Естественное право в призме чистого учения о праве
In this article the author examines the question about a correlation between the pure theory of law and natural law doctrine. The author demonstrates that Kelsen’s was the idea of incompatibility of these two approaches to law. But one cannot consider the borderlines between different philosophical ideas about law as impenetrable. The critical remarks of Kelsen against the natural law doctrine can be reduced to disagreement with political authoritarianism which the Austrian thinker tried to connect with this doctrine. At the same time, the objections formulated by Kelsen against the natural law doctrine remain, in author’s opinion, the most important and coherent contribution to examination of philosophical foundations of this doctrine.
A number of puzzles surround Kelsen’s doctrine of the normativity of the law. What, exactly, does it mean? Some writers in analytical jurisprudence have attributed a “justified” or “contentual” normativity thesis to Hans Kelsen. One representative of this view, Joseph Raz, goes so far as to claim that the “justified normativity thesis” defended by Kelsen is an expression of traditional natural law theory. In the present essay it is argued that a “justified” or “contentual” normativity thesis forms no part of Kelsen’s theory, and the point is demonstrated textually. Rather, Kelsen defends a “modal” normativity thesis. Support for this thesis in Kelsen’s writings is drawn from Kelsen’s analogy between causality in the physical sciences and peripheral imputation in the law. The latter, as Kelsen argues, provides the underlying Gesetzlichkeit of the law,* and one explication of the notion, explored in the present essay, draws on a Neokantian notion, namely, Heinrich Rickert’s doctrine of methodological forms. The modal normativity thesis underscores the irreducible character of the law, but without making any claims respecting the content of the law.
In this paper the basic princips of the legal theory of Hans Kelsen are summarized.
The Pure Theory of Law was initially designed by Hans Kelsen (1881–1973) as a project of purification of legal science from factual elements and ideology which have no place within this science. Examining the problem of natural law played an important role in carrying out this project, which can be seen in Kelsen’s works collected in this book. This role is demonstrated against the background of Kelsen’s masterpiece of the classical period, Pure Theory of Law (first edition), and some late (after 1960) publications of this author. In this volume are also published several research works written by the leading Western specialists in Kelsen’s legal philosophy. This book can be useful for specialists in legal theory, philosophy of law, history of legal and political thought, for students learning these disciplines, as well for all those who are interested in methodological problems of legal science.
In the work are summarized the basic tenets of the theory of validity of legal norms; the ideas of Kelsen about legal validity are critically analyzed.
The article is devoted to a particular form of freedom of assembly — the right to counter-demonstrate. The author underlines the value of this right as an element of democratic society, but also acknowledges the risk of violent actions among participants of opposing demonstrations. Due to this risk, the government may adopt adequate measures restricting the right to counter-demonstrate, certain types of which are analyzed in this paper.
Development of standards of international controllability is reviewed in the article. Institutional approach is applied to development of international legal regime of Energy Charter. Definition of controllability is connected to development of international standards of dispute settlement, which are described in the article in detail. In connection with controllability, Russian interest, defense of investment in European Union and ecological investment encouragement, is reviewed in the article.
мировое управление и управляемость, Мировая экономика, международное экономическое право, энергетическая хартия, International control and controllability, International economics, international economic law, Energy Charter
международное частное право; недвижимость; ; школа бартолистов; бартолисты; теория статутов; статуарная теория/