History of political and legal doctrines
Gorbunov M.D. —
Formalistic and relativistic aspects of determination of the legal rules in Herbert Hart’s concept of law
// Genesis: Historical research. – 2017. – ¹ 9.
– P. 53 - 62.
Read the article
This article examines the expressed in Herbert Hart’s concept question of determination of rules in the legal system through the legislative and precedent mechanism. Legal formalism and relativism are viewed as the ultimate forms of explanation of the aforementioned question. The author underlines the need for joint application of these mechanisms due to the fact that the general behavioral rules, on one hand, comprise the essential core of legal system, while on the other – are not capable of producing the equally efficient effect in all private cases of legal regulation. Such limitations are associated with the structure of law, the nature of which is substantiated by the objective flaws in legal language. As a result of the analysis of Herbert Hart’s theoretical views in legal system within the context of schools of legal positivism and realism, it seems possible to make the following conclusions: firstly, the behavioral norms are fixed in the legal system through the mechanism of legislation and precedent; secondly, the implementation of general rules is restricted by the sphere of relatively simple cases that do not require the clarification of legal assignments; thirdly, the need for interpretation of the rules emerges as a result of uncertainty, substantiated by the transparent structureof law; fourthly, the open system of law lies in the limited descriptive ability of legal language, which fixates the rules; fifthly, the fulfillment of restrictions of the rules functions is realized through the mechanism of authoritative precedent decision that eliminates the legal uncertainty; sixthly, precedent does not substitute the rules, because the courts, even having ultimately broad powers, are limited by the norms that constitute the legal system itself. The acquired results presents significantly value from the perspective of development of the fundamental legal science, due to introducing into the scientific discourse the new to the Russian legal doctrine provisions, formulated within the frameworks of neo-positivistic concept of law of Herbert Hart – one of the leading philosophers of law of the previous century, whose works remain little-studied in Russia.
Keywords: Normative regulation, Interpretation of law, Law enforcement, Lawmaking, Transparent structure of law, Legal language, Legal realism, Court precedent, Legal rules, Legal positivism
Khart G. L. A. Ponyatie prava [Tekst] / Per. s angl.; pod obshch. red. E. V. Afonasina i S. V. Moiseeva.-SPb.: Izd-vo S.-Peterb. un-ta, 2007.
Cross R., Precedent in English Law / Cross R.-Oxford: Clarendon Press, 1961
Dickinson J., Administrative Justice and the Su¬premacy of Law / Dickinson J.-Cambridge: Harvard University Press, 1927
Frank J., Law and the Modern Mind / Frank J.-Transaction Publisher, 1930
Hart H. L. A., Theory and Definition in Jurisprudence // Aristotelian Society Supplementary, 1955
Hart H. L. A., Positivism and the Separation of Law and Morals // Harvard Law Review, 1958
Hendel S., Charles Evan Hughes and the Supreme Court / Hendel S.-New York: King's Crown Press, 1951
Hutcheson J. C. Jr., The Judgment Intuitive: «The Function of the "Hunch" in Judicial Decision» // Cornell Law Quarterly, 1928
Miller L. G., Rules and Exceptions // International Journal of Ethics, 1956
Schwartz B., An Introduction to American Administrative Law / Schwartz B.-London: Pitman, 1962