Philosophy Of Law Research Articles

Соотношение индивидуального и коллективного в социальной философии Г. Д. Гурвича

The relationship between the individual and society is the leitmotif of Georges Gurvitch’s work. Beginning from the early Russian-language books on the philosophy of law and ending with the works on sociology published in France and the USA at the final stage of his career, Gurvitch studied the individual person and collective units as interacting sides of the collective social subject. He sought to overcome the struggle between individualism and collectivism which found its ideological expression in the rivalry of the French (Emile Durkheim) and German (Max Weber) schools of sociology. Gurvitch formulated the concept of society as dynamic interaction and mutual determination of the individual and collective unit. In his Russian-language works, written before his emigration, he maintained that it was in the sphere of law that one could determine how the individual and society mutually condition each other and determine the direction of social development. In the late 1920s and early 1930s in his teaching on social law, Gurvitch formulated the concept of sociability which enabled him to focus attention not on the confrontation, but on the interaction of the individual and society. In the concept of “normative fact” he defined the being of society and embodied the dialectical interaction between singularity and multitude. In the late 1930s in his teaching on microsociology, he introduced criteria of sociability, recording individual (intensity of the fusion of individual minds) and collective (the force of social pressure) aspects of the process of social development. Proceeding from these criteria Gurvitch developed a gradation of sociability, expressing it in the scheme “mass — community — communion” which enabled him to analyse the formation of collective units and determine the features of their existence. In his article “Mass, Community, and Communion” (1941) he presented the forms of sociability which enabled him to describe the mutual conditioning of individuals and collective units. Gurvitch’s article spells out the key principles of his philosophy and sociology of law which overcome individualism and collectivism in his account of society.

ПРО ПРЕДМЕТНЕ ПОЛЕ СУЧАСНОЇ ФІЛОСОФІЇ ПРАВА

The concept of the subject field of modern philosophy of law is considered. On the example of analyzing the structure of the course of the discipline in modern textbooks on the philosophy of law, its problematic and interdisciplinary nature is revealed. Attention is paid to the approaches to the formation of its subject (philosophical and legal). The question of introducing the most pressing issues of our present into the problematic circle of the subject of the philosophy of law is raised. In particular, the issues of epistemology of the philosophy of law, explanation and understanding of the basic categories and concepts of law, doctrinal sources, theory of contract, legal responsibility. Emphasis is laid upon strengthening the role of the philosophy of law in justifying and ensuring the value aspects of law.

The Russian idea in the Philosophy of Law

The Russian idea concept is revealed in the article, its manifestation in the Russian Philosophy of Law is shown. It is noted that the concept of the Russian idea was in the center of attention of many figures of Russian culture, who tried to comprehend the essence of Russian history, culture and statehood. The concept of the Russian idea included at least three components: the Philosophy of History, the Philosophy of Culture and the Philosophy of Law. The Russian Phi-losophy of Law has become the logical conclusion of reflections on the history of the Russian people, its national identity and statehood. The Russian Philosophy of Law, its indissoluble connection with the national worldview and Russian statehood are shown in the article. The conclusion is formulated that the Russian Philosophy of Law is a great value, making a signifi-cant contribution to national and world culture.

Carl Schmitt’s philosophy of law

The paper presents a theoretical consideration of the basics of philosophy of law of Carl Schmitt, a famous German lawyer and thinker who is the author of a quite controversial law theory, which to this day will not cease to intrigue the professional researchers. The work approaches Schmitt?s thought in an impartial way, and conducts a constructive dialogue with his theory of law and the state, i.e. his philosophy of law, acknowledging Schmitt?s analytical results in defining the relationship between politics and law, but also criticizing his theory where it shows certain exaggerations. The paper presents a simultaneous research of Schmitt?s theory and Schmitt?s biography, trying to show the existential and political reasons why he tried to conform his theory of state and law to the totalitarian political circumstances in which he lived. The paper finally evaluates the value of Schmitt?s theory, which in a clear, descriptive and logical way distinguished two levels of legal thought, distinguishing the very level of constitution of the political-legal order where law is not, in real historical conditions, separate from politics - and the level of the system of positive legal norms itself. In addition to discussing the basic figures of Schmitt?s philosophy of law, the paper also pays attention to Schmitt?s treatment of particular legal-theoretical issues, such as the issue of the state of emergency and sovereignty.

Socrates' philosophy of law: the basic principles of political philosophy - epistemology, ethical norms in individual and social behavior (philosophical, legal, socio-political analysis)

Socrates' philosophy of law: the basic principles of political philosophy - epistemology, ethical norms in individual and social behavior (philosophical, legal, socio-political analysis)

VICTIM BLAMING IN LIGHT OF STRAWSON’S NATURALISTIC THEORY OF MORALITY

The relevance of the topic of this paper is due to the insufficient study of the influence of Strawson’s naturalistic theory of morality on modern jurisprudence and philosophy of law. This comprehensive paper explores Peter Strawson’s naturalistic theory of morality, delving into the phenomena of victim blaming and its ancient roots in mythological contexts. It begins by assessing Strawson’s fundamental works, “Freedom and Resentment” (1962) and “Social Morality and Individual Ideal” (1961), elucidating how human emotional attitudes and moral accountability underpin society’s moral fabric. The subject of the study is to analyze the ways of using moral argumentation and its boundaries in justifying the phenomena of victim blaming. The purpose of the work is to theoretically examine the connection of victim blaming within modern societal attitudes to ancient mythologies, revealing a profound enduring narrative thread. The novelty of the topic is due to the lack of studies in the educational and scientific literature on the specifics of the argumentation of victim blaming in modern legal philosophy, the need to rethink traditional ideas about the philosophical grounds of the criminal law, especially how the belief in divine will and a deity’s alignment with the perpetrator of violence, embedded within archaic societies, resonates within the victim blaming paradigm. By examining the concept of sacrifice in both well-known and obscure myths, the paper explains the purposeful nature of victimhood, and its societal implications. It further evaluates the philosophical and cultural dimensions of violence in archaic societies, deconstructing how violence was considered divine in such contexts. The intersection of victim blaming and moral responsibility is then examined, particularly how they influence societal attitudes and legal frameworks. The research methods characteristic of analytical jurisprudence, including those related to the use of methods of logical and linguistic analysis, as well as special legal methods (formal legal method of interpretation of regulatory prescriptions) were used. The paper concludes with a synthesis of these insights, reflecting on their implications for understanding Strawson’s naturalistic theory of morality. It offers significant conclusions about the complex relationships between morality, victim blaming, and societal norms, emphasizing the theory’s utility in comprehending the nature and impacts of victim blaming.

Jangir Abbasovich Kerimov – man, scientist, citizen

The article is about Jangir Abbasovich Kerimov. An attempt is being made to reveal the defining features of his personality, to tell about him as a true patriot of his Homeland and an outstanding legal scholar. The main stages of his life path are traced; significant historical events that had a significant impact on him are described; meetings and relationships with famous people who inspired him, primarily the largest scientists of the XX – early XXI century, are described; his reflections on the fate of Russia and, of course, the fundamental postulates of the scientific and theoretical concepts proposed by him are analyzed. The article considers D.A. Kerimov’s significant contribution to the development of the subject, structure, functions, categorical apparatus of the General theory of law and the state, which is an organic totality of three interrelated and continuously interacting parts: Sociology of Law, Philosophy of Law and the doctrine of the state.

Theoretical and legal science: a modern approach

The article reveals a new approach to the understanding of theoretical and legal science. It is argued that the theory of state and law was originally formed as a complex discipline that includes at least four components: historical, philosophical, sociological, dogmatic. The article analyzes three main components: dogmatic, sociological, philosophical. It is argued that each component of the theoretical and legal science (dogma of law, Sociology of Law, Philosophy of Law) has its own subject and its own methodology. The specific features of social science (including legal science), its subject and methods are indicated

R. Pound. Freemasonry and the Law / transl. from English by E.L. Kuzmishin

The review considers book “Freemasonry and Law” by Roscoe Pound, translated into Russian by E. L. Kuzmishin, Candidate of History. Brief biographical information about the author is given, as well as information about his participation in Freemasonry. Pound’s importance in the development of the sociological school of law is emphasized. The scientific contribution of this book to modern Russian legal literature in the areas of theory of state and law, Philosophy of Law, history of legal and political teachings is noted.

The significance of N. Ya. Danilevsky’s ideas for the formation of modern Philosophy of Law

The article analyzes the philosophical and historical ideas of N. Ya. Danilevsky and their significance for the development of cognitive capabilities of the Philosophy of Law. The leitmotif of the research is the idea that the theory of cultural and historical types developed by N. Ya. Danilevsky remains the property of only philosophers and historians, but is undeservedly overlooked by lawyers. The main reason for this situation is the complexity of the historical and philosophical reconstruction of his theory of cultural and historical types in the context of the analysis of the state and law. In addition, the article draws attention to the role of a one-sided Eurocentric understanding of the philosophy of the history of political and legal thought and the history of state and law. The ideas of N. Ya. Danilevsky are accompanied by significant distortions and falsifications in Western literature, primarily American and German. The methodology of the research is based on the use of traditional methods of analyzing political and legal doctrines, first of all their structural division, accompanied by a conditional separation of the logical and conceptual (theoretical) part and the concrete historical part.

Theoretical and legal science: continuity and prospects of development in the XXI century

The article presents a systematic analysis of the General theory of law and the Philosophy of Law in a historical retrospective; on the examples of European and Russian experiments, the fundamental nature of these sciences is revealed. The contribution of Russian lawyers to the development of theoretical and legal science and legal education is emphasized.

Jeanne Marie Gagnebin e a crítica de Walter Benjamin ao direito

Abstract Among the production of the philosopher Jeanne Marie Gagnebin dedicated to Walter Benjamin’s thought, there are two texts in which Gagnebin seems to work more directly with Benjamin’s reflections on law: “Myth, Law and Justice in Walter Benjamin” and “State of exception: Between catastrophe and necropolitics”. These texts discuss the theoretical-political and historical foundations of the critique of Law made by the German philosopher. This article intends to realize a brief comment on these texts; and also to indicate, based on these texts and other moments in her work, that how Gagnebin interprets Walter Benjamin's philosophy of history brings us important elements for the task (still unfinished) to build a critical perception on law and especially on the historical regime underlying it. Based on this proposal, this article is divided into 3 parts. The first aims to comment the essays previously mentioned; the second to differentiate the reading suggested by Gagnebin from some influential interpretations of Walter Benjamin's work in theory and philosophy of law; and the third to discuss how the interpretation proposed by the Swiss-Brazilian thinker of Benjamin's texts on law is based in a more integrated reading of the historical criticism proposed by the German philosopher.

Methodology of the Neo-Kantian Philosophy of Law: the transition from “due” to “being”

The article shows the influence of Kantian philosophy on jurisprudence. From the position of neo-Kantianism, law and the state are not objective “things in themselves”, but transcendental logical constructions of the cognizing subject. Law is twofold: as a subject of logic and as a social phenomenon included in social relations as their regulator. In the concept of law, rational and irrational elements are distinguished. According to neo-Kantian methodology, the state can be the subject of research both nomothetic (the state is a recurring fact) and idiographic (the state is a unique phenomenon) sciences. It is shown that in the Russian Philosophy of Law of the 19th - early 20th centuries of the neo-Kantian orientation, special attention was paid to the problems of finding a social ideal, the connectedness of the state by law, the theme of a legal state, the basis of which is a self-sufficient person. The ethical and legal basis of the neo-Kantian Philosophy of Law in Russia was Kant’s idea of individual freedom, its autonomy, of the external protection of all members of society by the state with the help of the rule of law and non-interference in the inner world of a person. In the late 19th - early 20th centuries, Kant’s philosophy was extrapolated to the conditions of the historical reality of that period in the form of requirements for the legal provision of individual rights and freedoms in a legal state.

The Framework of Law Impacts in Philosophy of Law and Justice: How the Certainty and Justice Understood?

<p class="MsoNormal" style="text-indent:0in">This paper put an analysis on the
 autonomy principle among law practitioners. The principle and values usually
 use as the basic concept for justice understanding. The justice concept is adopted
 to enforce the law in the fair trial process should not just understand to be
 the main goal. There must be a wide broad approach segmented the social and
 cultural frameworks with the conceptual analysis. This article is also concerned
 for searching the reason relating to the paradigmatic practical calculations to
 constitute the rule known as the reasonable rationale. The essential conditions
 of what is practically  managing the
 guide with the rule application remarks just revealed. These remarks hopefully
 can bring a clear explanation relating to the law practitioners pragmatic view
 of speech act implications for debating the provisions. The standard case of
 rules is formulated to protect and to fulfill the people's rights rather
 rigidly fixing its range of application. There are powers of the people is
 nevertheless limited decisions of legal validity concerning the substance of
 the law. Dissatisfaction with the understanding of law practitioners for making
 the reliable concept relating to the relationship between the law and powers of
 people is underpinned by the ideal of popular sovereignty influence to be
 understood. It is similar to the argument that consisted of the legal system for
 the rule of law to be existed. There is a necessity to confirm and build some
 mechanism of certain social practices among public officials and law
 practitioners. There must be clear perspectives on how and why the government
 and their policies absolutely cannot avoid the political biased and the
 certainty of law urge to build the certain facts of law for the people to be
 able to make law at all.<o:p></o:p></p>

The Framework of Law Impacts in Philosophy of Law and Justice: How the Certainty and Justice Understood?

<p class="MsoNormal" style="text-indent:0in">This paper put an analysis on the
 autonomy principle among law practitioners. The principle and values usually
 use as the basic concept for justice understanding. The justice concept is adopted
 to enforce the law in the fair trial process should not just understand to be
 the main goal. There must be a wide broad approach segmented the social and
 cultural frameworks with the conceptual analysis. This article is also concerned
 for searching the reason relating to the paradigmatic practical calculations to
 constitute the rule known as the reasonable rationale. The essential conditions
 of what is practically  managing the
 guide with the rule application remarks just revealed. These remarks hopefully
 can bring a clear explanation relating to the law practitioners pragmatic view
 of speech act implications for debating the provisions. The standard case of
 rules is formulated to protect and to fulfill the people's rights rather
 rigidly fixing its range of application. There are powers of the people is
 nevertheless limited decisions of legal validity concerning the substance of
 the law. Dissatisfaction with the understanding of law practitioners for making
 the reliable concept relating to the relationship between the law and powers of
 people is underpinned by the ideal of popular sovereignty influence to be
 understood. It is similar to the argument that consisted of the legal system for
 the rule of law to be existed. There is a necessity to confirm and build some
 mechanism of certain social practices among public officials and law
 practitioners. There must be clear perspectives on how and why the government
 and their policies absolutely cannot avoid the political biased and the
 certainty of law urge to build the certain facts of law for the people to be
 able to make law at all.<o:p></o:p></p>

V.S. Nersesyants as a philosopher of law: from Soviet to Post-Soviet

The article analyzes the philosophical and legal ideas and ideas of the famous scientist, thinker, jurist of the last quarter of the XX - beginning of the XXI century, Academician of the Russian Academy of Sciences V.S. Nersesyants. The ideas of ancient philosophers and representatives of the German transcendental-idealistic philosophy had a great influence on the formation and evolution of his legal views, the concept of jurisprudence formulated by him. In this regard, the comparison of his legal views with the ideas of Hegel’s Philosophy of Law, taking into account both dissertations of V.S. Nersesyants, is quite traditional for connoisseurs of the concept of jurisprudence of our contemporary. However, as the experience of a more detailed and in-depth analysis shows, interesting points of similarity of his legal ideas and the nature of their justification are also connected with other representatives of the German intellectual and philosophical culture of discussing the main problems of law and jurisprudence. Understanding the nature of successive and new aspects in the system of legal views of V.S. Nersesyants can serve as a basis for the development of his legal views in modern topical and prospective studies. The article offers some significant clarifications of the content and nature of the philosophical and legal heritage of V.S. Nersesyants, traces the connections of his concept of jurisprudence with the ideas of not only Hegelian philosophy, but also the teachings of other legal philosophers, as well as the later ideas of the neo-Kantian lawyer R. Stammler, the interpretation of law in the “Pure Doctrine of Law” of the Kantian G. Memel, and not only G. Kelsen, which allows us to present the theory of law of V.S. Nersesyants as an original version of this doctrine. The study also demonstrates that the concept of justice in the Philosophy of Law of V.S. Nersesyants has remained one of the unexplained, and promising studies of the foundations of social theory in the doctrine of civilization are also indicated.

Philosophy of Law and modern legal education

The article discusses the issues of the value and priorities of the Philosophy of Law for modern legal education. A brief analysis of the scientific and educational literature providing the discipli-nary integrity and possibilities of the Philosophy of Law from the standpoint of knowledge of the “ultimate foundations” and the legal nature of state-legal phenomena is carried out. There is an increase in the scientific and practical interest of jurisprudence in the spiritual and moral foun-dations of law as a priority in the political and legal strategies of the state.

The Philosophy of Law in Russia as the ideological and theoretical basis of the national legal ideology: history, modernity and prospects

The article examines the Russian Philosophy of Law, reveals its theoretical and value potential to be the basis of the modern national legal ideology of Russia. The views of K.S.ºAksakov, N. Ya. Danilevsky, N.A. Berdyaev, I.A. Ilyin are analyzed, who, according to the author, managed to show the essence of the Russian national character and Russian statehood in their works. It is argued that the Russian Philosophy of Law, which reached its apogee in the XIX – first third of the XX century, is not only not outdated at the present time, but should become the basis of modern theoretical research in the field of national state-building, the formation of domestic and foreign policy of the Russian state. The system-forming nature of the Philosophy of Law for fundamental legal sciences is revealed.

PROTECTION OF VALUES OR MANAGEMENT BY REPRESSION. ON THE FUNCTIONS OF CONTEMPORARY CRIMINAL LAW

The study is devoted to an attempt to determine whether the analyses carried out at the level of the philosophy, theory and analysis and synthesis of criminal law, as well as the approaches presented in various criminological theories can be used in debates about the goals and functions of modern criminal law. The analyses carried out are based on the reconstruction of the current state of criminal law, dominated in many countries by penal populism. The coincidence of the repressiveness characteristic of the populist approach subordinated to the implementation of the concept of extreme deterrence, with the position of the legal elite as to the goals and functions of criminal law, illustrates the state of tensions and crises in which contemporary repressive law has found itself. The image of the public debate, characterized by the unambiguity of positions combined with the lack of perceptual openness to the views presented by the proponents of opposing approaches, provides a premise for the search for rational and verifiable arguments in disputes over the shape of criminal law. Given the limitations of the analysis and synthesis of criminal law in the sphere of disputes about values, an anthropological vision and a model of social structure make it reasonable to search for premises that order the debate about criminal law on other levels. In this regard, the study presents systemic approaches presented in the philosophy of criminal law combined with an attempt to justify that, in fact, complementary elements can be seen in them. Complementing the philosophical perspective is the plane of criminal law theory, on which one can also find elements that are part of the universal approach to repressive law. Adding to this picture of modern criminological theories, the study presents the thesis that modern criminal law serves multiple, sometimes opposing functions justified by reference to other assumptions and models of social structure. The multiple functions of modern criminal law make it unreasonable to refer to the dichotomy capturing alternatively the functions and goals of criminal law either as an instrument for protection of socially valuable values or as a tool of management by repression. The text seeks to justify the position that modern criminal law performs, in part, both functions indicated above. At the same time, there are opportunities to rationally limit the use of criminal law instrumentally as a tool of management by repression in the interest of power and certain social groups. The science of criminal law, encompassing the following planes: theoretical and philosophical, can be a plane that provides premises and arguments to help resolve contemporary dilemmas. In particular, it seems that the approaches presented in the science of criminal law and criminology are not so much of an opposing and radically competitive nature, but are in fact harmonizing, containing a number of complementary elements in a complex set of assumptions and claims that make up a holistic approach to the criminal law system.

Kant’s anthropology and political realism

An upholder of liberal political values, Kant opposed the tradition of political realism on several levels, one of them the anthropological foundations of politics. Kant’s position was moderate: like liberals, he believed in the evolution of freedom; like conservatives, he underscored the difficulties confronting a person on that way and dissuaded from taking hasty action. Realists deem these difficulties either insurmountable or surmountable to such a modest degree that they will not allow the overcoming of anarchy, uncertainty and the conflict-prone nature of international relations. Some of Kant’s contemporaries criticised his philosophy of politics and law from positions close to political realism and conservatism in the broadest sense. I analyse and compare the arguments on both sides of this controversy. Kant pictured “practitional politicians” who point out the weakness of human nature to justify the wilfulness of rulers’ breach of agreements whilst denying the need for liberal reforms. I demonstrate that the obscurantist and pessimistic views of “practising politicians”, described by Kant, are very close to the arguments put forward by Friedrich von Gentz and August Wilhelm Rehberg, who had openly criticised Kant’s idea that political practice should be orientated towards an abstract theory and optimistic assumptions. Thus Kant responded to their criticism implicitly. Yet, both parties to the debate are universalists: Kant, on the one hand, with his concept of respect for right common to all people, and realists, on the other, with their idea of the moral weakness of humans.