Positivism and Natural Law: A Conflict of Interpretations?

The aim of this article is to analyze the mutual interpretations of the ideas of positivism and jusnaturalism. The author proceeds from the fact that in the controversy of the supporters of these types of legal understanding, as in any discussion, mutual understanding, mutual alignment of positions, as well as compliance with the expectations of each of the parties, are necessary. Meanwhile, positivists (E. Bulygin) and jusnaturalists (L. Fuller, J. Finnis) note the inauthenticity of interpretation models of these types. The author primarily sees the positivist models of the centuries-old tradition of jusnaturalism as debatable. She uses the method of analysis of discrepancies of the natural law tradition in its reproduction by positivists found, for example, in J. Finnis's criticism of interpretative models in the works by H. Kelsen and H.L.A. Hart. According to the author, understanding the polemics of positivists and jusnaturalists, it is necessary to take into account that the common-European style of lawyers' thinking was largely formed under the influence of natural law axioms. All "strong-willed" theories of law (positivism, Marxism) have freed themselves from the dualism of natural and positive law inherent in classical jusnaturalism. The author critically examines the positivist interpretations of the doctrines of natural law and argues her own position in assessing the various stages of of jusnaturalism evolution, from antiquity to the present. The author becomes a participant in a polemic with positivism, sharing Finnis's anti-utilitarian interpretation of fundamental human rights (not his conception as a whole). She believes that the ethics of human dignity should be recognized as the semantic reference point of the existence of law, the criterion of its "human dimension". In conclusion, the author pays special attention to interpretation by positivism of the dualism ideas of natural and positive law, the absoluteness of natural law principles, their immutability inherent in the classical tradition of jusnaturalism, but subjected to rethinking in modern non-classical theories of natural law (contractualist and others). In this regard, the article discusses the adequacy of recognizing such theories as natural legal theories (maybe this is a "third", "another" way in the philosophy of law?). The author comes to the conclusion that such theories are attributed to the natural legal tradition, emphasizing, however, that the innovative continuity of modern doctrines on natural law remains controversial. The author also outlines the possible prospects for a further development of this tradition within the framework of the policy of law freed from the "false interpretations" (L.I. Petrazycki) of its historical past.

Keywords

Authors

References