scholarly journals Philosophy of Law in the Context of Post-non-classical Science: Methodological Pluralism and the Case of Communicative Theory of Law

2020 ◽  
Vol 20 (3) ◽  
pp. 320-325
Author(s):  
Sophia V. Tikhonova ◽  
Keyword(s):  
Methodological Pluralism ◽  
Philosophy Of Law ◽  
Communicative Theory ◽  
Theory Of Law

THEORY OF LAW AND PHILOSOPHY OF LAW AS THEORETICAL DISCOURSES: SPECIFICS AND RELATIONSHIP

2020 ◽  
pp. 9-17
Author(s):  
Вадим Леонидович Афанасьевский
Keyword(s):  
Scientific Knowledge ◽  
Scientific Theory ◽  
Theoretical Concept ◽  
Philosophy Of Law ◽  
The West ◽  
Scientific Creativity ◽  
Key Characteristics ◽  
Different Types ◽  
Theory Of Law ◽  
The Relationship

В статье анализируется проблема взаимоотношений философии права и научной теории права. Рассматриваемая проблема стала особенно актуальной в российском образовательном пространстве в связи с введением после длительного перерыва в государственный образовательный стандарт магистратуры по юриспруденции учебной дисциплины «Философия права». Автор статьи в качестве базисного принимает тезис, согласно которому философия права, являясь сферой философской мысли, и теория права как область научного социогуманитарного знания представляют собой разные типы теоретического дискурса. Исходя из этого, в статье выстраивается теоретическая концепция, согласно которой задачей философии права как философского типа мышления является конструирование или экспликация онтологических, эпистемологических, аксиологических, феноменологических оснований для формирования и функционирования научных теоретико-правовых и историко-правовых построений. Для реализации поставленной в статье задачи подробно рассматриваются ключевые характеристики как теории философского типа, так и идеалов, норм и характеристик научного знания. Выявленное различие экстраполируется на взаимоотношение теории права как продукта научного творчества и философии права как конструкции, задающей базовые мировоззренческие смыслы. В качестве примера выработанных философией права и государства оснований научных теорий прогресса, государства, морали и права, автор приводит взгляды мыслителей западноевропейской философской классики: Т. Гоббса, Ж.-Ж. Руссо, И. Канта, Г.В.Ф. Гегеля. Именно их философские концепции предопределили образы теоретико- и историко-правовых учений XVIII, XIX, XX и даже начала XXI в. Таким образом, отношение философии права и теории права выстраивается по «вертикали»: от онтологического основания к возведению теоретико-правовых и историко-правовых научных построений. The article analyzes the problem of the relationship between the philosophy of law and the scientific theory of law. The problem under consideration has become especially urgent in the Russian educational space in connection with the introduction of the Philosophy of Law discipline master's degree in law after a long break. The author of the article takes as the basis the thesis that the philosophy of law, being the sphere of philosophical thought, and the theory of law as a field of scientific socio-humanitarian knowledge are different types of theoretical discourse. Based on this, the article builds a theoretical concept according to which the task of the philosophy of law as a philosophical type of thinking is the construction or explication of ontological, epistemological, axiological, phenomenological grounds for the formation and functioning of concrete scientific theoretical and legal and historical and legal constructions. To implement the task posed in the article, the key characteristics of both a theory of a philosophical type and ideals, norms and characteristics of scientific knowledge are examined in detail. The revealed difference is extrapolated to the relationship between the theory of law as a product of scientific creativity and the philosophy of law as a construction that sets basic philosophical meanings. As an example of the foundations of the scientific theories of progress, state, morality and law developed by the philosophy of law and the state, the author gives the views and thinkers of the West European philosophical classics T. Hobbes, J.-J. Russo, I. Kant, G.V.F. Hegel. It was their philosophical concepts that predetermined the images of theoretical and historical-legal doctrines of the XVIII, XIX, XX and even the beginning of the XXI centuries. Thus, the attitude of the philosophy of law and the theory of law is built along the «vertical»: from the ontological foundation to the construction of theoretical and historical and historical legal scientific constructions.

Interpretivism in Jurisprudence: What Difference Does the Philosophy of History Make to the Philosophy of Law?

2007 ◽  
Vol 1 (3) ◽  
pp. 365-393
Author(s):  
Naomi Choi
Keyword(s):  
Philosophy Of History ◽  
Legal Positivism ◽  
Legal Authority ◽  
Philosophy Of Law ◽  
Historical Interpretation ◽  
Interpretive Theory ◽  
Legal Positivist ◽  
Points Of View ◽  
Theory Of Law ◽  
Positivist Approach

AbstractTo answer the question of what difference the philosophy of history makes to the philosophy of law this paper begins by calling attention to the way that Ronald Dworkin's interpretive theory of law is supposed to upend legal positivism. My analysis shows how divergent theories about what law and the basis of legal authority is are supported by divergent points of view about what concepts are, how they operate within social practices, and how we might best give account of such meanings. Such issues are widely debated in the philosophy of history but are often overlooked in jurisprudential circles. When the legal positivist approach to meanings is contrasted with Dworkin's interpretivism it is clear that what is needed is an alternative to both, in the form of what we might call "historical meanings" and "historical interpretation". While Dworkin's interpretivism gets it right that legal positivism is an inadequate philosophy of law to the extent that it is committed to a "criterial semantics" view of concepts, this paper argues that post-positivism in the philosophy of law need not entail a normative jurisprudence, as Dworkin would have it.

scholarly journals Correlation between Philosophy and Theory of State and Law

2021 ◽  
Vol 39 (5) ◽  
Author(s):  
Oleg Grygor ◽  
Yuri Krysiuk ◽  
Angela Boyko ◽  
Vadim Zubov ◽  
Igor Sinegub
Keyword(s):  
Civil Rights ◽  
Theoretical Aspect ◽  
The State ◽  
Theory And Practice ◽  
Philosophy Of Law ◽  
Depth Study ◽  
History Of ◽  
Theory Of Law ◽  
The Relationship

At first glance, the relationship between philosophy and theory of law is not applied but is considered a purely theoretical aspect. This thesis is not correct due to the adoption of the European legal standard of human and civil rights, the role of philosophy of law, the foundations of the theory of state and law in the training of lawyers, the formation of future lawyers of high philosophical and methodological culture.In this article, based on the analysis of the history of philosophy of law and the general theory of state and law and their development, the authors justify as an autonomous status in the jurisprudence of the two disciplines, their relationship and vice versa - differences.To do this, the authors explored the historical excursion of world philosophical and legal thought, grouped scientific and theoretical views on the relationship between philosophy of law and theory of state and law and provided an argument for the close intersection of philosophy of law and theory of state and law, mobility between scientific disciplines.Close contact between philosophy and jurisprudence contributes to the understanding of law not only as a function of the state but also the essence of human spirituality.The authors concluded that the in-depth study of scientific and theoretical aspects of the relationship between philosophy, philosophy of law and theory of state and law is the result of bridging the gap between theory and practice and will further focus on expanding the interaction of philosophy, theory and law results of the functioning of the state and law.Emphasizing the relevance of the topic in terms of bridging the significant gap between theory and practice, between the declarative provisions of laws and their actual implementation, the legal, scientific community is increasingly expanding to enter the plane of the practical application of philosophical - theoretical thought.

scholarly journals A moldura kelseniana: formulação dos limites da interpretação na Teoria Pura do Direito

2020 ◽  
pp. 221-244
Author(s):  
Paulo Henrique Rodrigues Pereira
Keyword(s):  
20Th Century ◽  
Philosophy Of Law ◽  
Pure Theory ◽  
Hans Kelsen ◽  
Legal Thinking ◽  
Theory Of Law

RESUMOA Teoria Pura do Direito figura como uma das grandes obras do pensamento jurídico do século XX. Entretanto, pouco se explora a visão do autor sobre a interpretação das normas e dos princípios em sua visão totalizante do direito. O presente artigo busca reconstituir a discussão sobre as limitações da visão de Hans Kelsen sobre a interpretação no direito, focando em sua Teoria Pura. Através da delimitação das críticas feitas a Kelsen, nominalmente sobre incoerência e insuficiência da operação de sua teoria, o autor passará à abordagem do próprio Kelsen sobre a interpretação como resposta a tais críticas, para então produzir um balanço desse debate.PALAVRAS-CHAVEKelsen. Interpretação. Teoria Pura do Direito. Filosofia do Direito. ABSTRACTThe “Pure Theory of Law” occupies a place as one of the most relevant works of legal thinking in the 20th Century. However, little is discussed on Hans Kelsen’s vision on interpretation of norms and principles in his systematic vision of Law. This article seeks to explore the discussion regarding the limitations of his vision on interpretation of Law, focusing on his Pure Theory. Through the delimitation of the criticism to his work, specially of incoherence and insufficiency of the operation of his theory, the author will then pursue Kelsen’s own approach on the interpretation as an answer to such criticism, to then display an overall assessment of this debate.KEYWORDSKelsen. Interpretation. Pure Theory of Law. Philosophy of Law.

scholarly journals Methodological Pluralism of Legal Thinking: Problems of Theory and Philosophy of Law

2021 ◽  
Vol 3 (3) ◽  
pp. 17-32
Author(s):  
Elizaveta A. Frolova ◽  
Keyword(s):  
The State ◽  
Legal Issues ◽  
Comparative Approach ◽  
Public Order ◽  
Methodological Pluralism ◽  
Philosophy Of Law ◽  
Theoretical Approaches ◽  
Legal Thinking ◽  
Political Conditions ◽  
Legal Concepts

Introduction. Currently, in theoretical and legal science, discussions continue about the un- derstanding of the content and the methodology of the knowledge of law. This article shows the theoretical approaches to the study of law in different historical periods. Law is analysed from the point of view of formal dogmatic jurisprudence, sociological direction in law, and the theory of natural law in both their historical and theoretical aspects. Theoretical Basis. Methods. The purpose of this work is to study the content of law as a sociocultural phenomenon. To achieve this, the following tasks are examined: the analy- sis of law as the most important social regulator of human activity is undertaken – which shows the right as a part of spiritual life. Further, the main legal schools and trends in law are analysed. In the course of the study, the following methods were used: analysis and synthesis, a her- meneutic, and a comparative approach. Results. As a result of the study, the author came to the following conclusions: 1) the plurality of methodological approaches to the study of the nature and purpose of law are due to the dialogical nature of theoretical and legal sciences (philosophy of law, theory of state and law, history of political and legal doctrines, and the sociology of law); 2) the basis of the methodological pluralism of legal thinking lies in the different content of law. This is where law is understood as an interest, as a freedom, as a social duty, as a morality, as an order of the authorities, as the discretion of a judge, as well as the degree of implementation of the legal phenomenon in the concrete historical conditions of society; 3) each doctrine of law and the state is a model for solving the legal issues of its time. This includes proposing and arguing for one or another option for maintaining public order. It is original and can (and should) be applied in specific socio-political conditions. Discussion and Conclusion. Each doctrine of law and the state is a model for solving legal issues of its time. Offering various options for resolving urgent political and legal issues, these theories can (and do) enter into conflicts with each other. Each of the legal concepts, offering and arguing for one or another option for maintaining public order, is original and can (and should) be used in specific socio-political conditions. At the doctrinal level, political and legal concepts are variants of alternative legal thinking, the validity and relevance of which is confirmed by the degree of demand at a particular historical stage of the develop- ment of society, law, and the state.

scholarly journals Current State and Prospects of the Russian Theory of Law and State Part 2

2015 ◽  
Vol 2 (1) ◽  
pp. 9-18
Author(s):  
V V Lapaeva
Keyword(s):  
General Characteristic ◽  
Sociology Of Law ◽  
Philosophy Of Law ◽  
Legal Studies ◽  
Legal Ideology ◽  
Current State ◽  
The Russian Federation ◽  
Russian Law ◽  
Theory Of Law ◽  
Sociological Studies

Article deals with general characteristic of current state of the Russian theory of law, which is examined in the unity of such aspects as philosophy of law, sociology of law and legal dogmatics. For the philosophy of law the main direction of efforts should be connected with development of general doctrinal type of understanding of law, which would correspond to a human-centric legal ideology, assumed as the basis of the Constitution of the Russian Federation. The task of sociology of law is seen, first of all, in development on the basis of such understanding of law of theoretical-methodological basis for study of social conditionality of legislation and efficiency of its application. The proper transfer of the results of philosophical and legal and legal and sociological studies, conducted within the framework of the theory of law, at the level of law-making and law enforcement practice requires the development of an adequate legal dogmatics. The author substantiates the need for development of the human-centric dogma of the Russian law as such a system of legal-dogmatic constructions, which would specify the principle of human rights priority. Special attention is paid to disclosure of cognitive potential of libertarian juristic type of understanding of law in respect of each of the chosen directions of theoretical and legal studies.

scholarly journals methodological conflict between theory and philosophy of law

2021 ◽  
Vol 5 (S3) ◽  
Author(s):  
Sergey S. Shestopal ◽  
Elena A. Kazachanskaya ◽  
Svetlana V. Kachurova ◽  
Evgeniy V. Kachurov
Keyword(s):  
Modern Philosophy ◽  
Ontological Status ◽  
Philosophy Of Law ◽  
Legal Science ◽  
Scientific Disciplines ◽  
The Subject ◽  
The Law ◽  
Theory Of Law

The subject of this research is the recently intensified competition in modern jurisprudence of two equally respectable scientific disciplines: philosophy of law and theory of law. The goal is to demarcate the meaning of these concepts. Their ontological status (essential significance) in relation to the existence of the law, the reflection of which they are, is also considered. Based on analysis of the existential criticism of the dominant forms of modern ideology, it is proved that the existing theories of law depend on these forms. A stable tendency in modern philosophy to return legal science to the origins of philosophical knowledge of legal reality is stated.

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.

Two Views of the Nature of the Theory of Law: A Partial Comparison

Legal Theory ◽  
1998 ◽  
Vol 4 (3) ◽  
pp. 249-282 ◽  
Author(s):  
Joseph Raz
Keyword(s):  
Legal Philosophy ◽  
Legal Practice ◽  
Philosophy Of Law ◽  
Ronald Dworkin ◽  
Semantic Account ◽  
General Part ◽  
Theory Of Law

In Law's Empire Prof. Ronald Dworkin has advanced a new theory of law, complex and intriguing. He calls it law as integrity. But in some ways the more radical and surprising claim he makes is that not only were previous legal philosophers mistaken about the nature of law, they were also mistaken about the nature of the philosophy of law or jurisprudence. Perhaps it is possible to summarize his main contentions on the nature of jurisprudence in three theses: First, jurisprudence is interpretive: “General theories of law… aim to interpret the main point and structure of legal practice” (LE, 90). Second, legal philosophy cannot be a semantic account of the word “law.” Legal philosophers “cannot produce useful semantic theories of law” (id.). Third, legal philosophy or jurisprudence “is the general part of adjudication, silent prologue to any decision at law” (id.).

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