|
Law and Politics
Reference:
Mikhailov, A.M. (2022). Understanding the Rule of Law in Joseph Raz's Positivist Doctrine . Law and Politics, 9, 45–60. https://doi.org/10.7256/2454-0706.2022.9.38771
Understanding the Rule of Law in Joseph Raz's Positivist Doctrine
Mikhailov Anton Mikhailovich
PhD in Law
Associate Professor, Department of Theory of Law and Comparative Law, Moscow State Institute of International Relations of the Ministry of Foreign Affairs of Russia
117279, Russia, Moskovskaya oblast', g. Moscow, ul. Profsoyuznaya, 93, kv. 59
|
antonmikhailov@hotmail.com
|
|
 |
Other publications by this author
|
|
|
DOI: 10.7256/2454-0706.2022.9.38771
EDN: QSBRWA
Received:
14-09-2022
Published:
05-10-2022
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.
Keywords:
legal positivism, rule of law, principles of law, law and order, post-Hartian positivism, Joseph Raz, Lon Fuller, discretionary power, analytical jurisprudence, F. A. Hayek
References
1. Hamson, C. J. (1959). General Report (Les Colloques de Chicago, 8–16 Septembre 1957). Annales de la Faculté de Droit d’Istanbul, 9(12), p. 4.
2. Udartsev, S. F. & Temirbekov, Zh. R. (2015). The concepts of “The Rule of Law” and “Rechtsstaat” (“Legal State”): a comparative analysis. State and Law, 5, p. 7.
3. Waldron, J. (2020). The rule of law and the measure of property. S. Moiseev [trans.]. M.: Publishing House of the Gaidar Institute. p. 61.
4. Bingham, T. H. (2011). The rule of law. London: Penguin UK. p. 67.
5. Radbruch, G. (2004). Statutory lawlessness and suprastatutory law: Philosophy of law. M.: Intern. Relations. p. 234.
6. Fuller, L. L. (2007). The morality of law. T. Danilova & A. Kuryaev (eds.). M.: IRISEN. P. 65–82.
7. Allan, T. R. S. (2001). Constitutional justice: a liberal theory of the rule of law. London, Oxford University Press. p. 331.
8. Bradley, A. W., Ewing, K. D. & Knight, C. J. S. (2014). Constitutional and administrative law. London: Pearson. p. 85.
9. Antonov, M. V. (2018). Theory of “The State and Law”: textbook and workshop for academic bachelor's degree. Moscow: Yurait. p. 90.
10. Cotterrell, R. (2003). The politics of jurisprudence: a critical introduction to legal philosophy. London: LexisNexis. p. 70.
11. Shapiro, S. (2021). Legality. Moscow: Gaidar Institute Publishing House. p. 221.
12. Salmond, J. W. (1902). Jurisprudence or the theory of the law. London: Stevens & Haynes. p. 110.
13. Hart, H. L. A. (2007). The concept of law. E. V. Afonasin & S. V. Moiseev (eds.). St. Petersburg: Publishing House of St. Petersburg University. P. 98–99.
14. Raz, J. (2021). The rule of law and its virtue. M.: Publishing House of the Gaidar Institute. p. 352–383.
15. Kelsen, H. (1930). Der staat als integration: eine prinzipielle auseinanderersetzung. Vienna. p. 34.
16. Antonov, M. V. (2015). The pure theory of law versus natural law. St. Petersburg: Alef-press Publishing House. p. 67.
17. Kelsen, H. (1987). The pure theory of law. M.: Izd-vo INION RAN. p. 153.
18. Hart, H. L. A. (1965). Review of “The Morality of Law”. Harvard Law Review. p. 1281–1296.
19. Bennet, M. J. (2013). Legal positivism and "The Rule of Law": the Hartian response to Fuller’s challenge [Doctoral thesis, The University of Toronto]. p. 56–58.
20. Steyn, J. (2006). Democracy, the rule of law and the role of judges. European Human Rights Law Review. www.ka.edu.pl/download/gfx/ksw/pl/defaultaktualnosci/1162/11/1/rule_of_law_steynwldoc__11-4-09_11_29_pm.pdf.
21. Bogdanovskaya, I. Yu. (1990). Concepts of judicial rule-making in "common law": Problems of bourgeois statehood and political and legal ideology. Moscow. pp. 71–83.
22. Dicey, A. V. (1905). Introduction to the study of the law of the constitution. Moscow. pp. 209–210.
Peer Review
Peer reviewers' evaluations remain confidential and are not disclosed to the public. Only external reviews, authorized for publication by the article's author(s), are made public. Typically, these final reviews are conducted after the manuscript's revision. Adhering to our double-blind review policy, the reviewer's identity is kept confidential.
The list of publisher reviewers can be found here.
A REVIEW of an article on the topic "Understanding the rule of law in the positivist doctrine of J. Three times." The subject of the study. The article proposed for review is devoted to the issues of understanding "... the rule of law in the positivist doctrine of J. Three times." 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 law, while the author notes that "The doctrine of the rule of law is a fundamental component of the unwritten Constitution of Great Britain, forms one of the foundations of British constitutionalism." Various theories of the rule of law relevant to the purpose of the study are being studied. A large volume of scientific literature on the stated problems is also studied and summarized, analysis and discussion with the opposing authors are provided. At the same time, the author notes that "In modern British legal literature, two main approaches to understanding the doctrine of the rule of law have been developed – formal and substantive." Research methodology. The purpose of the study is determined by the title and content of the work: "...J. Raz (1939 – 2022) builds his understanding of the doctrine of the supremacy of law on the position of F.A. Hayek, who understood this concept as the principle of limiting the activities of the government by pre-established public rules, allowing to foresee with great accuracy "what coercive measures will be used by government representatives in a given situation" [9, p. 90]". It can be designated as the consideration and resolution of certain problematic aspects related to the above-mentioned issues. Based on the set goals and objectives, the author has chosen a certain methodological basis for the study. In particular, the author uses a set of universal and general scientific methods of cognition. In particular, the methods of analysis and synthesis made it possible to generalize various approaches to the proposed topic and influenced the author's conclusions. Universal methods played the greatest role. In particular, the author applied a philosophical, worldview approach, which allowed for the analysis and interpretation of the concept of "rule of law" by various scientists. In particular, the following conclusions are drawn: "It is fundamentally important to note that even such a "formal" understanding of the doctrine of the rule of law is based on the idea that the power of the state is not absolute, unlimited, which was characteristic of the early concepts of legal positivism both in England and on the European continent," etc. Thus, the methodology chosen by the author is fully adequate to the purpose of the article, allows you to study certain aspects of the topic. The relevance of the stated issues is beyond doubt. This topic is important in the theory and history of law, from a legal point of view, the work proposed by the author can be considered relevant, namely, he notes that "Starting to reveal his understanding of the doctrine of the rule of law, he claims that it began to be used in a meaning that has nothing to do with its original content." 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 the following: "The positivist attitude of the approach of J. Raza also sees that the principles (requirements) of the rule of law highlighted by him represent an exclusively special legal perspective, relate to the legal form." As can be seen, these and other "theoretical" conclusions can be used in further scientific 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 issues of understanding "... the rule of law in the positivist doctrine of J. Three times." 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 generally meets the requirements for this kind of work. No significant violations of these requirements were found. Bibliography. The quality of the literature presented and used in both Russian and foreign languages should be highly appreciated. 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 conducted a serious analysis of the current state of the problem under study. The author describes different points of view on the problem, argues for a more correct position in his opinion, based on the work of opponents, and offers solutions to individual problems. Conclusions, the interest of the readership. The conclusions are logical and specific (for example, "The formalism of Raza's approach to understanding the rule of law is that he does not consider this doctrine as a means to protect fundamental human rights, individual freedom or social justice"), they are obtained using a generally recognized methodology. 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, which should be typical for legal research. Based on the above, summing up all the positive and negative sides of the article, I recommend "publishing".
|
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.
© 1998 – 2025 Nota Bene. Publishing Technologies. NB-Media Ltd.
