Understanding the Rule of Law in the Positivist Doctrine of J. Times

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 analysing the doctrine of the rule of law in this perspective lies in the fact that such a study is able to identify the fundamental ideas of the positivist understanding of 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 A.V. Dicey, the principles of the "inner morality" of law by L.L. Fuller and the position of F.A. von Hayek. The scientific novelty of the article is that for the first time in the Russian legal literature an attempt has been made to reveal the differences between formal and material concepts of the rule of law in British jurisprudence. Raz's arguments about the nature and goals of the rule of law are not generally accepted in English constituional 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 the teachings of Raz relate exclusively to the legal form, which is generally characteristic of the neo-positivism of the XX century. On the other hand, sociological attitudes can also be distinguished in Raz's teaching, which allows to assert that post-Hartian legal positivism combines a number of ideas of "classical" and "sociological" positivism.