Забыть Герострата, или Парадоксальная традиция в сфере социологии права

Социология власти. 2016. Т. 28. № 3. С. 46–60.

Shedov D.

In this article, the author draws an attention on a paradoxical tradition in the field of sociology of law: there is a tendency to ignore or to criticize the legal positivism with a simultaneously referencing on the natural law conception in the texts of some researchers. The paradox, according to the author’s opinion, is caused by the proximity of the methodological approaches of the sociology of law and the legal positivism to a study of social norms, while the logic of the natural law conceptualization is fundamentally different from the above approaches to the legal thinking. The logic of the natural law approach, as well as the libertarian legal theory, is a kind of an axiomatic establishment of a legal «standard», which can be compared to those or other social norms and practices. In the framework of the positivist approach, including the legal and sociological (the sociology of law) positivism, only formal features of the social norms legality are established axiomatically. The author presents an overview of some approaches to the understanding of law and legal concepts as an illustration of this thesis. The approaches are organized in this article in accordance with the dichotomy of views on the law as «it is» and the law as «it ought to be». As additional approaches to the understanding of law, it is presented legal opinions Donald Blake and some ideas from the so-called legal pluralism area. The article focuses on the methodological potential of the different approaches to the understanding of law in the field of empirical legal research. In conclusion, the author presents his own vision of the resolution of the paradox.

Keywords: методология, естественное право, социология права, теория права, sociology of law, methodology, natural law, юридический позитивизм, правовой плюрализм, positivism, legal pluralism, empirical legal studies