Genesis: Historical research
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Publications of Gorban Vladimir Sergeevich
Law and Politics, 2021-9
Gorban V.S. - Qualified reader or interpreter: on the attitude of the researcher towards the sources of cognition of legal and political doctrines pp. 133-142

DOI:
10.7256/2454-0706.2021.9.36491

Abstract: This article determines and analyzes certain characteristics of modern approaches towards the problem of attitudes to the sources of study on the history of political and legal thought. The attempts to speculate on hermeneutic practices as the constitutive method in analyzing the political and legal views of the philosophers of the past and modernity are subject to critical evaluation; and, on the other hand, the importance of qualified interpretation and analysis of the classical legal heritage is emphasized. It is demonstrated how conventional, shallow, or ideologized attitude towards the sources of study on the history and political thought creates fallacious and often just quasi-religious patterns of interpretation of the fundamental ideas and concepts, content of the discussed topics and problems, and social-practical orientation of their views. The scientific novelty lies primarily in determination and clarification of certain crucial aspects of modern methodology of the history of political and legal doctrines that are meaningful for the philosophy of law and legal theory overall. This pertains to the improvement of cognitive techniques and practices of the political and legal ideas of the past and modernity,  namely through minimization or elimination of such approaches towards their cognition that speculate on anti-historical attitudes; constitute interpretation as the key semantic unit in assessing the legal views of various philosophers; neglect the principles of objectivity and integrity in reconstructing the intellectual heritage; tendentiously articulate the accents of artistic, rather than documentary reconstruction of legal and political representations.
Law and Politics, 2020-3
Gorban V.S. - The problem of novelty in legal science: to the question on methodological aspects of studying legal doctrines pp. 28-39

DOI:
10.7256/2454-0706.2020.3.32425

Abstract: The subject of this research is the problem of interpretation of continuity and novelty in carrying out historical-philosophical and problematic-theoretical reconstructions of legal doctrines of the past and modernity. The absence of due knowledge on the origin, history of acquisition and application of theoretical ideas of the past often leads to significant modifications, distortions and loss of historical linkage within the legal picture of the world. The repetition of legal ideas and theoretical constructs of the past is natural, but firstly it can and should be viewed as a methodological prerequisite for searching of approaches and means to substantiate the interests to certain aspects of law, and secondly, for ensuring scientific value of modern research, it must be clarified not by the conventionality of scientific knowledge, but based on the reconstruction of origin, application and valid meaning and designation of ideas. The methodology leans on the comparative analysis of legal ideas of the past and modernity in synchronic and diachronic angle. The novelty of the conducted research consists in interpretation of the problem of novelty in legal science based on the requirement for preservation of continuity in terms of their historical-philosophical and problematic-theoretical reconstruction. At the same time, such requirement reveals in a number of specific reconstructions and examples of utilization of methodological approaches for their conduct.
Legal Studies, 2017-11
Gorban V.S. - Law as a Means to an End: on the issue of genesis and creative modification of the concept (R. von Jhering and R. Stammler) pp. 1-19

DOI:
10.25136/2409-7136.2017.11.24526

Abstract: The research subject is the political and legal and socio-philosophical views of R. von Jhering and R. Stammler on the problem of interpretation of law as a means to an end of existence and development of society. Genesis of this concept — “law as a means to an end” — is connected with the formation and creative evolution of Jhering’s political and legal theory. Later the sociologized variant of interpreting law as a means to an end had become one of the most popular ways of studying and interpreting law. Stammler modified this concept and some other significant components of Jhering’s legal theory (struggle for law, living conditions of society, etc.) articulating the so-called “system” or formal method, which is aimed at studying not the essence of law, but the forms of thinking about law. The research methodology is based on the set of general scientific and specific methods, the methods of theoretical analysis and historical and philosophical reconstruction of political and legal doctrines. The scientific novelty of the work consists in the analysis of the problem of Jhering’s legal views’ impact on the formation and character of Stammler’s creative philosophizing about law, which hasn’t been studied sufficiently enough. The work clarifies the problem of genesis and creative modification of one of the central components of Jhering’s legal theory about the interpretation of law as a means to an end. Stammler’s main achievement in this context consists in the fact that he had introduced the interpretation of law as a means to an end and a range of related theoretical concepts into the central scope of social philosophy. 
Law and Politics, 2017-11
Gorban V.S. - Adolf Merkels General Theory of Law as euthanasia for the philosophy of law and its ideological origins pp. 17-28

DOI:
10.7256/2454-0706.2017.11.24536

Abstract: The subject of this research is the problem of genesis and disciplinary formation of the “General Theory of Law”, the appearance of which was associated with the name of the prominent German legal expert Adolf Merkel (1836-1896).  The “General Theory of Law” represented an original disciplinary version of the philosophy of positive law, on one hand contributing into the revival of the philosophy of law in form of positive law, while on the other, having attempted to eliminate the difference between positive and suprapositive law, became the “euthanasia” for the classical philosophy of law. The originality of Merkel’s position consisted in the fact that he posed a direct question about the disciplinary correlation of the philosophy of law and positive jurisprudence, suggesting the genuine explanation of the role of the philosophy of law as a “general part of jurisprudence”. Merkel’s interpretation of the aforementioned problematic was inspired by the political legal theory of his mentor Jhering. The scientific novelty is defined by the fact that this work explores the little-studied problematic of genesis and program orientation towards the “general theory of law”, which as a disciplinary form, remains topical in the area of legal study and legal consciousness. The research demonstrates that Merkel’s position that devaluated the importance of classical philosophy of law, was considerably the development of the scientific agenda of Jhering.
Politics and Society, 2017-10
Gorban V.S. - The problem of philosophy of law in legal consciousness of Rudolf Stammler pp. 10-27

DOI:
10.7256/2454-0684.2017.10.24035

Abstract: The subject of this research is the interpretation by the renowned German social philosopher, legal expert, prominent representative of legal Neo-Kantianism R. Stammler (1856-1938) of the problem of “philosophy of law”, its disciplinary role and meaning in comprehension of law. The work accents attention on the problem of “philosophy of law” in Stammler’s legal consciousness due to the fact that through understanding and resolving namely this problematic have developed the most common features of its legal and socio-philosophical views. In reality, Stammler, having indicated the problem of “philosophy of law, on one hand encouraged the revival of interest towards the philosophy of law as such alongside the attempts to overcome the methodological monism in Kantianism manner; while on the other hand –  using specific approaches towards substantiation of the personal legal understanding, Stammler rather contributed into the devaluation of the problem of “natural law” and strengthening of the positions of positivistic philosophy of law. The main conclusion lies in the statement that R. Stammler’s attitude to the problem of “natural law” and philosophy of law highlighted as central in the overall combination of his legal and socio-philosophical views, in terms of content of his major works did not encouraged the “revival of natural law” and overcoming of the methodological monism in comprehension and interpretation of the political-legal problematic, but instead, created the philosophical explanation for consolidating the position of positivistic philosophy of law and subsequent devaluation of the natural-legal type of legal consciousness, as a result requiring the occurrence of the “pure legal doctrine”.
Law and Politics, 2017-9
Gorban V.S. -
Rudolf Stammlers The Doctrine of the Right Law as a synthesis of the formal-rationalistic (Kantian) approach towards legal consciousness and R. Jherings teleological concept of law
pp. 1-11

DOI:
10.7256/2454-0706.2017.9.24027

Abstract: The subject of this research is the problem of interpretation of the notion of law, as well as formation of methodological approaches towards its substanuation in the legal doctrine of Marburg Neo-Kantian – Rudolf Stammler, who introduced interpretation of law as a “natural law with the variable content” and formulation of the concept of “right law”.  The core construct of Stammler’s entire intellectual activity lies in the problem of cognizing law as the central and leading factor of social development. The specific features of Stammler’s legal consciousness manifest in the original modification of R. Jhering’s teleological concept from the perspective of formal-rationalistic (Kantian) philosophy. The scientific novelty consists in the fact that the initial hypothesis of the study on the meaningful impact of legal views of R. Jhering upon the establishment of legal doctrine of R. Stammler, particularly the concrete theoretical and methodological approaches towards analysis of the category of “legal concept”, as well as methods of substantiation of the “right law” concept, was confirmed by the results of examination of the original compilation texts of the thinkers and specific comparable concepts of their teachings.
Law and Politics, 2017-5
Gorban V.S. - Impact of Hegels philosophy upon the formation and development of Jherings doctrine on law (the beginning) pp. 77-97

DOI:
10.7256/2454-0706.2017.5.22214

Abstract: The subject of this research is the question of succession and novelty of Jhering’s teaching on law that ie examined from the perspective of ideological origins in Hegel’s philosophy. Among the philosophical and jurisprudential schools and disciplines, which significantly affected the establishment and transformation of Jhering’s legal understanding, the decisive role belonged to the entire philosophical system of Hegel, including philosophy of law, history, religion, and logic. Historical legal studies usually point at the very fact of influence of Hegelian philosophy upon the formation of Jhering’s legal worldview, leaving aside such important aspect as: which specific logical and conceptual constructs were critically and non-critically interpreted by Jhering; character and level of such influence; which meaning carried Hegel’s philosophy for the formation of Jhering’s teaching on law. The scientific novelty of this work consists in determination and description of the direct impact of Hegel’s philosophy upon the establishment and transformation of the legal worldview of Jhering at various stages of his creative path. The conducted research allowed proving the original hypothesis that Hegel’s philosophy at times had stronger effect that the historical school of law in development of Jhering’s legal understanding. Identification of the separate successive features in Jhering’s legal understanding with regards to Hegelian philosophy pointed at the elements of novelty in accordance with Jhering’s expression – “enrichment of jurisprudence using philosophical legal means”.
Law and Politics, 2017-5
Gorban V.S. - Impact of Hegels philosophy upon the formation and development of Jherings doctrine on law (the conclusion) pp. 98-114

DOI:
10.7256/2454-0706.2017.5.22215

Abstract: The subject of this research is the question of succession and novelty of Jhering’s teaching on law that ie examined from the perspective of ideological origins in Hegel’s philosophy. Among the philosophical and jurisprudential schools and disciplines, which significantly affected the establishment and transformation of Jhering’s legal understanding, the decisive role belonged to the entire philosophical system of Hegel, including philosophy of law, history, religion, and logic. Historical legal studies usually point at the very fact of influence of Hegelian philosophy upon the formation of Jhering’s legal worldview, leaving aside such important aspect as: which specific logical and conceptual constructs were critically and non-critically interpreted by Jhering; character and level of such influence; which meaning carried Hegel’s philosophy for the formation of Jhering’s teaching on law. The article analyzes the views of Hegel and Jhering on the meaning of compulsion, as well as struggle and interests as the factors of legal understanding and legal cognition. The scientific novelty of this work consists in determination and description of the direct impact of Hegel’s philosophy upon the establishment and transformation of the legal worldview of Jhering at various stages of his creative path. The conducted research allowed proving the original hypothesis that Hegel’s philosophy at times had stronger effect that the historical school of law in development of Jhering’s legal understanding. Identification of the separate successive features in Jhering’s legal understanding with regards to Hegelian philosophy pointed at the elements of novelty in accordance with Jhering’s expression – “enrichment of jurisprudence using philosophical legal means”. The author substantiates a conclusion that the theoretical foundation of the constructs of Jhering’s legal theory on the concept of compulsion, struggle and interests consists in the corresponding ideas of Hegel’s philosophical doctrine.
Legal Studies, 2017-4
Gorban V.S. - Sociological interpretation of law in the works of Rudolf von Jhering pp. 26-37

DOI:
10.7256/2409-7136.2017.4.21788

Abstract: The research subject is R. von Jhering’s theory of law, considered from the viewpoint of its sociological components. Von Jhering was one of the originators of the sociological approach in jurisprudence; at the same time, his sociological legal theory had been forming together with the establishment of sociology as a discipline. The innovation of von Jhering’s approach consisted in the shift from the study of the normative system to empirical analysis of social reality, which was considered as the source of law and at the same time, as the way of its verification. The author studies the main components of sociologism as interpreted by Jhering, particularly, such theoretical constructs as the law as “legally protected interest”; social theory, in which law is considered as the main factor of development and positive social changes; and interpretation of law as “living conditions of society”. The research methodology is based on general scientific methods (analysis, synthesis, generalization, comparison, etc.), specific methods, and general and special methods of historical-legal studies (analysis of the structure of political and legal theories, etc.). The scientific novelty consists in finding out the content, the sense, and the originality of some key components of sociological interpretation of law in von Jhering’s theory. The study is based on the analysis of a wide range of unconsidered and unstudied sources (Jhering’s personal manuscripts, correspondence, unknown works), revealing the essence of his legal ideas in the context of approaches to knowledge and interpretation of law, typical for the sociological approach in jurisprudence. 
Genesis: Historical research, 2017-4
Gorban V.S. - Formation of sociologically oriented legal teaching of Jhering (final chapter) pp. 1-19

DOI:
10.7256/2409-868X.2017.4.22551

Abstract: The subject of this research is the problem of formation and theoretical-methodological arrangement of Jhering’s sociological approach to law. The establishment of sociologically oriented legal theory of Jhering is being traced based on determination and examination of the specific theoretical and methodological constructs with consideration of the gradual immersion and improvement of his legal understanding towards the integral sociological oriented legal worldview. The article reviews the problem of formation and application of the original methods of legal knowledge and legal understanding (structural-descriptive functional analysis of law alongside empirical-analytical research, description of social legal reality and factors of social development, the crucial of which is law) in composition of the Viennese and Göttingenian periods. The scientific novelty consists in analysis, revelation, and characterization of the certain theoretical constructs and implemented by the thinker methods that in assemblage define the legal theory of Jhering as one of the first sociological theories of law. The conclusion is made that Jhering’s sociologism was being formed as anti-legalistic ideology aimed at transition from the study of law as a normative system towards the explanation of law using the category of social reality and various mechanisms of realization of sociality by the virtue of law (law as a factor of social stability, social identification, and social integration).  
Genesis: Historical research, 2017-4
Gorban V.S. - Formation of the sociologically oriented legal doctrine of Jhering (the beginning) pp. 20-37

DOI:
10.7256/2409-868X.2017.4.22535

Abstract: The subject of this research is the question of establishment and theoretical-methodological arrangement of the sociological approach to law in the works of Jhering. The establishment of Jhering’s sociologically oriented legal theory is traced on the basis of determination and examination of the specific theoretical and methodological constructs, considering the successive extension and improvement of his legal understanding aimed at the integral sociologically oriented legal outlook. The article reviews Jhering’s attitude towards the historical school, as well as the role of the “jurisprudence of notions” in establishment of his sociological legal understanding. The scientific novelty consists in analysis, identification, and description of the particular theoretical constructs and applied by the thinker methods, which in collectively characterize Jhering’s legal theory as one of the first sociological theories of law. The conclusion is made that the “jurisprudence of notions” was just a theoretical-ideological foundation of the interpretation of law as a structurally organized wholeness, as well as subject by Jhering to substantial modification already in the early large compositions (first volume of the “Spirit of the Roman Law”) from the transition from examination of law as a normative system towards the explanation of law using the category of social reality.
Law and Politics, 2017-4
Gorban V.S. - On R. Jherings legal understanding pp. 1-16

DOI:
10.7256/2454-0706.2017.4.22651

Abstract: This article examines the question of determination of the typological affiliation of R. Jhering’s legal understanding, which is associated with the contradictory, antithetical, and often ambiguous interpretation of the character and type of legal worldview of the thinker. One of the significant reasons for various interpretations of Jhering’s legal understanding is the fact that his work was very dynamic, and the manner of presentation of the legal views notable for the substantial stylistic distinction: vast amount of metaphors, frequent textual hyperbolization of separate moments (as for example, struggle form law, state compulsion, etc.). The article reviews the following aspects: key signs of Jhering’s legal understanding, including due to the further development of separate directions of the political legal thought; question of differentiation of law and legislation within Jhering’s legal theory; and formulated by Jhering definition of law. The scientific novelty consists in the conclusion on typologization of Jhering’s legal doctrine as an empirical and sociological juridical positivism, which integrated the original sociological approach to law based on the empirical analytical cognition and interpretation of law, as well as the positivistic interpretation of the role of state recognition of the established by society legal norms.
Law and Politics, 2017-3
Gorban V.S. - Rudolf von Jherings The Struggle for Law concept pp. 1-14

DOI:
10.7256/2454-0706.2017.3.21770

Abstract: The subject of this research is the formulated in the early 1870’s R. Jhering’s concept of the struggle for law, which was the quintessence of the key ideas and constructs of the thinker’s legal understanding developed during the preceding period. The aforementioned concept established the final transition of Jhering towards the empirical-sociological legal positivism. In the concept of the struggle for law, Jhering formulated the original theory of social development and social changes, which is promoted and driven by law. The structure of the concept examines the following key components: perception of law as a practical notion; participation of each individual in the progress of law; and determination of the ethical and spiritual-moral motive as the most significant among all the motives of realization of law. The originality and novelty with regards to Jhering’s development of legal understanding, consists in elevation of the subjective law to the attribute of personal dignity. The concept of the struggle for law remains relevant in the modern political-legal literature and practice. The scientific novelty of this work lies in determination and interpretation of the main components of Jhering’s concept on the struggle for law in the context of progression of his legal views, formation of his style of creative philosophizing, empirical-sociological perception, as well as discussion of law. The concept of the struggle for law is views as a theoretically substantiated model of social development and social changes by the virtue of law and active participation of the contemporaries in realization and advancement of law.
Politics and Society, 2017-3
Gorban V.S. - The teaching of Rudolf von Jhering on law and the Marxism: problem of correlation and interpretation pp. 16-34

DOI:
10.7256/2454-0684.2017.3.22193

Abstract: The subject of this research is the problem of comparison, correlation, and interpretation of the link between the sociologically oriented teaching of Jhering on law and the social theory of Marx. Both thinkers, being contemporaries, have developed and formulated the original social theories, in which they referred to the discussion of similar sociopolitical problematic, theoretically substantiating social development and social changes by the use of analogous categories and notions: struggle, interests, and active participation of the contemporaries. However, they remained antagonistic in the initial positions, as well as the answers to the raised questions, thus interpreted the factors of social development very differently. The article analyzes the commonness of the ideological origins of both thinkers in Hegel’s philosophy and their desire to make sense of things. The scientific novelty of this research consists in determination and substantiation of the general and peculiar aspects of social theories of Jhering and Marx. The author demonstrates the complete opposition of the aimed at constant radical reformation of reality socio-revolutionary theory of the Socialist Marx and the liberal -evolutionary, based on the recognition of law as the key factor of development and suggesting the liberal program, of socially active processes of contemporaries, social theory of Jhering. The author concludes that the views of both thinker developed in parallel from the general ideological origins, and did not produce a significant impact upon each other.
Law and Politics, 2017-3
Gorban V.S. - Formation and application of the sociologically oriented methodology of legal knowledge and legal understanding in Jherings doctrine of law pp. 15-29

DOI:
10.7256/2454-0706.2017.3.22519

Abstract: The subject of this research is the legal teaching of Jhering reviewed from the perspective of formation and application of the original methodology of legal knowledge and legal understanding, which articulated the sociological orientation of the thinker’s legal outlook. The peculiarity of Jhering’s methodology of legal teaching consisted in paradigmatic ideology of social realism oriented towards the general cultural positivistic ideology, according to which the society and its development was considered based on the image and likeness of the natural sciences. Due to this fact, Jhering substantiated and implemented within the legal knowledge and legal understanding the methods of structural functional and empirical analytical examination of law alongside the factors of social development, the principal of which was law. In addition, the article explores the meaning of the “jurisprudence of notions” in establishment of sociologically oriented methodology of Jhering’s legal teaching. The scientific novelty consists in research of the methodological foundation of Jhering’s sociologically oriented legal teaching. The author demonstrates the actual meaning of the “jurisprudence of notions” in ideological and methodological formation of Jhering’s original sociological approach to law. A position is substantiated that Jhering was the first legal expert, who prior to the conceptual arrangement of the structural functional analysis in sociology, has applied this method towards the analysis of law, as a social phenomenon that is determined and verified by the social reality.
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