 ◽  
Vol 7 (2) ◽  
pp. 96-105
Author(s):  
Andrzej Czajowski
Keyword(s):  
Energy Policy ◽  
Political Thought ◽  
Legal Theory ◽  
Psychological Theory ◽  
Science Literature ◽  
Human Needs ◽  
Term Energy ◽  
The Law ◽  
Theory Of Law

AbstractThough the term “policy” has already been discussed extensively before, it appears to be in need of a critical review in meaning and context. In this essay, the criticism stems from the term “policy of the law”, which was introduced into the political science literature over 120 years ago by Leon Petrażycki, the outstanding creator of psychological theory of the law and the only world-known Polish lawyer. The term itself is false and incorrect as it’s equal to the term “policy of the policy”. Law is a political phenomenon cocreating policy. In addition, the concept of policy of the law is characterised by idealism bordering on naivety. Because of the place of L. Petrażycki in Polish tradition of the theory of law, references to his concept of policy of the law are made constantly in an attempt to apply this concept in scientific and practical considerations. It is time to leave it to the domain of history of legal theory.Another criticism was brought about by the title of the third chapter of Polish Energy Law Act — “Energy Policy”. This entire act and a number of other legal acts regulating the acquisition of energy sources and energy management comprise energy policy. The energy policy also includes various types of programs, actions and decisions of the participants of energy policy. The criticism of the incompetent use of the term “energy policy” is an opportunity to stress the role of policy in the process of meeting human needs.Thirdly, the term “policy” is determined by discussing an element of its structure: political thought. The essay presents the role of political thought in relation to economy, culture, independence, systems and other domains of human activity. The understanding of political thought as a reflection on policy or views on policy is questioned here. Political thought is not a reflection about the policy. Instead, political thought is a political decision which cocreates policy. It is a postulative decision resulting from scientific or common reflection on policy.

ИЗМЕНЕНИЕ ПАРАДИГМЫ МЕТОДОЛОГИИ ЮРИСПРУДЕНЦИИ

2019 ◽  
Vol 13 ◽  
pp. 32-40
Author(s):  
Ю. М. Оборотов
Keyword(s):  
Legal Theory ◽  
Research Strategy ◽  
The State ◽  
New Paradigm ◽  
Methodological Question ◽  
Modern Development ◽  
Decisive Importance ◽  
The Subject ◽  
Methodological Approaches ◽  
The Law

В современной методологии юриспруденции происходит переход от изучения состо­яний ее объекта, которыми выступают право и государство, к постижению этого объек­та в его изменениях и превращениях. Две подсистемы методологии юриспруденции, подсистема обращенная к состоянию права и государства; и подсистема обращенная к изменениям права и государства, — получают свое отображение в концептуальной форме, методологических подходах, методах, специфических понятиях. Показательны перемены в содержании методологии юриспруденции, где определяю­щее значение имеют методологические подходы, определяющие стратегию исследова­тельских поисков во взаимосвязи юриспруденции с правом и государством. Среди наи­более характерных подходов антропологический, аксиологический, цивилизационный, синергетический и герменевтический — определяют плюралистичность современной методологии и свидетельствуют о становлении новой парадигмы методологии юриспру­денции.   In modern methodology of jurisprudence there is a transition from the study the states of its object to its comprehension in changes and transformations. Hence the two subsystems of methodology of jurisprudence: subsystem facing the states of the law and the state as well as their components and aspects; and subsystem facing the changes of the law and the state in general and their constituents. These subsystems of methodology of jurisprudence receive its reflection in conceptual form, methodological approaches, methods, specific concepts. Methodology of jurisprudence should not be restricted to the methodology of legal theory. In this regard, it is an important methodological question about subject of jurisprudence. It is proposed to consider the subject of jurisprudence as complex, covering both the law and the state in their specificity, interaction and integrity. Indicative changes in the content methodology of jurisprudence are the usage of decisive importance methodological approaches that govern research strategy searches in conjunction with the law and the state. Among the most characteristic of modern development approaches: anthropological, axiological, civilization, synergistic and hermeneutic. Modern methodology of jurisprudence is pluralistic in nature alleging various approaches to the law and the state. Marked approaches allow the formation of a new paradigm methodology of jurisprudence.

On the Artifactual—and Natural— Character of Legal Institutions

2018 ◽  
Author(s):  
Corrado Roversi
Keyword(s):  
Natural Law ◽  
Common Ground ◽  
Legal Positivism ◽  
Legal Institutions ◽  
Human Beings ◽  
Legal Realism ◽  
Natural Law Theory ◽  
The Law ◽  
Theory Of Law

Are legal institutions artifacts? If artifacts are conceived as entities whose existence depends on human beings, then yes, legal institutions are, of course, artifacts. But an artifact theory of law makes a stronger claim, namely, that there is actually an explanatory gain to be had by investigating legal institutions as artifacts, or through the features of ordinary artifacts. This is the proposition explored in this chapter: that while this understanding of legal institutions makes it possible to find common ground between legal positivism and legal realism, it does not capture all of the insights offered by these two traditions. An artifact theory of law can therefore be necessary in explaining the law, but it will not suffice to that end. This chapter also posits that legal artifacts bear a relevant connection to certain conceptions of nature, thus vindicating one of the original insights behind natural law theory.

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