Article
Law and Economics, Judicial Pragmatism and Their Limits on Both Sides of the Atlantic
The paper analyzes the key ideas of Justice Gadzhiev and Judge Posner on legal methodology and tasks in legal education. These ideas are considered in the context of two recent books by these authors. Both books appeared in 2016 and both question certain principal dimensions of pragmatism in the law, to which both Gadzhiev and Posner are subscribed. This review essay examines the links between the respective ideas of these two authors on methods of legal research, on judicial process and on teaching law, in addition to providing an overview of the intellectual culture of the us and Russian legal orders.
The author criticizes the neorealist conception of legal interpretation defended by Michel Troper. It is stressed that the neorealist approach to interpretation does not allow proving its own theses from a scientific standpoint. Subjectivist and voluntarist understanding of interpretation leads neorealism to a sociological conception of law. This understanding does not catch the most essential characteristics of legal phenomena.
The book containts articles written by European scholars about the place of socio-economic rights in the modern democracies. The introduction is written by Wiktor Osiatynski, who analyses the confusing concepts of socio-economic rights.
The overarching goal of this chapter is to examine the nature of the Russian psychological school of law from the perspective of the international realist movement. This will allow us to define its most common characteristics, its original ideas and general influence on the development of legal philosophy. Discussing the crisis of legal thought at the beginning of the 20th century, the author shows the impact of Russian legal philosophy on overcoming this impasse. Furthermore, the author emphasizes the role of the psychological approach in the formation of the realist paradigm and its influence on the development of critical theory in early Soviet law as well as its general influence on the legal sociology of the 20th century.
This paper deals with the neorealist theory of interpretation elaborated by the French legal scholar, Michel Troper. The basic theses and problems of this theory, as well as the debates about it are elucidated in the present article. In author’s opinion, an analysis of the neorealist theory allows unveiling many interesting aspects that are important for philosophical assessment of the problem of legal propositions.
In this article the author examines the problems connected with definition of nature of constitutional interpretation. On the base of the cases from the judicial practice, Michel Troper shows that specificity of constitutional interpretation does not reside in particular character of constitution which is the object of interpretation. According to this French theorist who is leader of the school of French legal realism, the particular trait of constitutional interpretation is due to the fact that this kind of interpretation results in constructing a hierarchy of normative acts in a given legal order. Even if such a hierarchy is described in a constitution, it will nevertheless remain hypothetical and subject to changes through an act of constitutional interpretation. Michel Troper insists that a meaning of a legal text cannot be defined prior to interpretation; therefore this legal text will not have any definitive content before being interpreted. The French theorist concludes that a legal norm is not created by the way of legislation — it is created through authentic interpretation of the legislative acts. As authentic interpretation the author holds such construction of a legal text which brings any legally relevant consequences having binding force in this given legal order, there consequences being immune to overruling by any higher instance. Such interpretation can be exercised both by judicial and non-jurisdictional bodies.