D. Bugajova, Cand. Philol. Sc.
S. V. Myasoedova, O. O. Uvarova
Kharkiv Yaroslav Mudryi National Law University
TOP
SPOT OF THE THEORY OF LEGAL POSITIVISM: WHY?
Indisputably
the theory
of legal positivism is one of the most popular concepts of the origin of law at
the present stage of the society development. In particular, to prove this
thesis, it is enough to refer to its history, which begins with the appearance
of the first states in Egypt and reaches its climax in the mid-18th century. The first
known references of positive rights belong to the 20 B.C. Thus, in that time
the Laws of Eshnunna depicted on clay tablets were created as well as the Laws
of Lipit-Estera - the name of the Governor of the Babylonian state carved on a
stone pillar. These and other laws are connected with the Ancient Babylonian
state, which can be considered the birthplace of written laws. The largest of
the ancient sources of law should be regarded as the Laws of Hammurabi, the king
of the Babylon. These laws occupy a special place in the history of positive
law, because they allowed a fairly wide framework to judge the state of the
ancient positive law.
In addition, the concept of the
legal state is impossible without its realization in the framework of this
positive law despite the direct relationship with natural human
rights.
To start with, I would like to
remember the words of Hegel: «Everything that exists is legal, because it
exists». The main provisions of the positivism theory of law
include the following statements: 1) the main source of law-making process is
the state, the rise of which has caused the development of the Law; 2) the
human rights are identified with the law; 3) the subjective right is derived
from the objective one; 4) the individuals acquire positive rights with the
adoption of relevant legal norms; 5) the recognition and guarantee of
fundamental human rights and freedoms are available through the authorization; 6)
there are two main forms of rights authorization: precedent and legislation; 7)
the positive law is always specific (abstract formulas are excluded) [1].
Most
clearly the essence of positive law is demonstrated by the expression that
states: «If there is the norm of the state, there is a right to something; if
there are no rules, there are no rights». Therefore, in order to convince you
of the leading role of positivist theories of law, I think it makes sense to
pay attention to the following ideas.
First
of all, in response to the opinion that positivism denies morality it should be
noted that morality as
a purely people's ideas about good and evil is totally different for everyone
and is identified with the human rights only in industrially underdeveloped
countries. By the way, if you still pay attention to the influence of morality
on law-making activities, in accordance with the command theory of utiltarism,
the main purpose of the functioning of state institutions is to implement a
public benefit, the universal good of all without exception. Only the right,
but not a morality specifies and details what can and cannot be done.
Furthermore, according to Kelsen - the author of the normative theory of law, ethic is a subject
of philosophy and not of the law and based on the principles of subjectivism, therefore only the law elaborates and gives details on what can be done and
what is forbidden. Secondly, the theory of legal positivism is based on empiricism acts at present in particular
society giving
objective and impartial assessment. So the theory is applicable acts in a
particular period of time in a particular society, giving impartial assessment
on the basis of the real situation, which is possible when there is a direct
connection between the evolution of the state and law, while natural law
develops progressively, taking into account the hierarchy of values. It gives the right to classify the Marxist theory of law as a subsystem
of positivism which also prevails over abstract natural law [2].
Thirdly,
the conflict of public interests can be resolved only under condition of functioning
of the mechanism which is based on the legal authorization and subordinates the
rights of the individual to the needs of society.
From the
Declaration of rights of man and citizen (1789): «The state power is necessary
to guarantee the rights of man and citizen; it’s created for the benefit of all
and not for the personal benefit of those to whom it is subordinated».
Thus, along with the strengthening
of equal rights for all subjects with the same legal status (as in the concept
of natural law) positivism implies the existence of fair restrictions on
offenders. Besides, the undeniable advantage of the positivist
theory is connected with certainty social structure, covered by the norms of
law, as well as their dynamics. Thus, the law which arises in the state differs
from the norms of morality, customs, traditions, corporate and religious norms.
Moreover,
positivism unites different ways of law
formation under the aegis of the rule-making activities of legislative bodies
including the legal precedents and legal customs. What is more, the priority of
positive law is caused by the connection with the psychological theory of the
origin of human rights based on the need for authorities and their orders.
Along with the above provisions, it
is necessary to pay attention to the fact that the positivist law is the
embodiment of ideas of the existing concepts of legal thinking. For example, the historical school of legal thinking became a gradual
transition from natural law to positivism which argues that «the natural law is
the philosophy of positive law» [3; 254]. Such opinion
is supported by Tyson – a scholar who noted that «The rights are causes and not
the consequences of the laws and constitutions». Such direction of natural law
as the neo-thomism supports the decisive role of the state as a means of
ensuring and protection in the creation of conditions for realization of
natural rights. Another direction of natural law - existentialism - interprets
a person as a unique individual and as a result embodies legal guarantees of
freedom of any individual through the provisions of positivist theory.
As for the modern stage of the
development of legal thought, it’s very interesting to pay attention to the
example of the idea of a correlation between the natural and positive law described
by Radbruch. Thus, the common features of legal philosophical studies by this
German scientist allocate the division of philosophy and science as the
separation of the right to the category of ideal and practical (real), and
methodological dualism that forms the idea of understanding the right as the
positive imperative, but from the point of view of relative-and-value
provisions [4; 50]. In addition, an
important place in the philosophy of Radbruch is a brilliant formula that can
be represented by a combination of elements such as fairness, appropriateness,
which refers to the relationship of proportionality and reasonableness that is
formed by the combination of security, cognitivism and stability.
So,
from all of the mentioned above we come to the conclusion that positivism in
comparison with other conceptual studies of legal thinking is the most
objective, progressive, adapted to the present day, comprehensive and universal
theory. It certainly
proves its leading role among the competing ideas.
References:
1.
Теорія
держави і права: підручник для студ. юрид. вищ. навч. закл. / О.В. Петришин, С.П.
Погребняк, В.С. Смородинський та ін.; за ред. О.В. Петришина. – Х.: Право, 2014. – 368 с.
2.
Філософія
права: Підручник / О.Г. Данильян, Л.Д. Байрачная, С.І. Максимов та ін.; За ред.
О.Г. Данильяна. – Х.: Прапор, 2005. – 384 с.
3.
Загальна
теорія держави і права: підручник / М. С. Кельман, О. Г. Мурашин,
- К.: Кондор, 2006. — 477 с.
4.
Полсон
С.Л. Радбрух про несправедливі закони: суперечливість ранніх та пізніх
поглядів? / С.Л. Полсон // Проблеми філософії права. – 2004. – Том II. – с.
49-59
5.
Бігун
В.С. Класики філософії права: Густав Радбрух / В.С. Бігун // Інститут держави і
права ім. В. М. Корецького НАН України. – 2004. – с. 33-48.