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Formalistic and relativistic aspects of determination of the legal rules in Herbert Hart’s concept of law
Gorbunov Maksim Dmitrievich

Post-graduate student, Assistant, the department of Theory and History of State and Law, National Research Nizhny Novgorod State University named after N. I. Lobachevsky

603115, Russia, Nizhny Novgorod, Ashkhabadskaya Street 4, office #17

maxandgor@gmail.com
Abstract.  
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
DOI: 10.25136/2409-868X.2017.9.22365
Article was received: 23-03-2017

Review date: 20-03-2017

Publish date: 19-09-2017

This article written in Russian. You can find full text of article in Russian here.

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