DOI: 10.25136/2409-868X.2023.9.38833

Abstract: The subject of the study is the English constitutional doctrine of the rule of law, taken in the historical evolution of its understanding by leading authoritative lawyers and thinkers starting with H. de Bracton and ending with A.V. Dicey and modern British constitutional law jurists. The article presents both positivist and non-positivist interpretations of the doctrine. Particular attention is paid to the classical interpretation of the doctrine of the rule of law in the work of A.V. Dicey "Introduction to the Study of Constitutional Law" (1885): the main meanings of the concept are revealed and critical remarks set out in the British legal thought of the XX century are presented. The article concludes with a brief summary of the modern understanding of the doctrine of the rule of law in the contemporary legal literature.   The novelty of the research is that for the first time in Russian jurisprudence, the historical reconstruction of the formation and development of ideas that make up the content of the doctrine of the rule of law is revealed. Special attention is paid to the contribution to the development of this legal doctrine by such jurists as J. Fortescue, E. Coke, S. Rutherford, J. Locke, A.V. Dicey. In addition, attention is paid to the distinction between interpretations of the concept by lawyers of the positivist and non-positivist legal thought. Critical understanding of A.V. Dicey's teaching on the rule of law and modern interpretations of the concept are presented for the first time in the Russian legal literature.

DOI: 10.7256/2454-0684.2023.1.43806

Abstract: The subject of the present paper is the interpretation of the doctrine of the rule of law in the teaching of the leading representative of exclusive legal positivism, Joseph Raz (1939–2022). The importance of analyzing the doctrine of the rule of law from this perspective lies in the fact that such a study is able to identify the fundamental ideas of the positivist understanding of the law and the rule of law from the standpoint of the post-Hartian stage of its evolution. The article reveals two main approaches to understanding the rule of law in modern British legal literature: material and formal concepts. Raz's views on the rule of law are compared with the classical ideas of Albert Venn Dicey, the principles of the "inner morality" of law by Lon L. Fuller, and the position of Friedrich August von Hayek. The scientific novelty of the article is that, for the first time, an attempt has been made to reveal the differences between formal and material concepts of the rule of law in British jurisprudence in Russian legal literature. Raz's arguments about the nature and goals of the rule of law are not generally accepted in English constitutional doctrine but are quite indicative of the position of post-Hartian legal positivism on the problem of building a stable and predictable legal order. On the one hand, the principles of the rule of law revealed in Raz's teachings relate exclusively to the legal form, which is generally characteristic of the neo-positivism of the twentieth century. On the other hand, sociological attitudes can also be distinguished in Raz's teaching, which allows us to assert that post-Hartian legal positivism combines a number of ideas of "classical" and "sociological" positivism.

DOI: 10.7256/2454-0706.2022.9.38771

Abstract: The subject of the present paper is the interpretation of the doctrine of the rule of law in the teaching of the leading representative of exclusive legal positivism, Joseph Raz (1939–2022). The importance of analyzing the doctrine of the rule of law from this perspective lies in the fact that such a study is able to identify the fundamental ideas of the positivist understanding of the law and the rule of law from the standpoint of the post-Hartian stage of its evolution. The article reveals two main approaches to understanding the rule of law in modern British legal literature: material and formal concepts. Raz's views on the rule of law are compared with the classical ideas of Albert Venn Dicey, the principles of the "inner morality" of law by Lon L. Fuller, and the position of Friedrich August von Hayek. The scientific novelty of the article is that, for the first time, an attempt has been made to reveal the differences between formal and material concepts of the rule of law in British jurisprudence in Russian legal literature. Raz's arguments about the nature and goals of the rule of law are not generally accepted in English constitutional doctrine but are quite indicative of the position of post-Hartian legal positivism on the problem of building a stable and predictable legal order. On the one hand, the principles of the rule of law revealed in Raz's teachings relate exclusively to the legal form, which is generally characteristic of the neo-positivism of the twentieth century. On the other hand, sociological attitudes can also be distinguished in Raz's teaching, which allows us to assert that post-Hartian legal positivism combines a number of ideas of "classical" and "sociological" positivism.

DOI: 10.7256/2454-0706.2021.12.37185

Abstract: The subject of this research is the legal doctrine of the leading representative of English legal positivism of the last quarter of the XIX – first third of the XX centuries of Thomas Erskine Holland. The article is dedicated to examination of the two key aspects of his concept – comprehension of the nature of jurisprudence as a science, and law as a type of social norm. Leaning on the classic work of the British jurist “The Elements of Jurisprudence” (1880), the author defines the understanding of jurisprudence and law, reveals the historical-cultural meaning of Holland's legal doctrine for the subsequent development of English jurisprudence. Methodological framework is comprised of the historical approach, elements of biographical approach, techniques and procedures of legal hermeneutics, rules and techniques of formal logic, and elements of comparative-legal method. The scientific novelty lies in the fact that this article is first within Russian legal science to conduct the concept analysis of the key theoretical-legal definitions (jurisprudence and law) of T. Holland’s doctrine, as well as reveal the ideological interrelation between the views of the British jurist and the founders of analytical jurisprudence. The author also substantiates the position, according to which Holland's approach towards comprehension of the nature of jurisprudence as a science can be defined as dogmatic. T. Holland's contribution to the development of legal positivism consists in argumentation of the formal and analytical nature of legal science, as well as in carrying out gradual differentiation of positive law from natural and social norms, and analysis of the crucial theoretical concepts of legal science.

DOI: 10.7256/2454-0706.2020.11.34429

Abstract: The subject of this research is the  aggregate of philosophical ideas and methodological paradigms that underlie the concepts of the “first” legal (statist) positivism in England of the XIX century. The author traces the impact of certain philosophical trends and legal concepts of the XVIII – early XIX centuries upon the philosophical and methodological foundations of the positivist concepts of J. Bentham and J. Austin. The article describes the influence of social atomism, and exploratory rationality of Modern Age upon the “first” legal positivism of philosophical rationalism of the XVIII century. The impact of such philosophical and legal concepts as nominalism, the historical school of lawyers, and philosophical positivism of A. Comte upon the “first” legal positivism was reconstructed. The scientific novelty consists in reconstruction of the influence of an entire number of philosophical and legal ideas and concepts upon the development of “first” legal positivism. Correlation between the legal doctrine of J. Bentham, philosophical concepts of the XVIII century, and the legal teaching of T. Hobbes is underlined. The author draws the ideological parallels between the philosophical nominalism, logical paradox of D. Hume, and legal doctrines of J. Bentham and J. Austin. The author reveals the key “channels” of the impact of German Historical School upon legal positivism, describes the similarities and differences between the scientific positivism of A. Comte and the concepts of legal positivism of J. Bentham and J. Austin. The philosophical-methodological framework of the concepts of “first” legal positivism were subjected to a significant influence of the methodological paradigm of philosophical rationalism, social atomism, exploratory scientific rationality of Modern Age, and nominalism.

DOI: 10.7256/2454-0706.2020.11.43385

Abstract: The subject of this research is the  aggregate of philosophical ideas and methodological paradigms that underlie the concepts of the “first” legal (statist) positivism in England of the XIX century. The author traces the impact of certain philosophical trends and legal concepts of the XVIII – early XIX centuries upon the philosophical and methodological foundations of the positivist concepts of J. Bentham and J. Austin. The article describes the influence of social atomism, and exploratory rationality of Modern Age upon the “first” legal positivism of philosophical rationalism of the XVIII century. The impact of such philosophical and legal concepts as nominalism, the historical school of lawyers, and philosophical positivism of A. Comte upon the “first” legal positivism was reconstructed. The scientific novelty consists in reconstruction of the influence of an entire number of philosophical and legal ideas and concepts upon the development of “first” legal positivism. Correlation between the legal doctrine of J. Bentham, philosophical concepts of the XVIII century, and the legal teaching of T. Hobbes is underlined. The author draws the ideological parallels between the philosophical nominalism, logical paradox of D. Hume, and legal doctrines of J. Bentham and J. Austin. The author reveals the key “channels” of the impact of German Historical School upon legal positivism, describes the similarities and differences between the scientific positivism of A. Comte and the concepts of legal positivism of J. Bentham and J. Austin. The philosophical-methodological framework of the concepts of “first” legal positivism were subjected to a significant influence of the methodological paradigm of philosophical rationalism, social atomism, exploratory scientific rationality of Modern Age, and nominalism.

DOI: 10.7256/2409-868X.2017.1.19220

Abstract:   The subject of this research is the notion of legal ideology and its connection with the dogmatic jurisprudence. The main attention is given to correlation between the notions of legal ideology and juridical dogmatic theology, determination of their differences and similarities, as well as interaction in the process of legal regulation. Revelation of the subject of research is conducted from the perspective of functional approach: the author determines the role and importance of legal ideology and juridical dogmatic theology within the system of law alongside the process of legal regulation, as well as accentuates their practical and pragmatic nature. The article reveals the notion of legal ideology and its functional significance in legal system. The author’s original understanding of the grounds and structure of legal ideology is provided. The work gives characteristics to the process and necessary conditions for establishment of the juridical dogmatic theology. The author reveals the interconnection between the juridical dogmatic theology and legal ideology, as well as complementarity of their action in the process of legal regulation.  

DOI: 10.7256/2454-0706.2014.3.6417

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DOI: 10.7256/2454-0706.2014.3.42063

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DOI: 10.7256/2454-0706.2013.1.4040

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DOI: 10.7256/2454-0706.2013.1.41754

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