General Theory Of Law Research Articles

General theory of law in the integrate context: the continuation of the dialogue: (devoted to the second edition of the manual A. V. Polyakov “General theory of law: problems of interpretation in the context of the communicative approach”)

On the one hand, the author appreciates the integrate and communicative approaches, developed by A. V. Poyakov. On the other hand, the author considers it necessary to continue the dialogue about these approaches with a view to their improvement, as well as the dialogue on the problems and the prospects of the Russian theory of law in the light of these approaches. The reason for the article was the release of the second edition of the textbook of A. V. Polyakov “General theory of law. A course of lectures”. It is examined the relevance of this edition. This relevance is due to persistence in the general theory of law of dominant positions of statism, positivism, as well as the theory of natural law. Both that, and another, and the third significantly limits the legal communication, makes it imperfect. The author examines the philosophical and methodological novelty, as well as the advantages of the A. V. Polyakov`s tutorial in light of accents made the new edition. Chief among those accents is the concept of a full-featured legal communication. It is explored the question, why the communicative theory of law among Russian scientists caused and continues to cause negative assessments and sharp criticism. The reasons for such assessments include a one-sided attention to “postclassical” provisions and ignoring the neoclassical provisions that complement the latter in the works of A. V. Polyakov. The article contains suggestions for improving the integrate and communicative approaches. The most appropriate form of implementation of these suggestions, is an updated version of the system presentation of communicative theory of law in the form of a textbook or monograph. Refs 28.

ИНТЕГРАТИВНЫЙ ПОДХОД В СОВРЕМЕННЫХ ЮРИДИЧЕСКИХ ИССЛЕДОВАНИЯХ

The article gives the methodological analysis concerning the place and role of integrative approach in modern legal studies. The vector of development of integrative concepts of law understanding, considered as a progressive direction of legal thought to overcome the methodological crisis of the general theory of law and the development of an approach adequate to the requirements of the XXI century is demonstrated. The fact of active use of the integrative approach in legal studies, starting with a primary element of the legal system – the rule of law and ending with the area of legal types is established. Attention is drawn to the practice of integration that occurs both within the individual legal institutions, as well as in national legal systems.

Las normas jurídicas: una aproximación desde el convencionalismo jurídico y el análisis económico del derecho

<p>La Teoría General del Derecho ha venido cambiando a lo largo del desarrollo de la Globalización como fenómeno económico y cultural. Desde esta perspectiva el estudio del Derecho también ha ido sufriendo modificaciones tendientes a explorar nuevas formas de compresión y promoción del fenómeno jurídico. En este trabajo se ofrecen dos análisis sobre la forma de concebir el derecho en una sociedad: primero, desde una perspectiva descriptiva, que obedece al convencionalismo jurídico, en la que se presentan algunos resultados de investigación sobre el concepto de existencia de las normas jurídicas, en los que se trata de explicar dos aspectos claves en la creación del derecho, uno social (convencionalismo) y otro sistémico (positivismo); y segundo, desde una perspectiva funcional, en la que se exponen los resultados de una investigación preliminar sobre la operancia de las normas jurídicas al interior de una sociedad a partir de la Teoría del Análisis Económico del Derecho, en la que el papel de las normas jurídicas es visto como precio. Al final se sintetizan algunas conclusiones sobre los puntos comunes de estas dos aproximaciones.</p>

General theory of law: Origins and scope

In this article the author deals with the origins of a theoretical legal discipline called General Theory of Law (Allgemeine Rechtslehre) or jurisprudence as it is called in England. After a short historical survey of the development of attempts to theoretical analysis of law, the author analyses works of certain authors considered to be the founders of this discipline (Austin, Merkel, Korkunov). The conclusion is concerned with the importance and scope of this science.

Confederation and federation in the general theory of law and state and in positive law

Confederation and federation in the general theory of law and state and in positive law

Confederation and federation in the general theory of law and state and in positive law (part one)

Scientific interest in issues concerning federalism, which implies determining the difference between a confederation (a union of confederal states) and a federation (a federal state comprising federal entities) seems to have disappeared after the dissolution of the Socialist Federal Republic of Yugoslavia in 1992, the country which had existed in the period from 1945 to 1992 under different names: the Democratic Federal Yugoslavia (DFY), the Federal Peoples' Republic of Yugoslavia (FPRY), and finally the Socialist Federal Republic of Yugoslavia (SFRY). Although a number of other confederations or federations (notably, the Soviet Union and Czechoslovakia) ceased to exist in the 20th century, history bears witness of the establishment of two important associations of states: the United Nations Organisation (UN) and the European Union (EU). They are highly significant for Serbia, which is a member state of the UN and cherishes close cooperation with the EU. However, the dissolution of the SFRY has not resolved some important issues among its former member states. The basic postulate of these problems is the fact that the Federal Peoples' Republic of Yugoslavia (FPRY as 'the second Yugoslavia') is not the successor state of the Kingdom of Yugoslavia ('the first Yugoslavia') because 'the first Yugoslavia' was never dissolved, i.e. its international personality did not cease to exist; namely, the 'second Yugoslavia' is only the continuator state (ensuring the continuity of the state in the territory of its predecessor), just as the Kingdom of Yugoslavia was the continuator state rather than the successor state of the Kingdom of Serbia. Hence, the problem comes down to the identity of legal subjects. The essential difference between a confederation and a federation are as follows: 1) confederation member states may autonomously decide whether they would act independently abroad (e.g. to maintain diplomatic relations, to conclude international agreements, etc.); on the other hand, federal entities (members of a federation) do not have such an option, or they may possibly be given such an option (to an extend which is considered relevant) by the central (federal) government; 2) the internal borders between confederation member states may be changed only by international treaties adopted at an international conference, whereas the internal borders between federal entities may be unilaterally established and changed by the central government; 3) confederation member states, in principle, have the secession right (ius secessionis) to withdraw from the confederation, whereas federal entities have no such right. It should be noted that a confederation, as a rule, has a capacity of legal personality in international law, just as its individual members. Yet, the difference between the internal state law and public international law is quite relative. Namely, as noted by Toma Živanović, international law (both private and public) is governed by collision norms. While the essence of private international law is conflict resolution involving subjective private rights and obligations arising from the internal law of different states, the essence of public international law is resolution of conflicts between different sovereign states. The basic difference between a confederation and a federation is that each confederation member state is the holder of supreme power (sovereignty), whereas the federal units in a federal state have no such power, given the fact that sovereignty is exclusively vested in the federation (federal state). The supreme power is a de facto matter; it implies the capacity to maintain public order in a specific territory. Relying on the comparative research of different confederations and federations, the author comes to a conclusion that the 'second Yugoslavia' (FPRY) was actually a confederation (despite its official title). However, this conclusion raises the question of borders between its former member states, particularly considering that these (FPRY) borders were not established by any international treaty. Given the fact that there is legal continuity between the Kingdom of Serbia, the 'First Yugoslavia' (Kingdom of Yugoslavia) and the 'Second Yugoslavia' (FPRY), the solution must be sought in the process of restitution, which implies a return to a prior state of affairs that existed before the creation of the (first) Yugoslav state.

Law and equity in Hobbes

Equity is clearly central to Hobbes’s theory of the laws of nature, and it has an important place in his doctrine of the duties and exercise of sovereignty. It is also prominent in his general theory of law, especially as it is articulated in the late Dialogue between a Philosopher and a Student of the Common Laws of England. Still, it is not more central to Hobbes’s ethics, politics and legal philosophy than his concept of justice, or even as central. On the contrary, his theory of justice is presupposed by his views about equity – in the sense that fidelity to a social contract is a condition of adjudication and definitive interpretation of law. Nor does equity contribute to a genuinely anti-authoritarian strand in Hobbes’s political philosophy. It is not as if, between the lines of that philosophy, Hobbes is a liberal. He does not think that the sovereign should exercise self-restraint because liberty and autonomy are good and sovereign self-restraint creates a space for both. Rather, he thinks that heavy-handed rule saps initiative, wealth and other resources from the people, making them less able to participate in or finance military action or internal state security. In other words, heavy-handed rule can make it harder for the sovereign to discharge the principal duty of sovereignty – ensuring public safety.

The principle of expediency in civil proceedings of Ukraine

Problem setting and relevance of the research topic. For a long time theconcept of strict legalism prevailed in the science of civil procedure, which wasreflected in the requirement of exact (strict) and steady execution (enforcement) oflaws by all the authorities and government officials managing the process, as well asby all other participants. The development of society and state sets the science newtasks, and one of them is the concept of equitable law of appropriate and reasonableapplication of the law that provides effective protection of interests of citizens,society and state. Achievement of these objectives promotes the research andintroduction of the category of expediency in civil proceedings, which manifests inthe consideration of specific conditions of use of a legal act (its goals, objectives) inselecting the most optimal variant of solving a legal issue on the basis ofcircumstances of a particular case. Also, there is a reason to believe that therequirements of expediency may serve as a principle of civil procedural law.Recent research and publications analysis. There is no research of theprinciple of expediency in the science of civil procedural law. The said principle wasexamined fragmentarily in scientific publications only in relation to specificinstitutions of the civil process: panel hearing of cases, process of proving, etc. Someaspects of the principle of expediency were the subject of study during theconsideration of law enforcement issues in the general theory of law and issues ofjudicial discretion in proceedings.Paper objective. The objective of this paper is to study the principle ofexpediency in civil proceedings in Ukraine; the definition of this principle,admissible limits of its application and forms of its implementation.Paper main body. The author’s understanding of the principle of expediencyin civil proceedings is substantiated. A difference between the principle ofexpediency and similar concepts is shown.The author proves that: (1) the objective of use of the principle of expediencyis a compromise between the general procedural requirements of the law and specificcircumstances of the case for the achievement of a just court decision; (2) participantsof civil proceedings must relate their actions to the purposes of civil law models ofthe behavior of participants, rights, freedoms and legitimate interests of others, aswell as the society and state; (3) the correct application of expediency provides forthe consolidation of a system of guarantees in the law, which limits the abuse ofdiscretion and corrupt practices.Conclusions of the research. The author’s definition of the principle ofexpediency is proposed as a possibility provided by law to choose the most optimalform and method for resolving civil disputes from those provided for by law for thisparticular case, for the protection of violated, unrecognized or disputed rights,freedoms and interests of individuals, rights and interests of legal entities andinterests of the state.Legislative consolidation and correct application of the principle of expediencyin civil proceedings in Ukraine: (1) reflects the current strategy of the national civilprocedural policies; (2) creates the conditions for a fair and effective application ofthe law; (3) minimizes violations of the procedural law or its slow interpretation; (4)allows to accelerate the proceedings of the case and ensures compliance withreasonable periods for the consideration and resolution of civil cases; (5) optimizescosts and expenses.

La relación entre moral y derecho en el paleopositivismo y el positivismo Jurídico

En este trabajo se realiza una crónica histórica de las relaciones entre moral y derecho, tal como las concibiera el positivismo jurídico, desde los desarrollos de Austin hasta los planteos de Hart, efectuados en su mayor parte a partir de la década del 60, durante el siglo XX. Resulta interesante advertir que, de una posición en la que se negaba toda posibilidad de una metafísica, en la que se postulaba una neutralidad valorativa, como ocurría con las tesis de Austin y de Kelsen, se ha ido desarrollando progresivamente la idea de que una unión entre moral y derecho no sólo es posible, sino que incluso resulta necesaria. Esto resulta particularmente destacable en Hart, autor que ha tenido una concluyente evolución en este sentido. El autor concluye que la admisión, por parte del último Hart, de un positivismo “suave” que incluya cierta idea moral, ha sido una bocanada de aire fresco para la teoría general del derecho que ha contribuido a la adecuada protección de los derechos humanos. Ello ha permitido un avance cierto en el desarrollo de las ideas jurídicas contemporáneas.

In this Issue

In this Issue

Thinning Out Structural Theory

In this article, I argue that we can construct a new kind of account of constitutional doctrine, in which courts implement a handful of abstract norms — for example: “states may not undermine the constitutional structure” — with different doctrinal devices depending on the practical problems of implementation in different contexts. The central insight is that if we look carefully, we can find patterns in the forests of convoluted constitutional doctrine. These patterns suggest deep and long-lived consensuses on certain fundamental constitutional requirements; and we can explain a great deal of constitutional doctrine with these basic consensus norms and jettison standard justifications that make many of these doctrines controversial. This is surprising, and runs against the conventional picture of constitutional theory and practice as dominated by battles between incommensurable theories of value or constitutional interpretation. This account is preferable to conventional views on criteria for selecting among competing theories developed in the philosophy of science: It is consistent with our best general theory of law, legal positivism; it can advance constitutional theory beyond the interpretive debates in which the research program often seems mired; and it is simpler, more capacious, and more fruitful for future research than conventional accounts. At a time when it seems that we are fundamentally divided on nearly every constitutional question, this approach can begin dispelling this appearance by providing an alternative to constitutional theory’s traditional focus on interpretive and value controversies and by countering the increasing politicization of constitutional questions with evidence that we actually agree on important constitutional matters.

Юридический процесс как категория общей теории права

Юридический процесс как категория общей теории права

Towards a Critique of the Vulnerable Subject: Pashukanis and Public Protection

This paper sets out some elements of a historical theory of the contemporary securitization of criminal law and expansion of state surveillance. I begin by demonstrating that recent criminal legislation permits the state to punish those identified as dangerous. Following Jonathan Simon, I argue that this legislative policy of public protection arises from the idea that the victim of crime is the representative subject of law, and that the vulnerability of potential victims provides the normative justification for coercing and punishing persons for their dangerousness. I then investigate why Evgeny Pashukanis, in the final chapter of his General Theory of Law and Marxism, explicitly excluded the possibility that penal law might be used to punish the dangerous. I argue that his account of the legal relation between the subjects of commodity exchange is one-sided. Correcting this one-sidedness demonstrates that the vulnerability of the subject is an inherent aspect of commodity exchange relations. On this basis I sketch a historical account of how the legal ideology has been inverted, displacing the abstractly free individual subject of classical legal ideology with the abstractly vulnerable individual subject of public protection. I consider the implications of this ideological reversal for abolitionist criminal law theory, and conclude by identifying the methodological error that led Pashukanis to his one-sided account of legal relations.

The Concept and Mechanism of Formation of Lawful Behavior, Violations of Human Rights and Law Enforcement

One of the important problems in the general theory of law is the problem of the formation of lawful behavior. The present article is devoted to this issue. In this article, detail the structure and types of lawful behavior, as well as factors influencing the choice of the individual types of lawful behavior. The influence of type of lawful behavior in the human rights violations. It is shown that the proposed model prevention of errors in the implementation of law enforcement involves the social-active behavior of officials.

The Methods of Systems Theory and Systems Analysis are Used in Investigating the Problems of Legal Regulation

The problem of systems analysis in legal studies - is one of the most pressing problems in the general theory of law. In this article we use the technique of systems analysis in the study of problems of legal regulation.

СИСТЕМА ПРАВА И СИСТЕМА ЗАКОНОДАТЕЛЬСТВА

This paper is a continuation of publication of the «Jurisprudence» textbook by Svetlana Vladimirovna Boshno. Law system is a key element of general theory of law. The major fundamentals of its construction are subject matter and method of legal regulation. Of great importance is the division of legal regulation methods into mandative and dispositive ones. The paper articulates the concepts of institute and branch of law demonstrated through various examples. An important classification of branches of law is separation of procedural and substantive, public and private branches of law. Law system and legislation system are considered as interrelated categories that correlate as content and form. A necessary tool for using voluminous legislation is systematization in the following forms: codification, consolidation, incorporation. Codification is considered as a type not only of systematization, but of law-making, too. The reason for this is that in the process of codification, a law-making body makes changes of legislation, as a result of which a new document – a statute, is adopted.

Towards a Typology of Argumentation Based on Legal Principles

In this paper I analyse interpretative argumentation based on legal principles, explore the crite-ria for the assess¬ment of this type of argumentation and relate that to the general theory of law and legal argumentation. Starting from Alexy’s principle theory and its critics I will differenti-ate various forms of argumentation based on legal principles

Problems of Forecasting in Jurisprudence

The problem of forecasting in legal science - this is one of the important problems in the general theory of law. The urgency of the problem stems from the fact that the forecasts allow to anticipate to some extent the situation in the future and thus allow members of the legal process, be clear about the possible development of the legal situation, and the consequences of its decisions. The author distinguishes two types of legal forecasting: the forecast within the forecast horizon and the forecast beyond the forecast horizon In this article, the methodological problems of forecasting, including the definition of the object and the subject of forecasting horizon and boundaries, as well as a technological forecasting map. Finally, we can conclude that the method of legal prediction should include the following elements: the definition of the object and the subject of forecasting, defining the objectives and tasks of forecasting, and building a factor model of the phenomenon, and determination of boundaries and horizons forecasting, and the choice of method of forecasting, predict and evaluation.

Reassessing Corporate Personhood in the Wake of Occupy Wall Street

This article is about corporate personhood, discussed on the backdrop of class consciousness and criticisms of capital generated by the recent and continuing Occupy Movements. I am at first concerned with articulating the evolving jurisprudence of corporate personhood as developed in the United States Supreme Court. Combined with this doctrinal approach, I offer a Marxist criticism of corporate personhood jurisprudence that culminates in a discussion of the Occupy Movements’ logic of resistance to corporate domination in United States law and policy. First, I discuss the role Marxist criticism has played in legal discourse and articulate the importance of a Marxist framework for current legal criticism. Second, I focus on several authors, and their texts, which shape the current struggle against corporate personhood and shed light both on the Occupy Movements and the relationship between law and capitalism. Karl Marx is indispensable to this pursuit and I chose to focus on his discussion of law in The Eighteenth Brumaire of Louis Bonaparte, which I read in close comparison to Evegny Pashukanis’s The General Theory of Law and Marxism. Fernand Braudel’s Civilization and Capitalism provides an analysis of capitalism that illuminates the role of capitalist ideology in early proto-capitalist Europe and is one place to find an historical basis both for the evolution of capitalism and the Occupy Movement’s critique. This historical focus is traced through Charles A. Beard’s An Economic Interpretation of the Constitution where he brings the centrality of capital to government to the field of United States history. This historical critique will help the reader understand the concern corporate personhood causes amongst many people. I offer Beard as a more specific theorization of the role of capitalism to the law in the United States. This historical focus, I believe, is also in keeping with Marx’s interest in the historical. Third, I delve into the evolving jurisprudence of corporate personhood, describing the shifting terrain of Supreme Court decisions and the evolution of the corporation as a person from 1819 to the present. I hope that by beginning before Santa Clara, students, scholars, and activists might enrich their understanding of this complex area of law. Lastly, I analyze the Occupy Movement’s position as a critique to corporate personhood specifically and to capitalism in the legal and economic structures of the United States generally. By analyzing this modern movement, I hope a deeper understanding of the corporate person develops. I also analyze the many resolutions passed at the local and state level urging the end of corporate personhood and position these resolutions as indicators of the Occupy Movements’s success engendering at least quasi-legal change. The point is simple: capitalism has been enshrined in the jurisprudence of corporate personhood and through theoretical critique and analysis of modern practical resistance the jurisprudence of corporate personhood may be better understood and, indeed, critiqued.

Hans Kelsen and His Pure Theory of Law

DR. HANS KELSEN'S formal retirement from his professorship at the end of the current university year will mark another milestone in his varied and significant career. He has survived or escaped from two revolutions and a ruthless tyranny in central Europe. He has held honored and influential academic positions in five nations and on two continents. He has built and rebuilt a systematic philosophy of law and the state which has won him a place among the most distinguished legal-political philosophers of the present century. In this short article I propose to sketch his career and to state concisely what I conceive to be the most valuable contributions to American legal theory which can be derived from his writings. Born in Prague, Czechoslovakia, on October 11, 1881, Hans Kelsen attended the University of Vienna and received his doctorate in law there at the age of twenty-five. After a few years of additional study at the Universities of Heidelberg and Berlin, he became in 1911 professor of public law and jurisprudence at the University of Vienna. Here he remained for nineteen years, the most creative period of his life. As a legal adviser to the Austrian government shortly after World War I he was asked to present several drafts of a constitution for the newly established Austrian republic. One of these drafts was, with a few changes, adopted as the Austrian Constitution of 1920. Professor Kelsen then had the honor and the valuable experience of membership on the Supreme Constitutional Court of Austria (1921-30). His theories of constitutional law, of the relation between law and state, which he developed during and shortly after this period, were based upon ample opportunity for observation of governmental operations. He was Dean of the Faculty of Law at Vienna in 1922-23. He went in 1930 to the University of Cologne, where he became professor of international law and jurisprudence and Dean of the Faculty. With the advent to power of Adolph Hitler he moved to Geneva, where he joined the faculty of the Graduate Institute of International Studies. He came to Harvard in 1941, and while there he wrote for American readers a summary and in part a revision of his earlier legal philosophy. This volume, translated into English,' was published in 1945 as the first volume of the Twentieth Century Legal Philosophy Series, sponsored by the Association of American Law Schools. In that same year he became an American citizen, and accepted an appointment as professor of political science in the University of California (Berkeley). The principal themes of Kelsen's writings have been his theories of law and the state, and his conception of international law. Yet he has written on legal sociology,2 on Plato's changing conception of justice,8 and on The * Cardozo Professor of Jurisprudence, Columbia University. 1 KELSEN, GENERAL THEORY OF LAW AND STATE (Wedberg's trans. 1945) (hereafter cited as GENERAL THEORY). The translation was made by Professor Anders Wedberg of the University of Stockholm. 2 SOCIETY AND NATURE. A SOCIOLOGICAL INQUIRY (1943). 3 Platonic Justice, 48 ETHICS 367-400 (1937-38).