- Researcher, Lecturer-Researcher of the Institute of State and Law of the Russian Academy of Sciences (ISL RAS), Bache... moreResearcher, Lecturer-Researcher of the Institute of State and Law of the Russian Academy of Sciences (ISL RAS), Bachelor and Master of Laws (LL.B and LL.M) of the Saint Petersburg State University (SPbSU), barrister’s assistant (Moscow).edit
This article is devoted to modern researches on the Russian realistic jurisprudence. The relevance of the topic of this paper is determined by growing interest in legal realistic movements in general and Russian legal realism in... more
This article is devoted to modern researches on the Russian realistic jurisprudence. The relevance of the topic of this paper is determined by growing interest in legal realistic movements in general and Russian legal realism in particular. Current approaches to the analysis, reconstruction and criticism of legal realism are being developed by leading scholars, that indicates the importance of the realistic paradigm in law. The approaches to understanding Russian legal realism considered in the article, especially in the context of classic American and Scandinavian realistic movements, allow to analyze the trends in the further development of the theory and practice of legal realism in Russia. The subject of the study is the approaches of modern scholars to the phenomenon of Russian legal realism. The purpose of the work is to clarify the reasonableness of the identification of the Russian realistic movement in law. The novelty of the topic consists of the analysis of works that have appeared in the last decade on the subject of Russian legal realism, including a comparison of the principal opinions available in science about the representatives of this movement and the prospects for its recognition as a “classic” realistic movement, along with American and Scandinavian legal realism. Descriptive, formal-logical and comparative legal methods were used as the key research methods, including the analysis of the works of the authors of the English-language collective monograph “Russian Legal Realism” (2018, Springer) and the comparison of American, Scandinavian and Russian realistic movements in jurisprudence. The main conclusions of the article are the necessity for further research of Russian legal thought of the late 19th–early 20th centuries and its development in the 20th–21st centuries in order to distinguish more clearly the Russian version of legal realism among diverse psychological and sociological theories, as well as to compare presumably realistic ideas in Russia with the already acknowledged classic movements of legal realism in the USA and Scandinavia. The significance of such a comparative analysis for justification the existence of a specific Russian movement of legal realism is emphasized. Despite many methodological difficulties, an understanding of Russian legal realism is provided, that distinguishes the works of its predecessors at the end of the 19th century and supporters (theorists and practitioners) in the 20th century: the proposed understanding also actualizes their significant influence on Russian legal realities in the 21st century.
Research Interests: Legal Theory, Legal Realism, Legal interpretation, Legal realism (Law), Legal Realism, Critical Legal Studies, Formalism, and 6 moreScandinavian Legal Realism, Theory of Legal Interpretation, American Legal Realism, New Legal Realism, Realism in legal interpretation, and Continental (Psychological) Legal Realism
© Springer Nature B.V. 2023
M. Sellers, S. Kirste (eds.), Encyclopedia of the Philosophy of Law and Social Philosophy, https://doi.org/10.1007/978-94-007-6730-0_1100-1
M. Sellers, S. Kirste (eds.), Encyclopedia of the Philosophy of Law and Social Philosophy, https://doi.org/10.1007/978-94-007-6730-0_1100-1
Research Interests:
Classic – American and Scandinavian – branches of legal realism research in Russian science has certain specificity, according to, for instance, ideological-political and linguistic factors. Due to the limited amount of fundamental... more
Classic – American and Scandinavian – branches of legal realism research in Russian science has certain specificity, according to, for instance, ideological-political and linguistic factors. Due to the limited amount of fundamental research, the majority of existing Russian-language works on this topic are fragmentary and do not strive to make comprehensive and/or comparative analysis of the ideas of American and Scandinavian legal realism. Not only unequal degree of research on American and Scandinavian legal realism in Russian science is noted, but also the absence of unity in identifying the main representatives (and their classification) of these branches of legal realism, that arbitrarily expands or restricts the circle of their adherents. From the point of view of the methodological criterion of classification, that is common to the theory and philosophy of law, the author interprets American and Scandinavian legal realism as a “socio-psychological” type of positivist legal understanding, which determines the intellectual connection of legal realism with sociological and psychological approaches to law in Russian science. Classic legal realism has significantly enriched world legal theory and practice, especially in the search for legal certainty in the American branch and the struggle against metaphysics in the Scandinavian one. The central issues of jurisprudence, reinterpreted by legal realism, including the very concept of law, the concepts of rights and obligations, the role of value judgments, etc., are relevant both for the analysis of Russian legal traditions and for further development of Russian law, especially in the aspect of a more precise understanding of judicial activity and the language of jurisprudence. Moreover, the increasing research of non-classic variants of legal realism in Russian jurisprudence requires a fundamental understanding of the nature of “legal realism” as such and the legacy of its classic branches. The currently developing concept of “Russian Legal Realism” also claims to be a classic version of a realistic approach to law, sharing with the American and Scandinavian variants a common understanding of its role as an intermediary between “book” law and practical human problems.
Research Interests:
Publication of the book “Law and the Modern Mind” in 1930 by J. Frank became one of the starting points in the history of American legal realism. The problem of legal certainty is central in the work of J. Frank. For him the vital... more
Publication of the book “Law and the Modern Mind” in 1930 by J. Frank became one of the starting points in the history of American legal realism. The problem of legal certainty is central in the work of J. Frank. For him the vital question was why lawyers, judges and general public “believe in” and “rely on” the myth of certainty and exactness of the legal rules. One of the reasons J. Frank finds in our childish way of thinking that is tend to fixed, stable and immutable set of mechanical rules. According to the works of child psychologists, J. Frank elaborated and described the childish illusion of world’s clarity, the important element of which is the connection of the child with his father, and its counterpart in adult’s desire for legal certainty.
Research Interests:
Historical and legal research shows that, contrary to popular belief, human rights are traditionally considered rather sceptically in the internal politics of Scandinavia. Special importance in this regard is given to Scandinavian legal... more
Historical and legal research shows that, contrary to popular belief, human rights are traditionally considered rather sceptically in the internal politics of Scandinavia. Special importance in this regard is given to Scandinavian legal realism, that originated from the Uppsala school of philosophy and formed close connection with the Social Democratic Workers’ Party of Sweden. But the ideas of Scandinavian legal realism have not been static for decades. Under the influence of internal demands and external conditions the search for own Swedish identity eventually conceded to unifying European trends. Scandinavian legal realism contributes to the reconstruction of the sociological and psychological understanding of human rights.
Research Interests:
Critical attitude of Axel Hägerström was enthusiastically carried by his follower Vilhelm Lundstedt, who, according to Scandinavian legal realism, sought to make jurisprudence a science based on verifiable facts. He sharply criticized any... more
Critical attitude of Axel Hägerström was enthusiastically carried by his follower Vilhelm Lundstedt, who, according to Scandinavian legal realism, sought to make jurisprudence a science based on verifiable facts. He sharply criticized any inclusion of metaphysics into law, especially considerations of justice. In V. Lundstedt’s opinion, law is an intricate machinery which is kept going by means of psychological impulses of man, his senses, instincts and emotions and which is controlled by legislation, administration of law, courts, administrative activities on the part of persons elected or appointed to fulfill certain functions in society and the application of some other measures of coercion. Traditional legal theories, including positivism and sociological jurisprudence, V. Lundstedt considered to be unscientific and completely irrational, based on ideological conceptions unrelated to verifiable facts. According to him, concepts of traditional jurisprudence do not correspond to the real world and exist only as feelings in our mind: these “false ideas” can only be used as “labels” denoting certain realities. However, V. Lundtstedt’s concept consisted not only of criticism but also offered constructive elements for improving jurisprudence and legal method in a more natural-scientific sense. Instead of the rejected ideologized “method of justice”, that uses only different concepts of objectively non-existent justice, V. Lundstedt offers his “method of social welfare”, that is understood as the encouragement in the best possible way of that which people in general actually strive to attain. According to this method the reason for the existence and operation of law is the satisfaction of social needs: law creates new and changes old legal relations for a social purpose, that is, for the benefit of society, or “social welfare”. Despite V. Lundstedt’s rather extensive presentation and passionate defense of constructed method, it caused reasonable criticism regarding its originality, sufficient elaboration and coherence.
Analysis of the content of the method of “social welfare” and its criticism in relation to utilitarianism, the falsity of the highlighted human strivings, insufficiency of the method in some judicial cases, as well as the impossibility of solving simultaneously theoretical and practical problems, raises doubts about the success of V. Lundstedt’s desirable “basic reshaping of legal thinking”, but inspires for further researches in the field of law.
Analysis of the content of the method of “social welfare” and its criticism in relation to utilitarianism, the falsity of the highlighted human strivings, insufficiency of the method in some judicial cases, as well as the impossibility of solving simultaneously theoretical and practical problems, raises doubts about the success of V. Lundstedt’s desirable “basic reshaping of legal thinking”, but inspires for further researches in the field of law.
Research Interests:
Ideas of Axel Hägerström, the founder of Scandinavian legal realism, are not sufficiently known in Russian legal science. His works on the legal philosophy are mainly devoted to the study of fundamental legal concepts and attempt to... more
Ideas of Axel Hägerström, the founder of Scandinavian legal realism, are not sufficiently known in Russian legal science. His works on the legal philosophy are mainly devoted to the study of fundamental legal concepts and attempt to establish the facts corresponding to them. Axel Hägerström presented extensive critique of natural law and legal positivism. Special attention is focused on the basic element of the latter – theory of will – as well as on the implicit presence of natural law provisions in positivism. Axel Hägerström considers the nature of law as an expression of interests and as a social mechanism, emphasizing socio-psychological factors contributing to preservation the legal order: social instinct, belief in God, positive moral disposition and fear of external coercion. Concepts of rights and duties are considered by Axel Hägerström as a consequence of magical beliefs and metaphysical visions that are merely “feelings”, as it is impossible to find in reality facts that are relevant to rights and duties. Hence, values are seen as expressions of feelings that lead to the denial of the existence of objective values. Axel Hägerström suggests to exclude from the field of jurisprudence all legal problems with evaluative components. Despite the absence of comprehensive political theory Axel Hägerström’s philosophy appealed to vital political issues of his time: democratic turn in the state administration; necessity of “suggestive effect” of authority. Judicial activity is examined, largely, in terms of critique of voluntaristic theories. Axel Hägerström denies both declaration of legislators’ will in judicial decisions and identity of such decisions to the will of the judge. Certainty of law is supported by predictability of judicial decisions which depends on objective factors. Axel Hägerström was developing a realistic approach to law through the exposure of the metaphysical ground of traditional legal theories, use of empirical methods and the study of facts. However, he failed to explain clearly the particular concepts and methods of the new movement of legal thought – the task performed later by his followers.
Research Interests:
The article discusses the problem of legal certainty from the view of members of moderate wing of the American legal realist movement, “rule-skeptics”, the major representatives of which are Karl Nickerson Llewellyn, Underhill Moore and... more
The article discusses the problem of legal certainty from the view of members of moderate wing of the American legal realist movement, “rule-skeptics”, the major representatives of which are Karl Nickerson Llewellyn, Underhill Moore and Herman Oliphant. Rule-skeptics sought for methods different from the traditional doctrine for a more accurate prediction of judicial decision while arguing that rules of law or precedents are quite often abstract from the factual situation of their creation. Rule-skeptics are interested in search for social and psychological factors that affect the judge and underline the dependence of a legal rule real content on an axiological element of the legal tradition.
In the present article legal certainty is interpreted as predictability of judicial decisions. Rule-skeptics do not admit the traditional doctrine (formalism) and offer the “Grand-style” method to identify legal certainty that would take into consideration the impact of various factors on the judge and improve the process of awarding judgments. The article contains the comparison of basic aspects of Grand-style and Formal style and illustrates the peculiarity of each method.
Rule-skepticism means that legal rules in most cases are not fundamental (but directional) factors that determine the judicial decision. Judges can find alternative legal arguments for justification of the opposite decisions. The author of the article gives a list of “constant factors” that, in a view of rule-skeptics, influence the regulation of the judge’s conduct and in certain cases are the most important for the outcome of the case.
The article analyses the rule-skeptics’ division of rules into “real rules” (action of courts) and “paper rules” (written wordings in books) and the judge’s capacity to independently assess the ratio decidendi and obiter dictum in a precedent.
The author of the article summarizes the criticism of rule-skeptics’ approach to legal certainty, points out the inconsistency of accusations, and notes that the central concept of the American legal realists as regards legal certainty (“the rules of law alone do not decide case”) had an important impact on all subsequent legal schools and movements of the American legal thought.
In the present article legal certainty is interpreted as predictability of judicial decisions. Rule-skeptics do not admit the traditional doctrine (formalism) and offer the “Grand-style” method to identify legal certainty that would take into consideration the impact of various factors on the judge and improve the process of awarding judgments. The article contains the comparison of basic aspects of Grand-style and Formal style and illustrates the peculiarity of each method.
Rule-skepticism means that legal rules in most cases are not fundamental (but directional) factors that determine the judicial decision. Judges can find alternative legal arguments for justification of the opposite decisions. The author of the article gives a list of “constant factors” that, in a view of rule-skeptics, influence the regulation of the judge’s conduct and in certain cases are the most important for the outcome of the case.
The article analyses the rule-skeptics’ division of rules into “real rules” (action of courts) and “paper rules” (written wordings in books) and the judge’s capacity to independently assess the ratio decidendi and obiter dictum in a precedent.
The author of the article summarizes the criticism of rule-skeptics’ approach to legal certainty, points out the inconsistency of accusations, and notes that the central concept of the American legal realists as regards legal certainty (“the rules of law alone do not decide case”) had an important impact on all subsequent legal schools and movements of the American legal thought.
Research Interests:
See in English: Contents (p. 7-8) and Preface (p. 15-20). The monograph presents materials of authors’ long-term research of Legal Realism phenomenon. The main attention is paid to American, Scandinavian, Russian versions of the... more
See in English: Contents (p. 7-8) and Preface (p. 15-20).
The monograph presents materials of authors’ long-term research of Legal Realism phenomenon. The main attention is paid to American, Scandinavian, Russian versions of the realistic approach to law which actualized the significance of factual experience, behavior of legal actors and became the response of legal science to the excessive formalism, abstractness of law in the USA, Sweden, Russia in the beginning and middle of the 20th century. The foundations of Russian Legal Realism and its development in the 21st century are studied in detail. Other variants of legal realism are also indicated, as well as the attempts currently being made to reconstruct and rethink the history of the realistic approach in jurisprudence. The book is considered to be the first comprehensive work on legal realism in Russian science with an overview of classical and modern variants of realistic approach to law, an analysis of the ideas of leading representatives of legal realism and a glossary.
The monograph is addressed to legal scholars, lecturers, postgraduates, students, practicing lawyers and to all interested in problems of the theory of law, philosophy of law, history of doctrines of law and state.
The monograph presents materials of authors’ long-term research of Legal Realism phenomenon. The main attention is paid to American, Scandinavian, Russian versions of the realistic approach to law which actualized the significance of factual experience, behavior of legal actors and became the response of legal science to the excessive formalism, abstractness of law in the USA, Sweden, Russia in the beginning and middle of the 20th century. The foundations of Russian Legal Realism and its development in the 21st century are studied in detail. Other variants of legal realism are also indicated, as well as the attempts currently being made to reconstruct and rethink the history of the realistic approach in jurisprudence. The book is considered to be the first comprehensive work on legal realism in Russian science with an overview of classical and modern variants of realistic approach to law, an analysis of the ideas of leading representatives of legal realism and a glossary.
The monograph is addressed to legal scholars, lecturers, postgraduates, students, practicing lawyers and to all interested in problems of the theory of law, philosophy of law, history of doctrines of law and state.
Research Interests: Legal Theory, Sources of Law, Legal Realism, Legal interpretation, Legal Philosophy, and 13 moreLegal realism (Law), Judicial Decision-Making, Judicial Discretion, Judicial Decision Making, Legal Realism, Critical Legal Studies, Formalism, Legal Certainty, Scandinavian Legal Realism, Law and Language, Semiotics of Law, Theory of Legal Interpretation, American Legal Realism, New Legal Realism, Realism in legal interpretation, and Continental (Psychological) Legal Realism
The present volume comprises papers presented at the Special workshop “The Experience of Law” within the 29th World Congress of the International Association for Philosophy of Law and Social Philosophy (IVR) held in Lucerne, Switzerland,... more
The present volume comprises papers presented at the Special workshop “The Experience of Law” within the 29th World Congress of the International Association for Philosophy of Law and Social Philosophy (IVR) held in Lucerne, Switzerland, during July 7–12, 2019. The contribution brought together 13 researchers from 5 countries in order to view an experience of law from different epistemological perspectives among them phenomenological hermeneutics and postmodernism, psychoanalysis and neo-Kantianism, legal realism and psychological theory of law. The volume reflects the wide range of topics that were addressed by contributors: from general phenomenology of law and lawlessness to philosophy of liberation, from genesis and experience of normativity to psychological foundations of legal validity. What is common to all authors is an attempt to take a fresh look at the basic question of the philosophy of law and consider law not as an object of our cognition or our technical domination, but as something that happens to us.
Видання об’єднує статті та есеї, представлені на спеціальному семінарі «Досвід права» в рамках 29-го Всесвітнього конгресу Міжнародної асоціації філософії права та соціальної філософії (IVR), який проходив у м. Люцерн (Швейцарія) з 7 по 12 липня 2019 р. У підготовці тому взяли участь 13 дослідників з 5 країн, зацікавлених в осмисленні досвіду права з різних епістемологічних перспектив, серед яких феноменологічна герменевтика і постмодернізм, психоаналіз і неокантіанство, правової реалізм і психологічна теорія права. Коло проблем, до яких звертаються автори, досить широке: від загальної феноменології права і безправ’я до філософії звільнення, від генезису і досвіду нормативності до психологічних підстав правової валідності. Об’єднує всі представлені тексти спроба поглянути на основне питання філософії права у радикально новий спосіб і мислити право не як об’єкт нашого пізнання або технічного панування, а як те, що відбувається з нами.
Видання об’єднує статті та есеї, представлені на спеціальному семінарі «Досвід права» в рамках 29-го Всесвітнього конгресу Міжнародної асоціації філософії права та соціальної філософії (IVR), який проходив у м. Люцерн (Швейцарія) з 7 по 12 липня 2019 р. У підготовці тому взяли участь 13 дослідників з 5 країн, зацікавлених в осмисленні досвіду права з різних епістемологічних перспектив, серед яких феноменологічна герменевтика і постмодернізм, психоаналіз і неокантіанство, правової реалізм і психологічна теорія права. Коло проблем, до яких звертаються автори, досить широке: від загальної феноменології права і безправ’я до філософії звільнення, від генезису і досвіду нормативності до психологічних підстав правової валідності. Об’єднує всі представлені тексти спроба поглянути на основне питання філософії права у радикально новий спосіб і мислити право не як об’єкт нашого пізнання або технічного панування, а як те, що відбувається з нами.
Research Interests:
Translated to Russian by D. Tonkov: Llewellyn KN (1930) A Realistic Jurisprudence – the Next Step. Colum Law Rev 30(4):431–465 In the article the organized control mechanisms of specific time and specific place are analysed. The author... more
Translated to Russian by D. Tonkov: Llewellyn KN (1930) A Realistic Jurisprudence – the Next Step. Colum Law Rev 30(4):431–465
In the article the organized control mechanisms of specific time and specific place are analysed. The author does not attempt to offer the definition of “law” and points out methodological significance of the search of something that can be included in law rather than something that can be excluded from it. Every single approach proposes its own conception that overestimates some aspects and underestimates the others. Upholding the concept of law not as a value per se but as a heterogeneous multitude of processes with their goals, indicating the unwillingness of traditional approach to analyse the real facts, the researcher describes uncertainty, or “multiple certainty”, of existent legal terms and categories.
The author collates the development of notions of “legal rules” and “rights” and innovatively proposes the “real rules” in the meaning of concrete judicial activities, which value lies in determination of what judges should do in practice. The author notes the narrowness of “paper rules”, traditionally called rules of law, written in books, which only direct the judges’ decisions. He emphasizes that “paper rules” are open to manipulation so that revelation of a case outcome becomes difficult.
The most important aspect of law concerns the sphere of behaviour. The author endeavours to alter the traditional approach to the law and demonstrates that the verbal formulas possess the significance which is proportionate to the extent of their impact on the person’s behaviour. The substantive rules are considered an instrument, – in the light of their real impact on the judges’, officials’ and individuals’ behaviour, – that should be the central point in the analysis of law. The scholar introduces the category of “interests” to draw attention to the social and psychological factors in law that are usually called as “extralegal”. Advantages of the introduced approach are examined from the viewpoint of the observer, the practicing lawyer, the legislator, the legal philosopher and the judge. The article also identifies the first list of the realistic approach’s representatives of sixteen names. The movement of legal realists consists not only of one legal school and one country that indicates its growing influence.
In the article the organized control mechanisms of specific time and specific place are analysed. The author does not attempt to offer the definition of “law” and points out methodological significance of the search of something that can be included in law rather than something that can be excluded from it. Every single approach proposes its own conception that overestimates some aspects and underestimates the others. Upholding the concept of law not as a value per se but as a heterogeneous multitude of processes with their goals, indicating the unwillingness of traditional approach to analyse the real facts, the researcher describes uncertainty, or “multiple certainty”, of existent legal terms and categories.
The author collates the development of notions of “legal rules” and “rights” and innovatively proposes the “real rules” in the meaning of concrete judicial activities, which value lies in determination of what judges should do in practice. The author notes the narrowness of “paper rules”, traditionally called rules of law, written in books, which only direct the judges’ decisions. He emphasizes that “paper rules” are open to manipulation so that revelation of a case outcome becomes difficult.
The most important aspect of law concerns the sphere of behaviour. The author endeavours to alter the traditional approach to the law and demonstrates that the verbal formulas possess the significance which is proportionate to the extent of their impact on the person’s behaviour. The substantive rules are considered an instrument, – in the light of their real impact on the judges’, officials’ and individuals’ behaviour, – that should be the central point in the analysis of law. The scholar introduces the category of “interests” to draw attention to the social and psychological factors in law that are usually called as “extralegal”. Advantages of the introduced approach are examined from the viewpoint of the observer, the practicing lawyer, the legislator, the legal philosopher and the judge. The article also identifies the first list of the realistic approach’s representatives of sixteen names. The movement of legal realists consists not only of one legal school and one country that indicates its growing influence.
Research Interests:
Translated to Russian by E. Timoshina, A. Krajewski, D. Tonkov: Fittipaldi E. (2013) Leon Petrażycki’s Conception of Legal Dogmatics as a Science at the Service of the Principle of Legality: a Critical Defense. Expanded text of E.... more
Translated to Russian by E. Timoshina, A. Krajewski, D. Tonkov:
Fittipaldi E. (2013) Leon Petrażycki’s Conception of Legal Dogmatics as a Science at the Service of the Principle of Legality: a Critical Defense.
Expanded text of E. Fittipaldi's presentation at the International Scientific Conference "St. Petersburg School of Philosophy of Law and Modern Jurisprudence" (St. Petersburg State University, Faculty of Law, St. Petersburg, October 26, 2013).
Petrażycki ascribed to legal dogmatics a function and a task. Its function is to contribute to the unification of law while its task is to contribute to the realization of the ideal of the Rechtsstaat. Since these two goals are not always compatible, Fittipaldi focuses on the legality task and shows that Petrażycki devised a legal dogmatics that is purer than that of Hans Kelsen. Fittipaldi also shows that the pureness of Petrażycki’s legal dogmatics would lead, at least in some cases, to its practical impossibility. However, Fittipaldi believes that the proposal of Petrażycki to conceive legal dogmatics as a subjective- relational science, rather than an objective-cognitive one, if consistently developed, may provide a solution to this problem. Legal dogmatics should be completely subjectivized. In this case, the role of dogmata should be played, not by a certain set of normative facts, as both Petrażycki and Jerzy Lande believed, but rather by the axioms that the legal dogmatist chooses for his activity. These axioms may be substantive ones, such as some values of the dogmatist himself, or formal ones, such as certain normative facts or certain axioms concerning the way normative facts should be “produced” or “recognized”. In this regard, Petrażycki’s conception of legal dogmatics requires Kelsen’s concept of Grundnorm understood as choice of certain axioms on the part of the Subject (i.e. the dogmatist). Fittipaldi also notes that Petrażycki’s last writings seem to imply that the statements produced by legal dogmatics, despite their being false, can be evaluated in terms of their correctness or incorrectness (in a purely epistemological sense). Thus, according to Fittipaldi, Petrażycki’s conception should also be completed by the distinction made by Olivecrona between truth and correctness.
Fittipaldi E. (2013) Leon Petrażycki’s Conception of Legal Dogmatics as a Science at the Service of the Principle of Legality: a Critical Defense.
Expanded text of E. Fittipaldi's presentation at the International Scientific Conference "St. Petersburg School of Philosophy of Law and Modern Jurisprudence" (St. Petersburg State University, Faculty of Law, St. Petersburg, October 26, 2013).
Petrażycki ascribed to legal dogmatics a function and a task. Its function is to contribute to the unification of law while its task is to contribute to the realization of the ideal of the Rechtsstaat. Since these two goals are not always compatible, Fittipaldi focuses on the legality task and shows that Petrażycki devised a legal dogmatics that is purer than that of Hans Kelsen. Fittipaldi also shows that the pureness of Petrażycki’s legal dogmatics would lead, at least in some cases, to its practical impossibility. However, Fittipaldi believes that the proposal of Petrażycki to conceive legal dogmatics as a subjective- relational science, rather than an objective-cognitive one, if consistently developed, may provide a solution to this problem. Legal dogmatics should be completely subjectivized. In this case, the role of dogmata should be played, not by a certain set of normative facts, as both Petrażycki and Jerzy Lande believed, but rather by the axioms that the legal dogmatist chooses for his activity. These axioms may be substantive ones, such as some values of the dogmatist himself, or formal ones, such as certain normative facts or certain axioms concerning the way normative facts should be “produced” or “recognized”. In this regard, Petrażycki’s conception of legal dogmatics requires Kelsen’s concept of Grundnorm understood as choice of certain axioms on the part of the Subject (i.e. the dogmatist). Fittipaldi also notes that Petrażycki’s last writings seem to imply that the statements produced by legal dogmatics, despite their being false, can be evaluated in terms of their correctness or incorrectness (in a purely epistemological sense). Thus, according to Fittipaldi, Petrażycki’s conception should also be completed by the distinction made by Olivecrona between truth and correctness.
Research Interests:
The authors-participants of the XXX World Congress of the International Association for the Philosophy of Law and Social Philosophy (IVR) presented a review of the world forum held on July 03–08, 2022 in Bucharest, Romania, on the basis... more
The authors-participants of the XXX World Congress of the International Association for the Philosophy of Law and Social Philosophy (IVR) presented a review of the world forum held on July 03–08, 2022 in Bucharest, Romania, on the basis of the Dimitrie Cantemir Christian University. The main organizers of the congress were representatives of the Romanian section of IVR and the Romanian Association for Philosophy of Law: C. Dumitrescu, I. Craiovan, M. Badescu, etc. Initially set for 2021, the congress commemorated G.W.F. Hegel and J. Rawls and their papers – respectively, “Philosophy of Law” (1821) and “Theory of Justice” (1971), – with the leading theme “Justice, Community and Freedom”. More than four hundred people took part in the congress, including the world’s leading researchers of the philosophy of law and social philosophy, such as R. Alexy, B. Bix, K. Günther, S. Kirste, B. Leiter, K. Papageorgiou, M. Sellers, T. Spaak, etc. The most widely represented scientific institutions were from Austria, Argentina, Brazil, Great Britain, Germany, Poland, Portugal, Serbia, USA, France, Croatia, Sweden, South Korea, Japan, etc. Due to the ongoing COVID-19 pandemic, international political circumstances and logistic difficulties, some researchers, including Russian scholars, were unable to fully participate in the congress. Nevertheless, most participants were able to meet safely in Bucharest and productively discuss current philosophical and legal issues in face-to-face communication, among which the following can be emphasized: “existence and foundations of law”, “predictive justice”, “human rights”, “legal realism”, “empirical approaches in the philosophy of law”, “justice”, “dignity”, “equality”, “morality”, “normative systems”, “legal argumentation”, “legitimation", “judicial activity”, “epistemology”, “language of law”, etc. The Congress program was divided into ten plenary lectures, sixty-four main (“Special Workshops”) and six additional (“Working Groups”) sections, two lectures by IVR prize winners (Book Prize and Young Scholar Prize), two special panels (IVR President’s and Romanian IVR Section’s) and a presentation of the IVR Encyclopedia. The prevalent working language of the world forum was English, but some sections allowed the use of German, Spanish, Portuguese, etc. Special attention in the review is paid to B. Leiter’s opening plenary address “Some Realism about Political and Legal Philosophy”, Special Workshop “Legal Realism in Russia”, lecture of R. Alexy as the winner of the IVR Book Prize in 2022, presentation of the IVR Encyclopedia, which is being prepared for publication in 2023, as well as the general results of the congress in Bucharest and prospects for further IVR congresses.
FOR CITATION:
Tonkov, D.E., Tonkov, E.N. (2022). "Justice, Community and Freedom": Review of the XXX World Congress of the International Association for the Philosophy of Law and Social Philosophy (IVR2022). Trudy Instituta gosudarstva i prava RAN — Proceedings of the Institute of State and Law of the RAS, 17(6), pp. 206–226. DOI: 10.35427/2073-4522-2022- 17-6-d.tonkov-e.tonkov
FOR CITATION:
Tonkov, D.E., Tonkov, E.N. (2022). "Justice, Community and Freedom": Review of the XXX World Congress of the International Association for the Philosophy of Law and Social Philosophy (IVR2022). Trudy Instituta gosudarstva i prava RAN — Proceedings of the Institute of State and Law of the RAS, 17(6), pp. 206–226. DOI: 10.35427/2073-4522-2022- 17-6-d.tonkov-e.tonkov