Ценностный дискурс в вопросе о действии норм права

Гл. 8. С. 144–168.

Antonov M.

The separation thesis that there is no necessary connection between the operation of legal norms and values is one of the two main criteria (along with the social sources thesis) for distinguishing positivism from non-positivism. In debates about the merits and demerits of legal positivism, this thesis is often distorted, for example by claims that positivists do not recognise the significance of values in the field of law at all or preach amoralism. The separation thesis is not only concerned with determining the conditions for the operation of law. In the literature, it is also used in debates about the semantic criteria of law - whether the concept of 'right' can be defined without the aid of value judgments. The issue of values (or rather our judgments about them) may reveal its relevance in determining the operation of law. But this relevance is only relative, as we will see below. Firstly, the validity of the rule of law has several dimensions, and not all of them require a link between the validity of the rule and values. Second, judgements about the validity of a rule of law are always conditional, that is, they create an obligation for recipients only if certain requirements about the form and/or content of the rule are met. These requirements vary from one legal order to another and not all legal orders regard the validity of the norm as dependent on its conformity with certain values. 

Keywords: validity of law, действительность права, право и мораль, Law and morality, value discourse, ценностный дискурс

In book

Релятивизм в праве

СПб.: Алетейя, 2021.