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Law and Politics
Reference:
Gorban, V.S., Gruzdev, V.S. (2022). On the Diversity of "Pure" Doctrines of Law. Law and Politics, 11, 32–43. https://doi.org/10.7256/2454-0706.2022.11.39415
On the Diversity of "Pure" Doctrines of Law
Gorban Vladimir Sergeevich
Doctor of Law
Head of the Department of Philosophy of Law, History and Theory of State and Law, Head of the Center for Philosophical and Legal Studies, Institute of State and Law of the Russian Academy of Sciences
119019, Russia, Moscow, Znamenka str., 10
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gorbanv@gmail.com
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Gruzdev Vladimir Sergeevich
Doctor of Law
Chairman of the Board, All-Russian Non-Governmental Organization “Association of Lawyers of Russia”; Senior Scientific Associate, Department of Philosophy, History, and Theory of State and Law, Institute of State and Law of the Russian Academy of Sciences
119019, Russia, Moscow, Znamenka str., 10
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vsgruzdev@yandex.ru
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Other publications by this author
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DOI: 10.7256/2454-0706.2022.11.39415
EDN: ZZQHPY
Received:
11-12-2022
Published:
18-12-2022
Abstract:
The subject of this study is one of the largest epistemological problems in the history of political and legal thought, as well as the modern theory of the state and the law. We are talking about the attempts of the authors of various historical periods, at least over the past two centuries, to construct a model of the study of the law as a "pure" phenomenon or call for the "purity" of the methods of its cognition. There is a strong opinion in modern legal literature that the "pure doctrine of law" is the creative result of the Austrian lawyer Hans Kelsen. His teaching is often a variant of logical positivism, in which an interpretive model of the law was created, in which one subject corresponds to a special and only method—legal—and all the others were declared superfluous. In fact, in the history of legal thought, attempts have been made more than once to write "pure" doctrines about law long before Kelsen. The scientific novelty of this research lies in the analysis and illumination of new facets of political and legal thought history that previously remained completely unexplored in both domestic and foreign political and legal thought. This article analyzes well-known and previously unknown scientists and thinkers who have developed original concepts of the "pure doctrine of law." In this regard, Kelsen's teaching is justifiably considered one of the many variants of this kind of thought, the uniqueness of which is connected only with the idea of interpretation as a philosophical paradigm, which allowed him to combine well-known legal concepts and techniques within the framework of the methodological doctrine of the law.
Keywords:
history of legal thought, Kelsen, normativism, neo-Kantianism, legal epistemology, pure law, Stammler, logical positivism, Picard, Mehmel
References
1. Nersesyants, V. S. (2013). Philosophy of Law; Institute of State and Law of the Russian Academy of Sciences. Academic Legal University: Moscow.
2. Gierke, O. (1889). Die soziale Aufgabe des Privatrechts: Vortrag, gehalten am 5. April 1889 in der juristischen Gesellschaft zu Wien. Berlin: Springer.
3. Hauser, R. (1968). Norm, Recht und Staat: Überlegungen zu Hans Kelsens Theorie der Reinen Rechtslehre. Wien [u.a.]: Springer.
4. Kelsen, H. (2017). Reine Rechtslehre: mit einem Anhang: das Problem der Gerechtigkeit; unter Berücksichtigung von Kelsens Änderungen anlässlich der Übersetzung ins Italienische 1966 heraugegeben und eingeleitet von Matthias Jestaedt. Studienausgabe der 2. Auflage 1960. Tübingen: Mohr Siebeck; Wien: Verlag Österreich.
5. Kelsen, H. (1920). Das Problem der Souveränität und die Theorie des Völkerrechts: Beitrag zu einer reinen Rechtslehre. Tübingen: Mohr.
6. Mehmel, G. E. A. (1815). Die reine Rechtslehre. Erlangen: Palm.
7. Picard, E. (1908). Le droit pur. Paris: E. Flammarion.
8. Schmalz, T. (1792). Das reine Naturrecht. Königsberg: Nicolovius.
9. Schild, W. (1975). Die reinen Rechtslehren: Gedanken zu Hans Kelsen und Robert Walter. Wien: Manz.
10. Stammler, R. (1906). Systematische Rechtswissenschaft; Rudolph Sohm; Karl Gareis; Victor Ehrenberg; Ludwig von Bar; Lothar von Seuffert; Franz von Liszt; Wilhelm Kahl; Paul Laband; Gerhard Anschütz; ... Berlin ; Leipzig : Teubner.
11. Stammler, R. (1896). Wirtschaft und Recht nach der materialistischen Geschichtsauffassung: eine sozialphilosophische Untersuchung. Leipzig: Veit.
12. Stammler, R. (1902). Die Lehre von dem richtigen Rechte. Berlin: Guttentag.
13. Stammler, R. (1922). Lehrbuch der Rechtsphilosophie. Berlin [u.a.]: de Gruyter.
14. Jacques von Stern. (1959). Thibaut und Savigny: ein programmatischer Rechtsstreit auf Grund ihrer Schriften "Über die Notwendigkeit eines allgemeinen bürgerlichen Rechts für Deutschland" und "Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft". Mit den Nachtr. der Verf. und den Urteilen der Zeitgenossen hrsg. und eingel. Darmstadt: Wiss. Buchges.
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A REVIEW of an article on the topic "On the diversity of "pure" doctrines of law". The subject of the study. The article proposed for review is devoted to the diversity of "... "pure" doctrines of law." The author has chosen a special subject of research: the proposed issues are investigated from the point of view of the theory and history of state and law, while the author notes that "... there are often quite confusing phenomena that, with some negligence in relation to the world history of legal knowledge, broadcast inaccuracies, false or distorted ideas about attempts to contribute to the development legal science". A certain amount of scientific literature on the stated problems is studied and summarized, analysis and discussion with the opposing authors are present. At the same time, the author notes: "... at the turn of the XIX-XX centuries, only lazy did not write about the purity of the legal method. Moreover, in the 19th century, one of the main topics in the history of legal thought and philosophy of law was the search for criteria for the scientific character of jurisprudence." Research methodology. The purpose of the study is determined by the title and content of the work: "One such example is what is traditionally referred to in the literature on the history of legal thought as the pure doctrine of law. This name is attributed to the Austrian lawyer G. Kelsen. This is partly true. Indeed, he wrote an essay in German, which was called "The Pure Doctrine of Law" (1934) [4]. ... But what a paradox! In the history of legal thought, there were already legal writings called "Pure doctrine of Law", "Pure law", "Pure natural law" [8] which appeared much earlier, some of them at the end of the XVIII – early XIX century. There were also works by major thinkers in which the idea of pure knowledge of law, pure the rights were discussed and explained in detail." They can be designated as the consideration and resolution of certain problematic aspects related to the above-mentioned issues and the use of certain experience. Based on the set goals and objectives, the author has chosen a certain methodological basis for the study. The author uses a set of universal, general scientific and private scientific methods of cognition. In particular, the methods of analysis and synthesis made it possible to generalize approaches to the proposed topic and influenced the author's conclusions. The author applied universal methods, i.e. philosophical, worldview approaches expressing the most universal principles of thinking, which made it possible to analyze and interpret the emergence of the state and law with changes in society. In particular, the following conclusions are drawn: "... different definitions were used synonymously, such as "correct law", "successful law", "pure law", "In general, it must be said that many other pure doctrines of law look no less interesting and original, not to mention the fact that that many of the ideas expressed by G. Kelsen were well known before, including such as the understanding of law as a system of compulsory norms, the idea of the basic norm, the interpretation of law as a normative order, the interpretation of legal theory as a formal science, etc. (R. Iering, R. Birling, A. Merkel, R. Stammler and many others)." and others . Thus, the methodology chosen by the author is fully adequate to the purpose of the article, allows you to study many aspects of the topic. The relevance of the stated issues is beyond doubt. This topic is one of the most important in the world and in Russia, from a legal point of view, the work proposed by the author can be considered relevant, namely, he notes "Studying the requirement of so-called pure knowledge in law still seems to be a possible promising task, since there are no studies in which the nature and various interpretations of this have been analyzed and explained requirements". And in fact, an analysis of the opponents' work should follow here, and it follows and the author shows the ability to master the material. Thus, scientific research in the proposed field is only to be welcomed. Scientific novelty. The scientific novelty of the proposed article is beyond doubt. It is expressed in the specific scientific conclusions of the author. Among them, for example, is this: "... and G. Kelsen with his interpretation of law and the meaning of the name "pure doctrine of law". He is by no means the creator of the pure doctrine of law." As can be seen, these and other "theoretical" conclusions can be used in further research. Thus, the materials of the article as presented may be of interest to the scientific community. Style, structure, content. The subject of the article corresponds to the specialization of the journal "Law and Politics", as it is devoted to the diversity of "... "pure" doctrines of law". The article contains an analysis of the opponents' scientific works, so the author notes that a question close to this topic has already been raised and the author uses their materials, discusses with opponents. The content of the article corresponds to the title, since the author considered the stated problems and achieved the goal of his research. The quality of the presentation of the study and its results should be recognized as improved. The subject, objectives, methodology, research results, and scientific novelty directly follow from the text of the article. The design of the work meets the requirements for this kind of work. No significant violations of these requirements were found. However, it should be noted that the work contains many hidden formatting marks. You will have to make quite a lot of edits when publishing the work. Bibliography. The quality of the literature presented and used should be highly appreciated. However, the presence of additional modern scientific literature would show even greater validity of the author's conclusions. The works of these authors correspond to the research topic, have a sign of sufficiency, and contribute to the disclosure of many aspects of the topic. Appeal to opponents. The author has analyzed the current state of the problem under study. The author describes the opponents' different points of view on the problem, argues for a more correct position in his opinion, based on the work of individual opponents, and offers solutions to individual problems. Conclusions, the interest of the readership. The conclusions are logical, concrete "... the idea of the so-called "pure" doctrine of law occupied lawyers and philosophers long before the twentieth century. At the same time, the requirement of cleanliness was explained in different ways. In some cases, it was about abstract laws of law, in others about methodological purity." The article in this form may be of interest to the readership in terms of the systematic positions of the author in relation to the issues stated in the article. Based on the above, summing up all the positive and negative sides of the article, I recommend "publishing" taking into account the comments.
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