scholarly journals The problem of theoretical-methodological “refinement” of jurisprudence

2021 ◽  
pp. 1-9
Author(s):  
Dmitry Aleksandrovich Savenkov
Keyword(s):  
Legal Theory ◽  
Phenomenological Approach ◽  
Contemporary History ◽  
Legal Thought ◽  
Adequate Understanding ◽  
History Of ◽  
Theory Of Law ◽  
Legal Concepts ◽  
Legal Understanding ◽  
Xix Century

The subject of this research is the essential characteristic of the history of legal thought of the last two centuries, which directly pertains to the theoretical-methodological fundamentals of legal theory. In the conditions of the object-disciplinary establishment of legal science as the theory of law since the end of the XVIII century, crucial significance has acquired the orientation towards demarcation of logical-gnoseological and real-psychological aspects of legal understanding. The article analyzes the peculiarities of the corresponding theoretical-methodological opposition, which manifested in the appeals to the construction of “refined” legal concepts that exclude any real arguments of social, historical, political, or psychological nature. By the end of the XIX century, namely in the field of the philosophy of law, has escalated the competition between psychologism and anti-psychologism in law. The novelty of this research lies in determination of the new patterns of theoretical and methodological opposition of psychological and anti-psychological attitudes of legal understanding in the evolution of legal thought in contemporary history. It is demonstrated that the phenomenological approach, which claimed to provide jurisprudence with an authentic scientific methodological apparatus, reduced the problem of legal understanding, however, did not contribute to the adequate understanding of law as a complex gnoseological object. Anti-psychological classification of phenomenology cannot be acknowledged without a profound analysis of the conceptual framework that contributed to the evolution of this approach in the sphere of cognition and interpretation of law.

scholarly journals Doctrinal basis of the Soviet law science —epistemological and praxeological dimensions

2021 ◽  
Vol 7 (3) ◽  
pp. 45-53
Author(s):  
Evgeni A. Apolski ◽  
Andrei Yu. Mordovtsev ◽  
Aleksei Yu. Mamychev
Keyword(s):  
General Theory ◽  
Legal Theory ◽  
Scientific Research ◽  
Theoretical Knowledge ◽  
Legal Knowledge ◽  
Philosophy Of Law ◽  
Legal Thought ◽  
History Of ◽  
Theory Of Law ◽  
Further Development

The article considers the Soviet dissertation theoretical and legal doctrines as a scientific category with a set of specific features. The author draws attention to the fact that the massive layer of legal theoretical knowledge known as Soviet jurisprudence and the legal teachings reflecting the evolution of Soviet law are insufficiently studied in ontological and epistemological terms. In specific, the role, place, and significance of Soviet dissertation legal theoretical teachings are lacking in the literature. Moreover, the Marxist methodology of legal knowledge, which should be used in modern educational and scientific space, lacks clear assessment. The author analyzes the most important thesis on the theory of law, which reflect the ontological and methodological foundations of the Soviet law and legal theory presented in the theses. This article lays the basis and the vector of further development of Soviet jurisprudence. These dissertation doctrines are analyzed to further use them in the scientific research of laws and trends in the development of Soviet legal thought. The results of these analyses are crucial for the history of political and legal doctrines, general theory of law, and philosophy of law and can be used in other areas of legal (including industry) science, considering their interdisciplinary heuristic potential.

ИСТОРИЧЕСКИЙ ДИСКУРС В ПРОСТРАНСТВЕ ТЕОРЕТИКО-ПРАВОВОЙ МЫСЛИ

2020 ◽  
Author(s):  
Vadim Afanasevskiy
Keyword(s):  
Secondary System ◽  
Philosophical Foundations ◽  
Legal Thought ◽  
Conceptual Structures ◽  
Initial Setting ◽  
History Of ◽  
The Difference ◽  
Theory Of Law ◽  
Legal Concepts ◽  
Conceptual Foundations

В статье анализируются механизмы функционирования исторического подхода в теоретико-правовых конструкциях. Исходной установкой выступает положение о том, что полная и абсолютная конвертация понятий и концептов одной теории в пространство другого правового контекста является трудной или невозможной. Решение поставленной проблемы автор видит в рассмотрении топоса существования теоретико-правовой мысли посредством анализа концептуальных оснований различия, что дало бы возможность четче структурировать пространство теории права при сохранении в целостности ее морфического разнообразия. Именно разработка представлений о концептуальных основаниях различия создает условия перевода концептуальных структур правовых теорий или школ, их понятийного аппарата, а также позволяет развернуть пространство их философской концептуализации. Автор констатирует принципиальную условность различения смыслов понятий «история теории права» и «право». И это различение базируется на конкретных философских основаниях. Проблема представления истории теории права всегда связана с конкретным хронотопом, предполагающим конкретные историко-культурные и философские предпосылки. Для формирования образа истории правовой мысли в отношении к феномену права, по мнению автора, необходим анализ основных принципов континуальности/дискретности и диахронности/синхронности. Смысловая связь между правовыми концепциями выражается в континуальности и дискретности. Диахронность и синхронность выступают как системообразующие типологические факторы, формирующие облик теоретико-правовой реальности. В связи с этим в статье вычленены четыре формы взаимодействия первичных и вторичных системообразующих факторов, которые и выступают как варианты функционирования исторического дискурса в теоретико-правовом пространстве.The article analyzes the mechanisms of functioning of the historical approach in theoretical and legal constructions. The initial setting is the provision that the complete and absolute conversion of the concepts and concepts of one theory into the space of another legal context is difficult or impossible. The author sees the solution of the problem posed in examining the topos of the existence of theoretical and legal thought by analyzing the conceptual foundations of the difference, which would make it possible to more clearly structure the space of the theory of law while maintaining the integrity of its morphic diversity. It is the development of ideas about the conceptual foundations of differences that creates the conditions for the translation of the conceptual structures of legal theories or schools, their conceptual apparatus, as well as expanding the space of their philosophical conceptualization. The author notes the fundamental convention of distinguishing between the meanings of the concepts “history of the theory of law” and “law”. And this distinction is based on specific philosophical foundations. The problem of representing the history of the theory of law is always associated with a specific chronotope, suggesting specific historical, cultural and philosophical prerequisites. To form an image of the history of legal thought in relation to the phenomenon of law, according to the author, an analysis of the basic principles of continuity/discreteness and diachronism/synchronism is necessary. The semantic connection between legal concepts is expressed in continuity and discreteness. Diachronism and synchronism act as system-forming typological factors that shape the appearance of theoretical and legal reality. In this regard, the article identifies four forms of interaction of primary and secondary system-forming factors, which act as options for the functioning of historical discourse in the theoretical and legal space.

Legal Realism in Chicherin’s Philosophy of Law

2020 ◽  
pp. 68-71
Author(s):  
Vladimir Sergeevich Gruzdev
Keyword(s):  
Russian Philosophy ◽  
Philosophy Of Law ◽  
Legal Realism ◽  
Making Meaning ◽  
Social Facts ◽  
Legal Thought ◽  
History Of ◽  
Central Meaning ◽  
Legal Understanding ◽  
Xix Century

The paper considers the problem of determining the origins of legal realism by the example of the views of the outstanding representative of the Russian philosophy of law B.N. Chicherin as a generalized characteristic of the methods of legal knowledge and legal understanding that are widely used in modern legal thought. Taking into account the varie-ty of meanings and interpretations of the realism of law, the study demonstrates, first, the problem of articulating the central meaning of the principle of realism in the philosophy of law of the XIX century, which is fixed in Russian legal thought, secondly, the author substantiates the thesis that the name “legal realism” is not unambiguous and implies a variety of options for its conceptual design. Analyz-ing Chicherin’s legal views, the paper argues that legal realism in the modern history of political and legal thought is not seen only as the installation of the legal version of the philosophy of pragmatism, with its focus on making meaning based on social facts, but as a direction, articulated the recognition of the reality of law as a spiritual phenomenon.

scholarly journals A Conceptual History of Recognition in British International Legal Thought

2017 ◽  
Vol 87 (1) ◽  
pp. 18-97 ◽  
Author(s):  
Martin Clark
Keyword(s):  
International Law ◽  
Interwar Period ◽  
Basic Concept ◽  
Self Determination ◽  
Conceptual History ◽  
Colonial Era ◽  
Legal Thought ◽  
History Of ◽  
The 1950S ◽  
Legal Concepts

Abstract This article examines the development of the concept of recognition in the writings of British jurists. It first outlines methodologies of conceptual history as applied to international legal concepts, before examining four strands of development of the concept of recognition from the mid-nineteenth to mid-twentieth centuries. It shows how the concept of recognition moved from examining intra-European diplomatic disagreements, to a focus on Christianity, civilisation and progress that barred non-European communities, to a late colonial-era emphasis on technicalities of government and territory, and eventually a state-centric account that normalised inferiority into difference, before emerging in the interwar period as a ‘basic concept’ of international law: intensely debated and closely tied to a range of political projects. The article concludes with reflections on why British thinking turns away from recognition in the 1950s, as the decolonising world turns to a new international law and self-determination.

scholarly journals Activity as a dominant of conceptual legal realism

2021 ◽  
pp. 30-44
Author(s):  
Vladimir Sergeevich Gruzdev
Keyword(s):  
Meaning Making ◽  
Contemporary History ◽  
Conceptual Approach ◽  
Legal Realism ◽  
Legal Thought ◽  
Local Schools ◽  
Key Characteristics ◽  
History Of ◽  
Objective Meaning ◽  
Cognitive Attitudes

The subject of this research is the concept of activity – one of the semantic characteristics of conceptual legal realism. The latter is viewed as a certain paradigm or gnoseological strategy, which serves as the basis for the development of cognitive attitudes. Legal realism is often erroneously reduced to the regional and local schools and trends of the legal thought. However, the study of legal realism as a conceptual technique, which has different interpretation of one of the central and meaning-making themes in the history of legal thought, allows introducing significant clarifications into the understanding of realism in jurisprudence from the perspective of the history of its formation, as well as heuristic capabilities in modern legal science. Activity is viewed as one of the key characteristics of the realistic approach towards law, taking into account various interpretations of realism. The novelty of this research consists in examination of the problem of realism in jurisprudence and its fundamental semantic characteristics through the prism of conceptual approach. The problem of psychology of activity, which was actively developed by the Soviet philosophical-psychological school, is closely related to the development of realistic interpretations of law in the contemporary history of legal thought. The author substantiates the position that application of the construct on the differentiation of the objective meaning from subjective-personal sense in the area of cognition of law allows to critically reconsider such trends on the modern legal thought that position themselves as the varieties of legal realism, clarify possible directions in the development of realism in jurisprudence.

scholarly journals Mythologisation of Law by Historical Consciousness

wisdom ◽  
2021 ◽  
Vol 1 (1) ◽  
pp. 125-137
Author(s):  
Valery MALAKHOV ◽  
Galina LANOVAYA ◽  
Yulia KULAKOVA
Keyword(s):  
Legal Theory ◽  
Social Process ◽  
Historical Consciousness ◽  
Customary Law ◽  
Main Hypothesis ◽  
Historical Interpretation ◽  
The Subject ◽  
Historical Phenomenon ◽  
Legal Concepts ◽  
Legal Understanding

The main objective of this article is to substantiate the fact that historical consciousness as a form of social consciousness is full of the mythologisation of law. The main hypothesis is that only such forms of law as customary law and international law may be considered historical phenomena. Standalone in law, mainly subjective law is not actually a historical phenomenon; therefore, any historical interpretation of it leads to mythologisation. The subject of this study is the mythologisation of law, found in the content of several legal concepts and being present in correlations with basic historical concepts. The complexity of the problem posed is that the very phenomenon of history outside historical consciousness, especially in our time, is constantly subjected to serious mythologisation. The result of the study is the statement that historical legal understanding is not connected with the understanding of the nature of law and does not reveal its essence. The methodological consequence of this for legal theory is the need for concentration on the understanding of the development of law not as a historical, but only as a social process, and for the law itself – as something that exists and makes sense only in the present.

scholarly journals The problem of anti-psychologism in Hans Kelsen’s “Pure Theory of Law”

2021 ◽  
pp. 22-28
Author(s):  
Dmitry Aleksandrovich Savenkov
Keyword(s):  
Legal Theory ◽  
Significant Part ◽  
Pure Theory ◽  
History Of ◽  
Hans Kelsen ◽  
Theory Of Law ◽  
Legal Methodology

This article examines the nature and specificity of the criticism of psychologism as a theoretical-methodological orientation towards studying law and its interpretation, which in particular was associated with such version of interpretation of law as the “Pure Theory of Law” of Hans Kelsen. More in-depth representations of modern legal theory in understanding the patterns of law and its essential aspects requires the due coverage of the history of psychological and anti-psychological approaches towards law that form of the major oppositions in the development of legal though at the turn of the XIX – XX centuries. Multiple aspects of H. Kelsen's legal views are yet to be examined, including the correlation of his doctrine with other doctrines, as well as the nature of substantiation of law and the analysis of legal phenomena. The scientific novelty of lies in the fact that based on the analysis of legal views of the Austrian jurist Hans Kelsen wirh his pronounced claim to exclude all “non-legal’ elements, it is revealed that a significant part of conceptual-logical apparatus of Kelsen’s teaching and the approaches towards substantiation of law were psychological in nature. Unlike the objective-idealistic positions of H. Kelsen, legal Neo-Kantianism was methodologically more accurate in elucidation of interrelation between the actual legal phenomenon and the role of gnoseological methods of perception and comprehension of law. The assessment of H. Kelsen’s doctrine as the theory of law is subject to criticism in this article, since in reality it is limited to the issues of legal methodology.

WILLIAM JETHRO BROWN'S CRITIQUE OF JOHN AUSTIN'S LEGAL THEORY AS A STAGE IN THE DEVELOPMENT OF LEGAL POSITIVISM

2021 ◽  
Vol 14 (6) ◽  
pp. 60-65
Author(s):  
ANASTASIA KORZHENYAK ◽  
◽  
ANTON MIKHAILOV
Keyword(s):  
New Zealand ◽  
Legal Theory ◽  
External Action ◽  
Legal Positivism ◽  
Legal Doctrine ◽  
Legal Principles ◽  
Anglo American ◽  
Theory Of Law ◽  
Legal Understanding

The purpose of the research. This article analyses the main points of the legal teaching of the Australian jurist William Jethro Brown (1868-1930), which the authors of this study regard as forming one of the significant stages in the evolution of Anglo-American legal positivism. Along with his contemporaries, a New Zealand lawyer John William Salmond (1862-1924) and British jurists Thomas Erskine Holland (1835-1926) and John Mason Lightwood (1852-1947), Brown was among the first critics of the «command theory of law» of the founder of the analytical school of jurisprudence John Austin (1790-1859). The authors of this article prove that the ideas, including those of W. Brown, play the role of a link between the founders of the analytical school of law (J. Bentham, J. Austin), the teachings of William Markby, Sheldon Amos, and subsequent generations of English legal scholars of both positivist and neo-positivist direction. Many provisions of Brown's legal doctrine became the basis for criticism of Austin's command concept and legal understanding in the teachings of H. L. A. Hart, the central figure of English neopositivism of the 20th century. As a result of the research the authors conclude that there are comparative similarities between W. J. Brown's conception of «rules of external action», J. W. Salmond's idea of «ultimate legal principles» and H. L. A. Hart's legal doctrine on the «rule of recognition».

scholarly journals Psychological legal realism of P. V. Delarov

2021 ◽  
pp. 20-34
Author(s):  
Vladimir Sergeevich Gruzdev
Keyword(s):  
Legal Realism ◽  
Legal Scholar ◽  
Psychological Concept ◽  
Legal Thought ◽  
Legal Science ◽  
Legal Literature ◽  
History Of ◽  
Methodological Principles ◽  
Xix Century ◽  
Scientific Worldview

The subject of this research is the works of the Russian legal scholar of the second half of the XIX century P. V. Delarov, better known to his contemporaries as a collector of antiques. Since the late 1870s he wrote several essays covering the fundamental and applied topics and problems of legal science and practice. His works are poorly studied within the framework of legal disciplines of historical and philosophical-legal profiles, however represent particular interest for the history of establishment of legal thought in Russia. This particular pertains to the author’s reference to the tasks on reforming legal science into psychology of law; renewing the theoretical-methodological principles and characteristics, which allowed the Russian legal scholar to resolve the fundamental contradictions in the area of cognition and interpretation of law, associated with idealistic or realistic arguments. The scientific novelty of this research lies in the following aspects: description and analysis of the legal views of P. V. Delarov, which were not been previously studied in the history of legal thought; substantiation of the conclusions that he formulated the first theoretically mature and developed psychological concept of law within the Russian legal literature; the concept of P. V. Delarov appeared much earlier than the psychological concept of L. I. Petrażycki;. Delarov’s concept in its essence represented a variety of realistic theories that rely on the tendency of “scientification” of jurisprudence within the framework of natural-scientific worldview of the XIX century. This article also presents other generalizations and explanations of P. V. Delarov's legal views, which allow introducing significant clarifications into understanding the processes of the emergence of psychological approaches towards law in the Russian and Foreign legal literature.

The Continuation of Ijtihād

2021 ◽  
Vol 60 (1) ◽  
pp. 31-51
Author(s):  
Mubasher Hussain
Keyword(s):  
Eighteenth Century ◽  
Islamic Law ◽  
Legal Theory ◽  
Legal Reasoning ◽  
Law Schools ◽  
The West ◽  
Legal Thought ◽  
Positive Law ◽  
History Of ◽  
The Law

This article deals with legal thought of Shāh Walī Allāh, an outstanding religious thinker of eighteenth-century Muslim India, who emerged as one of the most prominent proponents of independent legal reasoning (ijtihād). According to Walī Allāh, ijtihād has always been a communal duty and thus it stipulates the existence of jurists capable of independent legal reasoning (mujtahids) in all ages. His thought-provoking response to the issues concerning ijtihād and taqlīd has led to a great deal of attention from scholars in both the East and the West. However, there remains the controversy of whether he advocated for an independent ijtihād after the eponyms of the law schools or not. This study attempts, analyzing Walī Allāh’s views on the juristic typology maintained by Sunnī jurists, to show how Walī Allāh argued for the continuity of ijtihād, both partial and independent, throughout the history of Islamic law. The author concludes that Walī Allāh believed not only in the possibility of absolute ijtihād (al-ijtihād al-muṭlaq) or ijtihād through legal theory (fī ’l-uṣūl) and positive law (wa ’l-furū‘), after the eponyms of the juristic schools, but also in the existence of such absolute jurists throughout Islamic centuries.

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