The subject of the present paper is the interpretation of the doctrine of the rule of law in the teaching of the leading representative of exclusive legal positivism, Joseph Raz (1939 - 2022). The importance of analysing the doctrine of the rule of law in this perspective lies in the fact that such a study is able to identify the fundamental ideas of the positivist understanding of law and the rule of law from the standpoint of the post-Hartian stage of its evolution. The article reveals two main approaches to understanding the rule of law in modern British legal literature - material and formal concepts. Raz's views on the rule of law are compared with the classical ideas of A.V. Dicey, the principles of the "inner morality" of law by L.L. Fuller and the position of F.A. von Hayek. The scientific novelty of the article is that for the first time in the Russian legal literature an attempt has been made to reveal the differences between formal and material concepts of the rule of law in British jurisprudence. Raz's arguments about the nature and goals of the rule of law are not generally accepted in English constituional doctrine, but are quite indicative of the position of post-Hartian legal positivism on the problem of building a stable and predictable legal order. On the one hand, the principles of the rule of law revealed in the teachings of Raz relate exclusively to the legal form, which is generally characteristic of the neo-positivism of the XX century. On the other hand, sociological attitudes can also be distinguished in Raz's teaching, which allows to assert that post-Hartian legal positivism combines a number of ideas of "classical" and "sociological" positivism.
The purpose of the research. This article examines the key ideas underlying the legal teachings of the New Zealand lawyer, civil servant and judge John William Salmond (1862-1924), who, as the authors of this study demonstrate, was one of the first critics of the “command theory of law” of the founder of the school of analytical jurisprudence John Austin (1790-1859). By analyzing and interpreting Salmond’s legal doctrine the authors refute the view, entrenched in Russian jurisprudence, that the central representative of the 20th century neo-positivism Herbert Lionel Adolphus Hart (1907-1992) is considered a pioneer in this field who initiated the criticism of Austin’s legal understanding. The authors advocate the position that Hart’s critique of the command conception and understanding of law in his teachings is largely based on Salmond’s ideas. As a result of this study the authors conclude that there are certain similarities between J.W. Salmond’s idea of “ultimate legal principles” and H.L.A. Hart’s legal doctrine on the “rule of recognition”.
The article is devoted to the legal doctrine of the famous New Zealand jurist John William Salmond - one of the most remarkable representatives of Anglo-American legal positivism, who made a significant contribution to its development. The aim is to reconstruct the views of a lawyer about the nature of law and the subject area of jurisprudence. The relevance lies in the fact that the evolution of Anglo-American legal positivism from J. Austin to the teachings of H.L.A. Hart is poorly studied in Russian jurisprudence while prevailing in Anglo-American legal thought. The methodological basis comprises historical approach along with the elements of a biographical approach, techniques and procedures of legal hermeneutics, rules and techniques of formal logic allowing to reconstruct the key ideas of J. Salmond's legal theory and place it in the context of the common law tradition. The main ideological line of the work is the connection between the legal teachings of J. Austin, J. Salmond and H.L.A. Hart. The work reveals features that allow to assert the typological belonging of Salmond's doctrine to the classical legal positivism in England. Particular attention in the article is paid to the study of significant differences between the legal teachings of J. Austin and J. Salmond, as well as the substantial similarities between legal theories of J. Salmond and H.L.A. Hart. The author came to the conclusion that Salmond's legal doctrine was the first in the history of English legal positivism, where the basis for the validity of law lies not in the order of the sovereign, but within the practice of the courts recognizing the rules as legal.
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