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.
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.
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.
The author of this paper responds to the critique of the realist theory of interpretation made by O. Pfersmann. M. Troper insists that critique of his theory is based on the incorrect philosophical generalizations. The realist theory considers that it is impossible to find an objective meaning of legal texts also through judicial process. Thus, claiming at the same time that judicial decisions are the main source of knowledge about law and that these decisions do not have objective meaning does not lead to any internal contradictions in this theory.
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.
This paper considers the ways in which Leon Petrażycki and Eugen Ehrlich employed the psychological notion of emotions in defining the law. Both scholars defined the law by referring to special kinds of emotions: bilateral emotions in Petrażycki’s conception and repulsive emotions of experiencing the wrong behavior of other people, according to Ehrlich’s legal sociology. On the basis of a comparison between the theories of Petrażycki and Ehrlich, the author asserts that both theories hinge on similar methodologies and philosophies. This approach has evident affinities with the conception of law developed by Axel Hägerström and other Scandinavian realists. This analysis suggests a parallel in the development of the realist, sociological and psychological approaches to the law in the first decades of the twentieth century, uncovering certain trends in legal scholarship that underpinned this development.
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.