Формальная оболочка источника права и проблемы толкования её нормативного содержания (с позиций Ганса Кельзена и современной немецкой теоретической юриспруденции)

Abstract

The article is devoted to the problem of interpretation of objective law by clarifying the content of legal norms, as well as determining the design features of the external forms of their expression. Questions of interpretation of law are considered from the point of view of the normative approach to law, reflected in the doctrine of “pure law” (“reine Rechtslehre”) by Hans Kelsen. The author determines the methodological and regulatory significance of the distinction between legal norms and legal texts in the analysis of formal sources of law. Particular attention is paid to the consolidation of the main methods (modes) of legal regulation in the rules of law and the importance of their determination in the process of interpreting law. The author establishes that the practical interpretation of the content of legal norms is carried out in two main ways: by interpreting the elements of the formal shell of legal norms (elements of the organization of the legal text as a formal source of law) and by interpreting the elements of the internal content of this formal shell. The fundamental difference between legal norms and legal texts in the issue of regulating social relations is associated with the distinction between methods for interpreting their content. In this sense the significance of the difference between "norms-prescriptions" and "norms-judgments" in the concept of Hans Kelsen is emphasized. The article provides examples from modern German theoretical and legal literature, substantiating the need to distinguish between legal norms and legal texts within the framework of normativism. The approaches of Karl Larenz, Bernd Rüthers, Christian Fischer, Axel Birk and Thomas Westing to the definition of the language form of the rule of law - the so-called “bearer of a legal norm” (Rechtsnormträger), the most important types of legal sentences (Rechtssätze) as carriers of legal norms are specified. The article uses authentic scientific texts in German and for the first time the author's translation of a number of such texts into Russian was made. Conclusions are drawn about the importance of delimiting the interpretation of the content of a legal norm from the organization's interpretation of the external means of its expression; about the difference between the prescriptive and descriptive nature of legal regulation, which determines the key difference between legal positivism and non-positivist concepts of understanding law; on the significance of Kelsen's idea of Stufenbau der Rechtsordnung in interpreting the content of individual legal norms.