Normativistskaya Theory of Law

Normativism legal doctrine has its roots in the formal dogmatic jurisprudence of the XIX century. and was based on the methodology developed in legal positivism. Prof. VA Mists believes that the methodological principles of positivism, this theory has brought to the extreme, and therefore called the "pure theory of law."

The founder of the school is normativistskoy Austrian jurist Hans Kelsen (1881-1973 gg.). He has taught since the collapse of the Austro-Hungarian monarchy in the University of Vienna, was legal adviser of the first republican government and drafted the Constitution of the Republic of Austria in 1920. After the annexation of Austria by Nazi Germany Kelsen emigrated to the United States.

The author calls it the doctrine developed "pure theory of law," and also the name of his best-known work on the subject.

Normativizm develops the thesis of positivism that right should learn only from the law itself, and it reinforces the reference to the postulate of Kantian philosophy, according to which "justice" - a special, doopytnaya sphere created by the human mind and is independent of "things" (ie, the nature of and society). Because the law is a system of rules of proper behavior, it lies in the realm of "proper" and, therefore, no "things."

According to Kelsen, "the right is determined only by the law" and "the force of law only in himself." He defines law as a set of rules implemented by force.

By the pure theory of law jurisprudence author understands that excludes the study of law in its economic, political, ideological, moral, and other assessment. That is the legal doctrine should not be engaged in the establishment of different bases of law, and to study its specific content, "to understand it from yourself." In this regard, Kelsen was the enemy and the theory of natural law.

To find a basis in the law itself, Kelsen puts forward the idea of ​​"basic standard" from which both derived from the original start, deploy all the other elements of the law, forming a stepped structure in the form of a pyramid. (In the future, the thesis of the "basic norm" Kelsen recognized as a weakness of the theory.)

The basic rule is directly related with the constitution and reads as follows: "It must behave as prescribed by the constitution." Thus, given the legitimacy of the existing legal order, including the state, because, according to Kelsen, the state - it is the same order, but taken from a different angle: the state is a consequence, the continuation of law, which occurs earlier than the state.

Useful Normativizm that it draws attention to the quality of law as normative, formal certainty that contributes to the improvement of law as a system, its formalization required to use the right computer, the data of cybernetics. In the literature (EA Vorotilin) ​​notes that the ideas associated normativism widespread in the modern world of constitutional institutions, the establishment of a body to which it was first envisioned in the Constitution of Austria 1920

Thus, shaped in the first half of the XX century. normativistskoe doctrine of Hans Kelsen has its disadvantages as well as advantages. In our country, it is, like the other "alien class" theory, was seen only negatively. Indeed, Normativizm exaggerated formal, legal aspect of law. However, it, like any theory, it is necessary to find a positive

beautiful pictures

57_wallpaper_picture (2).jpeg

Constitutional law

Пред След
Яндекс.Метрика