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El paradigma del Derecho como argumentación exige dejar atrás el positivismo jurídico y asumir una nueva teoría que le sirva al jurista para justificar respuestas correctas en casos difíciles que involucran principios y exigencias valorativas. Las tesis centrales del positivismo jurídico son vistas como irrelevantes y obvias, y se les critica que impiden el desarrollo de una teoría del Derecho adecuadas a las condiciones del Estado constitucional. Este trabajo propone una manera de entender las tesis centrales del positivismo jurídico, en torno a la dimensión institucional del Derecho, que justifique la relevancia de esta concepción jurídica en el marco de los estados constitucionales. The paradigm of law as argumentation requires leaving behind legal positivism and assuming a new theory that serves the jurist to justify correct answers in hard cases that involve principles and value demands. The central theses of legal positivism are seen as irrelevant and obvious and are criticized as preventing the development of a theory of law adequate to the conditions of the constitutional state. This paper proposes a way of understanding the central theses of legal positivism, regarding the institutional dimension of Law, which justifies the relevance of this legal conception within the framework of the constitutional states.

Este artículo corresponde a la traducción al castellano de la entrevista biográfica realizada al Profesor Dr. Stanley L. Paulson el 1 de junio de 2021 en la Universidad de Kiel (Alemania). El Profesor Paulson, nacido en 1941 en Fergus Falls (Minnesota, Estados Unidos), estudió filosofía en la Universidad de Minnesota y en la Universidad de Wisconsin-Madison, donde obtuvo los títulos de B.A., M.A. y Ph.D. A continuación, estudió derecho, obteniendo el título de J.D. en la Universidad de Harvard. Comenzó su carrera docente en 1972 al ser nombrado profesor del Departamento de Filosofía de la Universidad de Washington en San Luis. En 1983 fue nombrado también profesor de la Facultad de Derecho. En el año 2000 asumió la cátedra “William Gardiner Hammond” en la misma Facultad. Además de las becas del Fondo Nacional para las Humanidades, la Comisión Fulbright, la Sociedad Max Planck, la Fundación Rockefeller y la Fundación Alexander von Humboldt, recibió el Premio de Investigación de la Fundación Humboldt en el año 2003. Actualmente es investigador principal y codirector del Centro de Investigación Hans Kelsen del Instituto Hermann-Kantorowicz de Investigación Básica de la Facultad de Derecho de la Universidad de Kiel (Alemania). Con casi 200 publicaciones en inglés y alemán, traducidas a siete lenguas diversas al inglés, el Profesor Paulson ha centrado su investigación académica en la filosofía y la teoría jurídica europeas de los siglos XIX y XX. Un gran número de sus contribuciones están dedicadas a la filosofía jurídica y la teoría constitucional de Hans Kelsen. Es miembro del comité asesor de las Hans Kelsen Werke, editadas en Friburgo y compuestas por más de 30 volúmenes que contienen toda la obra de Hans Kelsen, y es también corresponsal internacional del Instituto Hans Kelsen de Viena. El Profesor Paulson es reconocido internacionalmente como una autoridad en la historia de la filosofía jurídica positivista en Europa. This article corresponds to the Spanish translation of the biographical interview conducted with Professor Stanley L. Paulson on June 1, 2021, at the University of Kiel (Germany). Professor Dr. Stanley L. Paulson, born in 1941 in Fergus Falls (Minnesota, USA), studied philosophy at the University of Minnesota and the University of Wisconsin-Madison, taking the B.A., M.A., and Ph.D. degrees from these institutions. He then studied law, taking the J.D. degree from Harvard University. He began his teaching career in 1972, appointed in the Department of Philosophy at Washington University in St. Louis. In 1983 he was also appointed professor at the School of Law, and in 2000 he assumed the William Gardiner Hammond Chair at the School of Law. Along with fellowships from the National Endowment for the Humanities, the Fulbright Commission, the Max Planck Society, the Rockefeller Foundation, and the Alexander von Humboldt Foundation, he received the Humboldt Foundation’s Research Award in 2003. He is presently a senior researcher and co-director of the Hans Kelsen Research Center, a unit of the Hermann-Kantorowicz Institute for Basic Research in the Faculty of Law, University of Kiel (Germany). With nearly 200 publications in English and German, translated into seven foreign languages, Professor Paulson has focused his scholarly research on nineteenth- and twentieth-century European legal philosophy and theory. A large number of his contributions are devoted to the legal philosophy and constitutional theory of Hans Kelsen. He is a member of the advisory committee of the Hans Kelsen Werke, edited in Freiburg and comprising in over 30 volumes Kelsen’s entire oeuvre, and he is also an international correspondent of the Hans Kelsen Institute in Vienna. Professor Paulson is internationally recognized as an authority on the history of positivist legal philosophy in Europe.

The article is devoted to the study of the concept of legal values, their classification. Analysis of legal literature led to the conclusion that legal values are considered only in line with legal positivism, which have a faade in relation to the subject of law. According to the author, anthropological approaches - classical, non-classical and post-non-classical - can become a milestone in a conceptually different understanding of the values of law. In this regard, the purpose of the paper is to conduct a study of the values of law in line with anthropological research programs. To achieve the goal, the following tasks were set: 1) to describe the classical (neoclassical), non-classical and post-non-classical anthropological programs; 2) to formulate the concept of legal values and truth within the framework of three paradigms of legal thinking; 3) to classify and rank the values of law. As a result of the study, the following conclusions were made: The legal value in the classical (neoclassical) anthropological paradigm lies in the safe-guarding and protection of inviolability of the biopsychophysiological integrity of the organism, which identifies an individual as a physical person. Therefore, the law has an objectified and alienated from the individual subject character. The value of law in non-classical anthropological discourse is imperative-attributive experiences (legal psyche) or intentional acts of consciousness that constitute legal reality, with which a person is identified - a legal personality. The post-non-classical model of cognition is focused on the discovery of the true essence of a person through identification with a legal being (or pure consciousness), which is an absolute value and creator of transpersonal and extra-social legal reality.

This essay discusses how the character and nature of international criminal law influence the way it is studied. By providing a historical review of its intellectual origins, it shows why international criminal law’s disciplinary identity remains under the influence of positivistic principles. In going beyond international criminal law, this essay also critically discusses why some hold a multidisciplinary analysis of international law in contempt and exposes the challenges of placing legal scholarship in distinct categories by labelling legal academics as positivists, doctrinalists, practice-oriented, policy-driven, or as multidisciplinarians. This piece will describe how international criminal law is being studied, how scholarship developed, and whether the value of the research lies in its relevance for the practice before international criminal courts. In discussing the pitfalls of pure doctrinal or multidisciplinary research, it weaves together theoretical considerations beyond the traditional positivistic paradigm with a plea to study international criminal law under different sensibilities and disciplinary protocols

The American legal philosopher Lon L. Fuller profoundly advanced a sophisticated morality conception of law through his argument for thesis of Legal Morality (LM). In particular, he adumbrated a novelist idea of “ internal morality of law” that would enable the transformation of the sophisticated morality conception of law into a conception idea of law and morality connection while simultaneously providing an explanation of the new and fresh thesis of legal morality. Contrary to the common (and mostly legal positivism) view, Fuller argues that it is not only the case that the (external) morality determines what the level of any connection between law and morality, rather it is also the idea of law in itself regenerates the idea of morality (internally). However, it is argued that in spite of the fact that Fuller suggested a sophisticated account of interconnection between law and morality, he fails to develop the complexities of the (morality) connection to the law in systemic way. What does he miss in his argument of the connection between law and morality? This study will advance the view that there are more than one way to make a connection between law and morality. Some of these connections can be named here: the morality of duty, the morality of legal subject, the morality of legal official, the morality of legal end, the morality of legal content and the internal and external morality of law. This study argues that each type of these connections between law and morality importantly has many effective outcomes in term of conception and implication of law, which Fuller did not tell us. In Fuller’s work, one can grasp the soundness of this connection in a variety levels. Yet, surprisingly to Fuller’s own works, this study will show that Fuller’s thesis of legal molarity must be expanded and justified on the different ground. In doing so, this study argues not only to make sense of Fuller’s legal morality, but it also redirects the systemic way to bring all pieces of Fuller’s claim of legal morality together and to seek the rationality beyond the legal.

In this paper I argue that Kant’s political and juridical philosophy justifies a type of normative legal positivism that implies specific notions of law and legal freedom which determine and restrict the sphere of action of judges and jurists. Finally, I defend that, according to Kant’s practical philosophy, the normative connection between justice and law is not supposed to be carried out at the juridical level, as a meta-juridical theory, but at the political one, making it a meta-political theory.

This entry is devoted to a survey of the main analytical conceptions of legal science. The focus will be in particular on (1) Alf Ross’s legal realism and his neo-positivistic approach to legal science; (2) Norberto Bobbio and the Italian analytical legal philosophical school, which firmly tie legal science to language analysis; (3) Herbert Hart and the analytical philosophy of ordinary language, and, eventually, (4) Ronald Dworkin and the interpretative turn.

The small essay “Topics and Jurisprudence”, which was published in 1953 by a then obscure assistant professor of the Mainz University Theodor Viehweg, boldly challenged the self-complacency of the corner stone of legal positivism, i.e. the thesis of the hierarchical structure of legal norms. Moreover, Viehweg maintained that legal thinking is sooner inductive and problematic, than deductive and abstract. Viehweg is even eager to dismiss the term “problem” in favour of the more stringent term “aporia”. This word rather means a dead-end problem with inherent contradictions, demanding nonetheless an obligatory solution. The author compared the main theses of legal topics with the original views of Aristotle, who had laid the philosophical foundation of topics as a tool of philosophical investigations. The author concludes that in order to rejuvenate the theoretical basis of jurisprudence Viehweg tried to sublimate the “topical method”, which according to Aristotle had to play a rather modest role as a “one more” didactic tool.

According to German legal philosopher Gustav Radbruch, laws that are substantively unjust to an intolerable degree should not be regarded as legally valid, even if they were promulgated according to stipulated procedure. Radbruch’s Formula (as his position has been termed) contradicts the central tenet of legal positivism, according to which the existence of laws does not necessarily depend on their merit.1 While some legal positivists suppose that legal invalidity based on the content of particular laws is a central tenet of natural law theory,2 natural law theorists such as John Finnis opine that the lex injusta non est lex3 maxim has been no more than a subordinate theorem of classical natural law theory.4 In Finnis’s view, unjust laws give rise to legal obligation “in a legal sense.”5

A bicentenária filosofia do direito de Hegel ainda contém importantes contribuições para o debate jusfilosófico contemporâneo. Essas contribuições surgem, por exemplo, ao se traçar contraposições ao juspositivismo, uma das principais correntes contemporâneas da filosofia do direito, especialmente no que diz respeito à figura de Kelsen. Enquanto o juspositivismo advoga por uma visão objetiva sobre o direito, o mais próximo possível de uma ciência, elegendo a norma como seu objeto e afastando o direito de demais esferas da vida social, especialmente a moral e a política, Hegel propõe uma visão sistemática, onde o direito é, ao lado da moralidade e da eticidade, parte do espírito objetivo, de todo o universo prático racional. A partir dessa compreensão, Hegel é capaz de explicar o direito positivo como resultado de uma evolução conceitual que pretende a universalização do direito abstrato, o qual, por sua vez, tem início na personalidade enquanto expressão mais básica da liberdade, sendo sua efetivação a categoria da propriedade. Essa universalização apenas pode ser atingida na esfera das relações éticas, quando o direito se torna positivo. Mesmo assim, Hegel ressalta que o direito positivo nem sempre é condizente com o direito racional, pois o direito positivo em determinado contexto não necessariamente corresponde à evolução da autoconsciência da liberdade. Tendo em vista a sistemática conceitual por detrás do direito, Hegel consegue superar algumas das dificuldades que o juspositivismo possui no que diz respeito à crítica de normas que claramente ferem a liberdade humana.

Criticizing the modern, rationalistic temptation to legislate on language, this article argues that issues of 'political correctness' are an aspect of the eternal problem of definitions in law. This problem has in its turn profound connections, on the one hand, with the need, entirely human, for a correct (not one-sided or arbitrary) relationship with reality; and, on the other hand, with the insidious attempt – which is all the same typically human – to deny reality, with its conflicts and ambiguities, and to replace it with a false, less challenging reality of 'objective' certainties. In law, the problem of definitions has historically followed many and different itineraries; this article briefly traces some, trying to show that the ideal of an objective definition – an ideal epitomized in the 'norm' idealized by legal positivism – has always co-existed, in the legal experience, with the different ideal of a subjective definition (dialectical, controversial, negative, refutative), of which the ancient maxims of equity, the regulae iuris, offer a model. The problem of legal definitions in law is then a matter of forms of reason that confront each other throughout the history of law, the one investing on a calculating and instrumental rationality, the other relying on a more porous and flexible reason. In the legacy of this second point of view – which, the article maintains, has more than one analogy with the paths of contemporary Feminist 'Radical' Thought – antidotes can be found to the temptation to legislate on language, which is risky. If objectivity tries to suppress subjectivity, in fact, this is in the name of the illusion, that problems that trouble the human conditions can be fixed, defined, solved once and for all. It is instead the open texture of these problems, which cannot be defined once and for all, that encourages the work of language and thought. And these latter are the resources for a living together really capable of freedom and equality, of change and future.

The article analyzes ideas of representatives of the directions in the Positivist School of Criminal Law and Criminology, namely: criminal-anthropological (biological), criminal-sociological (sociological), bio-sociological (positivist) direction. The research indicates that the main feature of the criminal-anthropological (biological) direction lies in the fact that its representatives considered the criminal as a special kind of the human race and a special abnormal creature endowed with certain physical and mental anomalies. The commission of a crime for such a being is a natural necessity.Therepresentatives of the criminal-sociological (sociological) direction mainly skeptically assessed the conclusions of supporters of the anthropological direction, who looked for the causes of crime precisely in social factors, noted the importance of the interaction of social, political and economic factors and expressed confidence that it would be useless to try to influence crime without changing the social conditions that lead to crime. The main ideas of representatives of different directions in legal positivism in criminal law and criminology are considered and their significance for the present is determined. It was established that the socio-philosophical methodology is characterized by a close connection between speculative methods of cognition and empirical researches. It is noted that the impact of public lifeon all spheres is one of the most effective ways to combat crime. All authorities, as well as scientists, should identify and analyze the existing links between modern social changes and criminal processes taking place in society. A comprehensive analysis of the causes of crime can help reduce crime rates

This paper comes up with the idea that to implement the values of justice concerning law enforcement, the paradigmatic transformation from legal positivism to legal progressivism is highly needed. This is because the paradigm of legal progressivism contains compassion, empathy, determination, which are the indicators that contribute to promoting a sense of justice for the community. The historical record of law enforcement in Indonesia has known several names of law enforcers who have made progressive breakthroughs in overcoming the positive legal deadlock, for example, Bismar Siregar, Adi Andoyo Sutjipto, Asikin Kusumaatmadja (Judge); Baharudin Lopa (Prosecutor); Hoegeng (Police) and others. The solution offered in grounding the idea of progressive law is to make it a progressive legal movement.

Rainer Knopff's scholarship on Canadian constitutionalism has offered some of the most trenchant criticism of the exercise of judicial review under the Charter, yet his theory has largely been misunderstood (as has that of his frequent co-author F. L. Morton). This article exposes two prominent critiques of Knopff's constitutional writings as straw man arguments and provides a republican account of his constitutional theory. The first straw man argument is that Knopff supports a majoritarian or populist conception of direct democracy. This claim is belied by Knopff's embrace of representative democracy and institutions structured to encourage reflexive deliberation. The second straw man argument is that Knopff is a moral rights skeptic. Knopff's rights skepticism is a legal skepticism about the determinacy of many rights that is merely a function of his inclusive legal positivism. The article concludes by reflecting on the republican lessons that Knopff's constitutional scholarship continues to offer, including how holding legislatures responsible for settling reasonable disagreements about legally indeterminate Charter rights might help counteract the twin threats of populism and juristocracy.

The existence of legal positivism that prioritizes legal certainty is expected to resolve various cybercrime criminal cases. One of them happened in the case of the Mojokerto City Government site hacking. The case has troubled the community, especially the city government of Mojokerto. The research method uses normative juridical research with a legal approach, concepts and collects primary legal materials in hacking rules and information technology in cybercrime crime. The study results found that the existence of legal positivism in the crime of cybercrime positions the law as statutory regulation and law as an order containing sanctions. In-Law No. 19 of 2016 concerning amendments to Law No. 11 of 2008 concerning Electronic Information and Transactions contains orders and prohibited actions. The actions taken by the suspect are deemed unfair if there are no sanctions or punishments because, according to legal positivism, justice that is legality (statutory regulation) is justice that prioritizes legal certainty. The law in force in article 46 paragraph 3 of Law No. 19 of 2016 concerning Amendments to Law No. 11 of 2008 concerning Electronic Information and Transactions must be imposed on the suspect in the Mojokerto City government website hacking case.

Moral values in legal science are important. However, the flow of law sees a variety of moral values. This paper aims to see the position of moral values in the science of law. Legal positivism separates strictly between law and morals. According to him, there is no law other than the command of the authorities. Even extreme identifying the law (Recht) as the law (wet). Legal positivism activities are aimed at concrete problems, which are different when compared to natural law thinking which engages itself with the validation of man-made law. For adherents of natural law theory, an unjust law is not law. there is an absolute relationship between law and morality. the two cannot be separated, so the law must refer to moral principles.

Introduction. The article presents a study of the legal category of "impartiality" of a judge in the administration of justice. Until recently, the concept of impartiality was identified exclusively with reason (rationality), where there was no place for the study of emotions. There is a point of view in legal positivism that the term "impartiality" is a state of consciousness in which the possibility of expressing emotions is excluded. However in recent decades Western scientific publications have revived interest in the knowledge of emotions in law which bypasses the consideration of the emotional theory of ethical phenomena by L. I. Petrazhitsky. In this regard the author of the article, first, conducted a study of the concept of impartiality of a judge based on the analysis of international documents and the jurisprudence of the European Court of Human Rights (ECHR). Secondly, the author reviewed the Russian legislation which regulates the features of the term "impartiality" in the administration of justice. Third, the term "impartiality" was analyzed through the prism of the main concepts of emotions in law. Materials and methods. The methodological basis of the study is characterized by the following methods: 1) general (dialectics); 2) general scientific (analysis, synthesis, system and functional approaches); 3) private scientific (formal-legal and comparative-legal); 4) problem-theoretical reconstruction. Results of the study. The novelty of the study lies in the fact that the author of the article not only analyzed the formal features of the term "impartiality" based on the jurisprudence of the European Court of Human Rights but also studied the nature of impartiality through the prism of modern approaches to emotions in law and classified them. As a result of the study, the following conclusions are made, which, among other things, are of practical importance: 1) impartiality in making the justice can be objective and subjective; 2) the basis for impartial decision-making by a judge can be: a) exclusively, the reason (formal-rationalistic approach);b) the reason and emotions with the dominance of the former and the negative consequences of the latter for the process of making a legal decision (irrational approach); c) reason and emotions, which are not opposed to each other, but interact with each other as equivalent components in the formation of a judicial decision (cognitive approach); d) imperative and attributive emotions, which are the source of law (ethical and legal approach). Discussion and conclusion. It is proved that the impartiality of the judge's personality is formed not only by intellectual, moral, and volitional spheres, but also by emotional ones, where the latter includes conscientiousness and receptivity. It is precisely the judges' behavior, their decision-making, that determines their beliefs based on conscience, which is the source of true law, called intuitive law.

Rejecting all knowledge claims concerning right and wrong in matters practical James Buchanan concurred with legal positivism that invalid law cannot be identified by its substantive content but only by an inherited defect in its factual creation. Beyond correct creation Buchanan proposed as a quasi-natural law constraint that unanimity in the shadow of individual veto power must at least be conceivable if a norm is to be law. The emerging hybrid conception of constitutional law is symptomatic for Buchanan’s never-ending but ultimately futile efforts to incorporate Kantian ideals of interpersonal respect into constitutional economics without imposing them as personal values.

An exploration of the connections between law, science, and truth, this paper argues that ‘truth’ is an evolving, rather than fixed, concept. It is a human creation, and the processes, or standards, by which it has been evaluated have changed over time. Currently knowledge production is anchored in the natural sciences but reproduced and validated by philosophical rationalisation. There are two problems with this technique of knowledge verification (or ‘veridiction’). First, the natural sciences are not, in fact, practiced according to their ideal forms; and second, the Queen of Sciences, physics, underwent two fundamental paradigm shifts in the early nineteenth century. General relativity and quantum theory entered the scene, sending ripples throughout science, and the social sciences. These changes too have been slowly absorbed by philosophy, giving rise in part to the postmodernist and deconstructivist movements. I chart this gradual evolution of truth and knowledge production in physics and in law and analyse the resistance it has faced from both classical law and classical physics. Finally I argue that this resistance could be overcome, if legal theory, and especially legal positivism, would embrace a more accurate and up-to-date understanding of the science it purports to examine and emulate.

El escrito busca proporcionar un análisis crítico, desde el punto de vista de un positivismo jurídico analítico y realista, de la filosofía y metafilosofía del derecho defendidas por Scott Shapiro en su libro Legalidad. Contiene cuatro partes. La primera parte ofrece una crítica de la ambición del libro de ofrecer una teoría “metafísica” que descubre “verdades filosóficas” acerca de “la naturaleza fundamental del derecho”. La segunda parte contiene una crítica del uso que Shapiro hace de las “verdades obvias” al construir su teoría. La tercera parte considera críticamente, en dos pasos, la concepción del positivismo jurídico de Shapiro. La cuarta, y última, parte, pone en tela de juicio la solución que Shapiro ofrece para la “paradoja de la autoridad”.

El objetivo de este ensayo es discutir una paradoja sobre los orígenes del derecho, que Shapiro analiza ampliamente en su libro, señalándola como una prueba clave para toda la teoría jurídica: la Paradoja de la Autoridad (PA). En resumen, por un lado, alguien tiene el poder de crear normas jurídicas solo si una norma existente le confiere ese poder, pero, por otro lado, una norma que confiere el poder de crear normas jurídicas solo existe si alguien que tiene el poder de crearla la crea. En este trabajo voy a tratar de mostrar (i) que una vez que adoptamos algunas distinciones, la paradoja de Shapiro se desvanece; (ii) que todos los positivistas jurídicos solucionan de la misma manera la paradoja en cuestión, y que esto se sigue directamente de la definición de derecho ofrecida por el positivismo jurídico; (iii) que todos los problemas, conectados con la paradoja y antes mencionados, han sido ya resueltos por la teoría iuspositivista del derecho.

Los autores analizan las partes de Legalidad que abordan el problema de los desacuerdos jurídicos y la conexa teoría de la interpretación (y metainterpretación) desplegada por Shapiro con el fin de superar tal dificultad. La cuestión de los desacuerdos jurídicos, junto con las principales asunciones del positivismo jurídico, hace necesario, de acuerdo con los autores, prestar cierta atención a las versiones contemporáneas de tal concepción teórico-jurídica. En consecuencia, la estructura del artículo es la siguiente: en el primer párrafo, se trata el positivismo en el modo en que normalmente es explicado en la teoría del derecho angloamericana; en el segundo párrafo, los autores presentan su propia explicación del positivismo jurídico metodológico, deudora en gran medida de las obras de Bobbio y Ross; en el tercer párrafo, se resume el argumento de los desacuerdos y se analizan atentamente las dificultades que supuestamente plantea al positivismo jurídico; esto lleva al cuarto párrafo, donde la concepción de Shapiro de la interpretación jurídica y su consiguiente respuesta a semejante desafío son examinadas; en el quinto y último párrafo, se extraen algunas conclusiones, siendo la principal de ellas que la sofisticada teoría de la interpretación de Shapiro es, por un lado, supererogatoria y, por otro, infiel al auténtico espíritu del positivismo metodológico tradicional, al mezclar aspectos descriptivos y prescriptivos de la interpretación jurídica.

Se reúne una serie de consideraciones acerca de la discusión general. En especial se pretende contextualizar la discusión acerca de Legality como una discusión enmarcada en disensos más amplios sobre cultura jurídica, la definición de positivismo jurídico y el rol de la teoría del derecho.

Shapiro works out a version of legal positivism taking as its starting point Hart’s practice theory of law. Some serious limits of Hart’s practice theory of norms concern the conception of legal obligation and normativity of law. In this paper I analyze the limits of Hart’s conception of legal normativity and I appraise whether the planning theory of law indicates the correct direction for overcoming them. To anticipate the conclusion, my effort is to show that Shapiro replicates Hart’s mistakes on this subject-matters. The paper is divided in three main sections. First, I will present briefly a critical reconstruction of Hart’s conception of normativity, reconstruction which is partially different from that given by Shapiro in Legalidad. I will analyze either the original conception of normativity sketched out by Hart in The Concept of Law and the (partially) different conception which can be drawn by the Postscript. Then, I will deepen the conceptions of legal obligation and authority of law associated with the planning theory of law. Few concluding remarks will be devoted to some Shapiro’s assumptions on legal positivism.

In this article, I approached the concept of natural law, starting with the analysis of some of its first definitions developed by Cicero. Moving toward recent history, I demonstrated the usefulness of this concept in the context of dealing with legal systems specific to dictatorial regimes. Next, I presented arguments proving the existence of natural law and I determined its content, referring to the general principles included in it, which underpin positive law, and to its importance in terms of ensuring respect for fundamental rights. In the final part of this article, I analyzed the confrontation between jusnaturalism and legal positivism in order to highlight even more clearly the features of natural law. Last but not least, I stressed the importance of choosing a jusnaturalistic legal mindset in order to prevent and fight against legal systems that are manifestly contrary to natural law.

The relevance of the study of judicial reasoning in public law is related to the challenges of modern litigation, which require new approaches to the construction of a court decision. This is also due to the constitutional reform in Ukraine, in particular the latest amendments to the Constitution of Ukraine in the field of justice. The emergence of the priority issue of constitutionality led to the rupture of the system, where the protection of fundamental rights in a particular issue was essentially ensured in accordance with the case law of the European Court of Human Rights. The Constitutional Court of Ukraine always uses the decisions of the European Court of Human Rights to form its own legal positions, after which they actually become a substantive element of the motivating part of the decision of the Constitutional Court of Ukraine. It is concluded that regardless of whether the decision of the European Court of Human Rights has been ruled on Ukraine or not, it is a source of constitutional law of Ukraine.

The time in which we live is not easy. On the one hand, the latest technological advances create an illusion of unprecedented progress. On the other hand, it appears that millions of people in the world are deprived from the opportunity to use these advances in their everyday lives. Moreover, it appears that these technological advances can cause more problems than they help to solve. This situation also applies to the legal sphere where the law is gradually turning into a neutral, depersonalized technique. Mostly restrictive, repressive and estranged from the will of individual social associations, such law (law as a mere technique) generates rather radical responses in the form of different "shadow" (unofficial) norms, institutions and practices. In this paper the problem of a possible clash of the official positive law with shadow social orders is analyzed. Trying to find the way out of the false dichotomy between the technologized official law and fundamentalist rules of some narrow communities, the author discusses the origins and weak spots of the contemporary legal order .

This paper addresses the two main Wilfred J. Waluchow’s research interests on philosophy of law, namely Inclusive Legal Positivism and the Constitutionalism presented in The Living Tree. The author provides us with a critical exposition of Waluchow’s main theses and a proper background where Waluchow’s philosophy is set, as well the main objections and challenges that his philosophy has to be responsive for.

This paper first recapitulates the objections by H.L.A. Hart to the ways in which John Austin’s command model of law obfuscated the importance and the very existence of power-conferring laws. Although those objections are familiar in the world of contemporary legal philosophy, their insightfulness is highlighted here because they contrast so sharply with Hart’s own neglect of power-conferring laws at some key junctures in his theorizing. In the second half of this paper, I ponder a few of the junctures where Hart failed to heed the admonitions which he had so deftly leveled against Austin.

RESUMEN: En el presente trabajo, con base en las teorias iusnaturalistas y del positivismo juridico, se busca ofrecer un breve acercamiento al desarrollo que han tenido a traves del tiempo las tesis mas importantes en torno al problema de la relacion entre derecho y moral, hasta llegar a lo que actualmente es denominado antipositivismo juridico, pues el objetivo de este documento es presentar un analisis y exposicion de las aportaciones de esta corriente de pensamiento a la teoria juridica contemporanea, para lo cual, se analizan las propuestas de Ronald Dworkin y Robert Alexy, en especial de la tesis de los principios, y su relevancia en la interpretacion y aplicacion de la ley. ABSTRACT: In this work, based on natural law theories and legal positivism, I seek to offer a brief approach to the development that the most important theses have had throughout time regarding the problem of the relationship between law and morality, arriving at what we now call legal anti-positivism, the objective of this document is to present an analysis and exposition of the contributions of this current of thought to contemporary legal theory, for which the proposals of Ronald Dworkin and Robert Alexy are analyzed, specially the thesis of the principles, and its relevance in the interpretation and application of the law. Keywords: Natural law theories, legal positivism, legal antipositivism, moral, thesis of principles.

Jeffrey Goldsworthy recently claimed that parliamentary sovereignty itself expresses or endorses legal positivism. This claim inverts the relationship between law and legal theory, according to whi...

Pemikiran Critical Legal Studies menjadi penting untuk memahami realitas sosial dan tata hukum untuk membentuk komitmen dan penyatuan hukum yang berdasarkan pada teori hukum berbasis praksis sosial untuk merekonstruksi sturuktur sosial yang timpang dalam pembentukan Peraturan Daerah. Pemanfaatan utama teori hukum CLS adalah kekritisannya terhadap doktrin dan tata hukum serta nilai-nilai dan komitmen untuk mencari suatu potensi hukum dan sosial yang transformatif berdasarkan praksis sosial, sehingga mempengaruhi pembentukan Perda dalam memberikan kontribusi terhadap stabilitas dan mengabadikan tatanan sosial yang ada. Kelemahan dari pemikiran hukum kritis (CLS) adalah apabila penggunaan kritik ini terjebak pada suatu mainstream yang tanpa berujung, maka kritik ini hanya sebatas wacana dan akan selalu termarginalkan yang di pinggir sistem sosial serta dianggap makhluk aneh yang harus disingkirkan. Relevansi teori hukum CLS terletak pada kritik objektif dan formalisme hukum terkait Pasal 14 UUP3 mengenai Perda sebagai instrument otonomi daerah yang menjadi ambigu karena konsep penyelenggaraan otonomi daerah di generalisasikan oleh postivisme hukum melalui kaedah hukum berjenjang. Hal tersebut sangat timpang dalam pembentukan Perda di ranah empiris yang merupakan hasil dari proses yang sarat dengan berbagai muatan, nilai, dan kepentingan para aktor/ elite politik yang terlibat di dalamnya.

In this essay, I argue for a view that inclusive positivists share with Ronald Dworkin. According to the Moral Incorporation Thesis (MIT), it is logically possible for a legal system to incorporate moral criteria of legality (or ‘grounds of law’, as Dworkin puts it). Up to this point, the debate has taken the shape of attacks on the coherence of MIT with the defender of MIT merely attempting to refute the attacking argument. I give a positive argument for MIT. I begin with an explanation of the logic of establishing possibility claims, such as MIT. At the outset, it is worth noting that the logic of establishing possibility claims is very different from the logic of establishing contingent descriptive claims or necessary claims. For this reason, some explication of the relevant features of the semantics of modal logic will be necessary here. Once the structural framework is adequately developed, the argument for MIT will be grounded on the strength of a thought experiment of a surprisingly simple kind. Indeed, the argument is inspired by a Razian argument for the possibility of a legal system without coercive enforcement machinery; on his view, a society of angels could still have a system of law without any coercive machinery. My argument will possess two theoretically important qualities that are also possessed by Raz’s powerfully simple, but ultimately unsuccessful, argument.

The essay explores the world of Jurisprudential Legal ethics, which ever closer claims the status of jurisprudential issue deeply woven into the contemporary debate about the concept and the nature of law. The paper briefly explores the leading jurisprudential theories about the lawyer’s role, in attempt to outline that the conceptualization of the lawyers’ role and the nature of their professional commitments are both a function of the concept of law we adopt, mainly focusing on the “positivist turn” in legal ethics. In the conclusive section the paper I address the abuse-of-law filtes thesis of lawyering. Such reading moves from the idea that legal rules do not provide about their own application, thus there is room for a general practical discourse that regards the scope of advocacy and provides a proper role for legal ethics that would be independent from the bare respect of the settled law.

Most often, the principles of law in specialized literature are understood as the “initial principles”, “ideas” and “provisions” of law. It seems that such conclusions could only be made from the standpoint of legal positivism, which restricts essentially “all” law only to the norms of labour law contained in national legal acts. The article makes a different conclusion: ontologically homogeneous elements are synthesized from the position of the scientifically substantiated concept of integrative legal understanding, first of all, the principles and norms of labour law contained in a single, developing and multilevel system of forms of national and (or) international labour law implemented in the state. With this theoretical approach, the principles of law can be controversially referred to as quite vague “principles,” “ideas,” and “positions”. In support of their position, the authors of the article present several vivid examples of application of the Ruling No. 21 of the Plenary Session of the Supreme Court of the Russian Federation on June 2, 2015 “On Certain Issues that Arose in the Courts when Applying Legislation Governing the Work of the Head of the Organization and Members of the Collegial Executive Body of the Organization”. The article provides an overview of ideas about the principles of law and their change in the pre-revolutionary, Soviet and modern periods. The authors emphasize that the special principles of national labour law are derived from the fundamental (general) principles of both national and international law which, by their nature, constitute undeniable law (jus cogens) binding on law-making and law-enforcement agencies as well as officials. The article advocates the position that the special principles of national labour law are the fundamental, primary elements of the labour law system that independently regulate labour relations in order to specify the norms of labour law.

The purpose of this article is twofold: to give scientific reasoning for the objectives-based interpretation as a special kind of legal norms’ teleological explication and to apply it for essence, purposefulness and advisability determination of criminal procedural norm on the entitlement of a prosecutor with powers of investigation judge according to Art. 615 of Criminal Procedural Code of Ukraine and exercising them in an area (administrative territory) of enacting the measures on the provision of the national security and defence, resistance and deterrence of armed aggression. The methodological basis of the research was general scientific and special methods, namely dialectical, hermeneutic, teleological, logical, historical, formal legal (legal positivism) and natural law (value-based) methods. The dialectical method was the basis for the work; it allowed the author to consider in complex the achievement of objectives of criminal procedure by the Ukrainian legal system. The hermeneutic method was used to define the meaning of the new text of the analysed legal provision. The historical method was manifested in the attempt to discover prerequisites of amendments to the criminal procedural norm. The article has both general legal and criminal procedural, applicable in practice scientific novelty: the author provided his own method of interpretation of criminal procedural provisions, that was named the «objectives-based» method; the author proposed methodological grounds and instruments for it, which originates from the notions on the purpose of Law and human rights in general, and on the purpose of Criminal Process in particular; the author applied the objectives-based interpretation on the provision on the entitlement of a prosecutor with powers of investigation judge and exercising them in an area (administrative territory) of enacting the measures on the provision of the national security and defence, resistance and deterrence of armed aggression in order to solve legal uncertainty of its essence. As a conclusion of conducting the research, the author focuses on the beneficial effects of applying the objectives-based method of interpretation of criminal procedural provisions, its simplicity, promptness and expediency; the author comes to the conclusion that the procedure for restricting fundamental human rights and freedoms introduced in the Criminal Procedural Code of Ukraine in recent amendments may possibly be inconsistent with relevant provisions of the Constitution of Ukraine; finally, expressed in this article ideas can be used in further scientific and expert researches on the issues of legislative improvement of the criminal procedures in the extraordinary situations – on the legal regime of emergency or martial law. Keywords: objectives-based interpretation; objectives of criminal procedure; ratio legis; ratio juris; Joint Forces Operation; purposefulness of law; advisability of criminal procedure; norms implementation; International Humanitarian Law; prosecution in International Armed Conflict; restriction of rights and freedoms; constitutionality; martial law; boundaries of security zones.

At the beginning of its development, the science of international law was inextricably linked to the doctrine of natural law. The latter was seen as the basis of international law. The very problem of the foundations of international law became acute in the 19th century, when the prevailing legal positivism abandoned the idea of natural law. All proposed solutions were based on the idea of self-obligation of sovereign states. Some of them questioned the very existence of international law, while others required the introduction of explicit fictions. In an attempt to solve this problem, the pure theory of law developed by Hans Kelsen and his students proposed a theory of a hierarchical structure of international and domestic law. The relationship between the levels of the normative system is based on the empowering norms, which transfer the property of legal validity to the lower norms created on their basis. The concept of validity corresponds to the concept of efficacy of the norm. The interrelation of validity and efficacy of legal norms in international law differs significantly from their interrelation in domestic law; the study of this relationship in Kelsen’s theory was the main purpose of this study. The structure of international law according to Kelsen is a pyramid, the highest level of which is customary international law, based on the basic norm of international law that establishes the binding force of international custom. In this case, from the point of view of the pure theory of law, a special role in international law is played by the principle of effectiveness — recognition of the existing factual state of affairs as legitimate. The greater importance of this principle in international law is explained by the absence of a centralized system of coercion in the latter because decentralized legal order does not allow the application of organized sanctions in instances of violation of international legal norms.

This article is an introduction to a very original legal theory developed by a contemporary American legal scholar Kenneth Einar Himma. His theory can be conditionally called as Metaphysical Conceptualism, this fully corresponds to both his methodological approach (conceptual analysis and metaphysics of the properties of legal concepts) and the claims he defends. The analysis proposed by Himma made a great theoretical contribution to the discussion of the intersection of morality and law and brought the discussion between inclusive and exclusive legal positivism to a new qualitative level. And although his theory is not without flaws, it is certainly of serious scientific interest for understanding the current state of discussions about law and morality.

In recent years, scholars have focused increased attention on the idea of personalized law. It suggests the creation and enforcement of individualized legal norms based on the algorithmic processing of data in the similar manner companies personalize their services using Big Data tools. The article aims to define the role and position of personalized law and to evaluate the risks and consequences of personalization in the context of the emerging digital economy. The research analyses the theoretical grounds of personalized law and justifies its interpretation from the perspective of Hart’s legal positivism striking a balance between the sociological facticity of law and normativism. The study reveals the content, essential features of personalized law and defines its concept. The author analyses the correlation of personalized law with fundamental rights, thus evaluating the risks and consequences of personalization. Particularly, the errors of the approximation of a person’s actual will could occur as part of algorithmic decision-making thereby resulting in discrimination. It appears reasonable that at the beginning, algorithmic personalization should cover only those domains which have the minimal risk of the violation of fundamental norms and of intrusion into the field of social debates. The study underscores, that the transparency of the public sector and of the data-based algorithmic decision-making process is crucial in the context of personalized law, but nevertheless could debase its idea due to opportunistic practices. The issues identified during the research lead one to suggest that professionals who have both legal education and expertise in computer sciences would be in demand in the future. Such professionals could perform the role of independent experts and neutral authority monitoring compliance with data subject’s rights.

The article provides an overview of complex and ambiguous relations of the philosophy of law and legal scholarship with science, as well as tries to cover their similarities and differences. Consequently, the article provides critical analysis of contemporary radically opposite approaches to the interpretation of this issue present in philosophical and legal academic literature. The article criticizes both the approaches denying the alliance between the science and philosophy of law thus reducing it to ideology only, as well as those viewing philosophy of law an academic discipline principally different from legal scholarship attributing the latter to “legal dogmatics” only. Contemporary postmodern (postnonclassical) ideas about science (scholarship) focusing on inseparable links between cognitive, anthropological (applying human as the unit of measurement) and axiological sides of the reflection of reality do not provide grounds for sharp differentiation between the object of the study and its subject, which is the basis for the abovementioned approaches. In fact, they are relatively autonomous elements of whole, integrated developing systems including law generally, as well as legal scholarship and the philosophy of law. The abovementioned arguments provide basis for the article to differentiate common features of the philosophy of law with modern legal scholarship (those being the existence of creative subject, common goal, application of rational and logical evidence in objectivation of рhilosophical and legal hypotheses, concepts, theories etc.), as well as difference between them (e.g. instability of its relation to practice, frequent absence of actual real life corresponding features, special cognitive activities built on self-analysis, ideas and special world perception (philosophical reflection), tight connection to art in addition to science etc.). These ideas get proof from the short analysis of science and art correlation specifics pointed out in major modern philosophical and legal concepts (doctrines of natural law, legal positivism, sociological jurisprudence and their variations). The article stipulates that they have to be judged not by application of scientific criteria of “true-false” but by application of their interdependence concept. Finally, the author stipulates that unlike legal scholarship being more international than national, the ideas of legal philosophy (including those accepted widely by different nations) are viewed through the prism of national traditions, national legal culture, mentality and cognitive ability of the nation, thus accepting solid national features, providing also grounds for differentiation of the philosophy of law from legal scholarship thus making it a special method of world perception being distinct from science.

Introduction. The term “legal state” can be found in numerous international and national legal instruments, as well as in the works of contemporary scholars and scholars of previous generations. This word combination is widely used by politicians and lawyers. Its various applications dictate the need for a definition of the essence of the “rule of law” and its manifestations. Theoretical Basis. Methods. From the position of scientifically grounded concept of integrative legal understanding, according to which only principles and norms of law contained in a single, multilevel and developing system of national and international law forms implemented in the state, the article concludes that it is theoretically debatable that in the special literature, international and national legal documents and legal acts two separate concepts of “rule of law” and “legal state” exist. Results. The notion of the rule of law has a long history of development. In the relevant context, the concept appeared as early as in the writings of Plato and Aristotle. At present, there are also many scientific works devoted to the study of this issue, which is still relevant. The article analyses the notion of the “rule of law” from the perspective of legal positivism as well as the scientifically grounded and scientifically debatable concept of integrative legal understanding. Based on the results of the study, the author concludes that the concept of “the rule of law” has evolved in different historical epochs under the influence of social, economic factors, emerging scientific views, but is still incomplete. From the perspective of the scientifically based concept of an integrative legal understanding, the author believes that it is theoretically more reasonable to view the rule of law as the goal of regulating legal relations in a legal state, self-limited not only by “internal” law, but also limited by “external” law. Discussion and Conclusion. Concepts of the rule of law according to the types of legal understanding of the researchers can be classified into concepts developed on the basis of: legal positivism (‘thin’ concepts; scientifically debatable concepts of integrative legal understanding, arguably synthesising both the right and the wrong); scientifically substantiated concepts of integrative legal understanding. According to the latter approach, a valid legal state is not only self-limited by “internal” law, but is also limited by “external” law, and theoretically more precisely by the principles and norms of law contained in a single, evolving and multilevel system of national and international law forms.

Partindo do pressuposto de que a ciência jurídica é um campo complexo e abrangente, concebido não apenas em sua perspectiva legal, mas, também, como objeto do campo cultural, ultrapassando limites do positivismo jurídico, o presente artigo tem por objetivo discutir as dimensões epistemológicas das relações fronteiriças. Para tal, empreendemos uma reflexão acerca das acepções do termo fronteira, buscando demonstrar que uma visão ampliada das relações fronteiriças no âmbito do Direito pode favorecer a adoção de um compromisso ético no exercício profissional, o cotejamento de doutrinas e jurisprudências, bem como uma compreensão assertiva dos/nos diferentes contextos sociais. O nosso estudo se constitui por uma pesquisa teórica, organizada em dois momentos. No primeiro momento, problematizamos a constituição polissêmica do termo fronteira, com vistas a demonstrar as potencialidades de sentidos. No segundo momento, abordamos a dimensão multicultural das relações fronteiriças e sua relevância para a ciência jurídica. A partir do estudo empreendido, ressaltamos que as relações fronteiriças podem trazer contribuições substanciais para o campo do Direito, uma vez que é possível ampliar posicionamentos, dinamizar interpretações e promover a justiça, evitando abordagens redutoras e dissociadas da engrenagem social.

Submitted by Leticia Alvarenga (leticiaalvarenga@fdv.br) on 2021-02-18T14:17:01Z No. of bitstreams: 1 COURA - Problemas da teoria das fontes do direito.pdf: 398107 bytes, checksum: e323ece570405abf554d1c59c6e80771 (MD5) Approved for entry into archive by Ana Paula Galdino (repositorio@fdv.br) on 2021-06-28T17:05:26Z (GMT) No. of bitstreams: 1 COURA - Problemas da teoria das fontes do direito.pdf: 398107 bytes, checksum: e323ece570405abf554d1c59c6e80771 (MD5) Made available in DSpace on 2021-06-28T17:05:26Z (GMT). No. of bitstreams: 1 COURA - Problemas da teoria das fontes do direito.pdf: 398107 bytes, checksum: e323ece570405abf554d1c59c6e80771 (MD5) Previous issue date: 2020-12-10 O presente texto pretende evidenciar os problemas da tradicional teoria das fontes do Direito em face da noção de que Direito é um empreendimento coletivo e uma prática social interpretativa, como apresenta Ronald Dworkin em sua teoria do Direito como Integridade. Assim, pretendemos mostrar que a teoria das fontes do Direito parte do pressuposto positivista no sentido de que o Direito seria uma mera questão de fato, a partir da existência de uma regra de reconhecimento, padecendo, nesse ponto, daquilo que Dworkin de-nomina de aguilhão semântico. Retirando-se o aguilhão semântico, passa-se a perceber o Direito como um conceito interpretativo, incompatível com uma teoria das fontes que pretenda relevar, de antemão e de forma unívoca, o que seja o direito válido. This paper highlights the problems of the theory of the sources of law considering that law is a collective enterprise and an interpretative social practice, as presented by Ronald Dworkin. Thus, the paper shows that the theory of the sources of law starts from the positivist assumption that law would be a mere matter of fact, from the existence of a rule of recognition, suffering, at this point, from what Dworkin calls semantic sting. Removing the semantic sting, it is possibly understanding law as an interpretative concept, incompatible with a sources of law theory that intends to discovery, beforehand and in a univocal way, what is the valid law.

Resumen: El objetivo de este trabajo es analizar críticamente la tesis de Atria en donde los tres sentidos de positivismo jurídico diferenciados por Bobbio no pueden ser concebidos de forma independiente, sino que se explican recíprocamente. Para lograr este objetivo, el trabajo es dividido en cuatro secciones. La primera presenta la tesis de Norberto Bobbio sobre la necesidad de distinguir tres sentidos de la expresión positivismo jurídico (1). En la segunda se reconstruye la tesis de Fernando Atria donde los tres tipos de positivismo se explican recíprocamente, así como cada uno de los argumentos que la sustentan (2). En la tercera sección se analiza críticamente la tesis de Atria y cada uno de los argumentos en que se apoya (3). Finalmente, se presentan de manera resumida las razones más importantes para concluir que Atria no logra desafiar la distinción bobbiana (4).

Most theorists agree that our social order includes a distinctive legal dimension. A fundamental question is that of whether reference to specific legal phenomena always involves a commitment to a particular moral view. Whereas many philosophers advance the ‘positivist’ claim that any correspondence between morality and the law is just a function of political circumstance, natural law theorists insist that law is intrinsically moral. Each school claims the crucial advantage of consistency with our folk concept. Drawing on the notion of dual character concepts, we develop a set of hypotheses about the intuitive relation between a rule’s moral and legal aspects. We then report a set of studies that conflict unexpectedly with the predictions by legal positivists. Intuitively, an evil rule is not a fully-fledged instance of law.

This article aims to explore the question of (in)determination of law in positivism, "post-positivism" and out of normative theories. Then, it is intend to assert whether these theories can reduce the indetermination of the law, or, in reverse, if they contribute to enlarge it. To this end, research is developed based on the option of a critical-methodological approach, especially to unmake some inconsistencies propagated around these theories. Initially, the question of (in) certainty of legal positivism will be addressed, in the light of the theories of Hans Kelsen and Herbert LA Hart, focusing on what they proposed (or did not propose) when the law did not provide a direct solution to the specific case presented. Consider the hypothesis that legal positivism brought more uncertainty than certainty. It is shown that positivists like Kelsen and Hart already talked about principles, albeit in a non-systematic way, and, moreover, that Francesco Ferrara's positivism already developed the principles with the character of normativity. Afterwards, it will be demonstrated that, long before the 1988 Constitution, the Brazilian Constitutional Court already applied the principles directly, with normative force. Finally, it is concluded that the indetermination of the law is a contingency, and that it presents itself in a paradoxical way, it allows the opening to the future and connects the right to practical reason but at the same time is a value that should be imposed on the system, a postulated that should always be required in tension with justice value. KEYWORDS: Indetermination of the law. Positivism. Postpositivism. Argumentation theories.