Gorban V.S., Gruzdev V.S. —
About the realism of legal realism
// Law and Politics. – 2023. – ¹ 10.
– P. 24 - 37.
DOI: 10.7256/2454-0706.2023.10.68817
URL: https://en.e-notabene.ru/lpmag/article_68817.html
Read the article
Abstract: The article discusses the problems of clarifying the nature, content and orientation of legal realism, which has become a popular modern approach to understanding law, primarily related to the history of legal thought in the United States, as well as the works of some Scandinavian authors of the twentieth century. The article demonstrates that legal realism in the interpretation of American and Scandinavian authors often reproduces realism in a peculiar way as a technique of epistemological and ontological nature. As a kind of original paradigm for understanding issues of legal practice and overcoming gaps in legal regulation, American legal realism can be an interesting object of study, however, as a theoretical concept or methodological technique, it has many vulnerabilities, which are especially evident when properly reconstructing the history of legal thought. The novelty of the research lies in highlighting the problems of legal realism from a critical position, both in terms of its name and semantic content. The study draws parallels between the ideas of Marxism about the prospect of the extinction of over-the-top phenomena, such as law, and the slogans of American legal realists about the need to fight theory and conceptualism. New directions and perspectives of the analysis of the history of legal thought of the twentieth century are outlined, which make it possible to more accurately identify the actual scientific and cognitive potential of approaches claiming a realistic understanding of law. It is shown that the requirement of reasonableness and overcoming excessive dogmatism are a cross-cutting theme for the history of legal thought.
Gorban V.S., Gruzdev V.S. —
On the Diversity of "Pure" Doctrines of Law
// Politics and Society. – 2023. – ¹ 4.
– P. 66 - 74.
DOI: 10.7256/2454-0684.2023.4.43813
URL: https://en.e-notabene.ru/psmag/article_43813.html
Read the article
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.
Gorban V.S., Gruzdev V.S. —
The Philosophical and Legal Heritage of V.S. Nersesyants
// Politics and Society. – 2023. – ¹ 2.
– P. 38 - 44.
DOI: 10.7256/2454-0684.2023.2.43810
URL: https://en.e-notabene.ru/psmag/article_43810.html
Read the article
Abstract: This article analyzes the legal views of one of the most interesting and original philosophers of the law from the last quarter of the twentieth century to the beginning of the twenty-first century and Academician of the Russian Academy of Sciences, V.S. Nersesyants. His legal ideas are rooted in ancient philosophy and German idealistic philosophy. Therefore, comparing his legal views with those of the Hegelian philosophy of law, taking into account both Nersesyants' dissertations, is traditional for contemporary connoisseurs of the theory of law. However, as the experience of a more detailed and in-depth analysis shows, interesting points of similarity of his ideas are also connected with other representatives of the German intellectual and philosophical culture of thinking about law. It is the understanding of the nature of the successive and new aspects in Nersesyants' system of legal views that can serve as the basis for the development of his legal views in modern topical and prospective studies. The scientific novelty of the conducted research of Nersesyants's philosophical and legal heritage consists of some significant clarifications of the nature of his ideas, clarifying their connection with the ideas of Hegelian philosophy and the teachings of I. Kant, I. Fichte, G. Mehmel, as well as the later ideas of the neo-Kantian lawyer R. Stammler. At the same time, comparing Nersesyants' legal views and the interpretation of the law in G. Mehmel's Pure Doctrine of Law allows us to present Nersesyants' theory of law as an original version of this doctrine. The article also points to the inexplicability of the concept of justice in Nersesyants' philosophy of law and promising studies of social theory as a prerequisite for the socio-practical doctrine of civilization.
Gorban V.S., Gruzdev V.S. —
The Nature and Main Activities of the American Bar Association
// Legal Studies. – 2022. – ¹ 12.
– P. 1 - 18.
DOI: 10.25136/2409-7136.2022.12.39414
URL: https://en.e-notabene.ru/lr/article_39414.html
Read the article
Abstract: The subject of the study is the problems of the participation of public organizations in ensuring and improving the legal regulation of public relations, as well as the coordination of professional activities of lawyers, analyzed by the example of the functioning of the American Bar Association. The article examines and highlights the issues of the history of the formation of the legal profession and legal education in the United States, the formation of a professional association of lawyers in this country, its status and main activities. Previously, the issues of the organization and activities of the American Bar Association have not been studied in Russian legal science, although the results of such a study can serve as a comparative study of Russian and foreign experience on essential aspects of the functioning of professional associations of lawyers in Russia. The scientific novelty of the study is to highlight the nature and functions of the American Bar Association, which fills a significant gap in the study of foreign experience of professional associations of lawyers. The results obtained are based on original sources, acts and materials published directly by the American Bar Association, as well as commentatory literature. The features of the formation of the legal profession in the USA, the role and place of the association of lawyers, the nature of program documents and contradictory aspects of the implementation of the goals and objectives of this professional association in its practice are demonstrated, including conclusions about the importance of a number of targets that are implemented in the main modules of the activities of this public professional association.
Gorban V.S., Gruzdev V.S. —
On the Diversity of "Pure" Doctrines of Law
// Law and Politics. – 2022. – ¹ 11.
– P. 32 - 43.
DOI: 10.7256/2454-0706.2022.11.39415
URL: https://en.e-notabene.ru/lpmag/article_39415.html
Read the article
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.
Gorban V.S., Gruzdev V.S. —
The Philosophical and Legal Heritage of V.S. Nersesyants
// Law and Politics. – 2022. – ¹ 10.
– P. 15 - 22.
DOI: 10.7256/2454-0706.2022.10.39090
URL: https://en.e-notabene.ru/lpmag/article_39090.html
Read the article
Abstract: This article analyzes the legal views of one of the most interesting and original philosophers of the law from the last quarter of the twentieth century to the beginning of the twenty-first century and Academician of the Russian Academy of Sciences, V.S. Nersesyants. His legal ideas are rooted in ancient philosophy and German idealistic philosophy. Therefore, comparing his legal views with those of the Hegelian philosophy of law, taking into account both Nersesyants' dissertations, is traditional for contemporary connoisseurs of the theory of law. However, as the experience of a more detailed and in-depth analysis shows, interesting points of similarity of his ideas are also connected with other representatives of the German intellectual and philosophical culture of thinking about law. It is the understanding of the nature of the successive and new aspects in Nersesyants' system of legal views that can serve as the basis for the development of his legal views in modern topical and prospective studies. The scientific novelty of the conducted research of Nersesyants's philosophical and legal heritage consists of some significant clarifications of the nature of his ideas, clarifying their connection with the ideas of Hegelian philosophy and the teachings of I. Kant, I. Fichte, G. Mehmel, as well as the later ideas of the neo-Kantian lawyer R. Stammler. At the same time, comparing Nersesyants' legal views and the interpretation of the law in G. Mehmel's Pure Doctrine of Law allows us to present Nersesyants' theory of law as an original version of this doctrine. The article also points to the inexplicability of the concept of justice in Nersesyants' philosophy of law and promising studies of social theory as a prerequisite for the socio-practical doctrine of civilization.
Gorban V.S., Gruzdev V.S. —
O. Holmes in the History of Legal Realism in the USA and the Problem of Typologizing His Views
// Legal Studies. – 2022. – ¹ 10.
– P. 31 - 42.
DOI: 10.25136/2409-7136.2022.10.39100
URL: https://en.e-notabene.ru/lr/article_39100.html
Read the article
Abstract: The article examines the issues of determining the place of O. Holmes' work in the history of legal thought in general and the United States in particular, which remains, according to leading domestic and foreign experts, one of the difficult and cross-cutting problems in highlighting the evolution of the legal-realistic direction. At the same time, significant inaccuracies remain in explaining what constitutes and what includes the so-called legal realism in the United States. A more precise explanation of the problems of this phenomenon in intellectual culture from the end of the XIX century to the present has not only scientific and cognitive significance, but also socio-cultural, as it answers a very significant question about possible directions and trends in the development of modern fundamental jurisprudence. In addition, the question of the specific philosophical and methodological foundations of O. Holmes' legal views remains relevant. The scientific novelty of the research lies primarily in a more precise explanation of the nature and orientation of legal realism in the United States, the role of O. Holmes' views in the formation of this trend in American legal thought. It is shown that this direction is heterogeneous and is only a refraction of specific larger trends in the legal science of the XIX century, as well as the important fact that the influence of pragmatism was not of significant importance, since it is through the unification of this philosophical and psychological direction with the ideas of later realists that legal realism in the USA is transformed into its modern version.