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Article

Легитимность и действие права

The history of political ideas exemplifies that frequently the attempts to limit validity of the positive law were undertaken with the use of such ambiguous expressions and concepts as “nature of things”, “people’s spirit”, “class interest”, and other concepts which introduce subjective suprastatutory criteria of validity of law making them appear as objective ones. In author’s opinion, one of such ambiguous concept is that of legitimacy. One can hear that illegitimate regimes can be overthrown by the way of revolution, that illegitimate norms can be circumvented and violated, that legal but supposedly illegitimate rights and interests (for example, those of religious and other minorities) can be deprived of legal protection. The objective of the present paper is to analyze these questions and to establish whether the concept of legitimacy of law can be utilized for defining the binding force of law. It is underscored that an indiscriminate use of the concept “legitimacy” in propositions about validity of legal norms can result in violations of such norms by their addressees because of the alleged illegitimacy of these norms. It is important to underscore the centrality of the distinction between descriptive and prescriptive propositions in such situations in which one makes argument that a government is illegitimate as having no social support and for this reason one infers that it is legally allowed to change this government or discard the legal rules enacted by this government. Lawyers should pay particular attention to such propositions about legitimacy of legal norms where legitimacy or recognition are applied in the purposes of justification of these norms: here these criteria work out as parts of a value judgment that might potentially justify illegal behavior.