Kasatkin S.N. The Problems of Specification of Legal Principles in the Doctrine of the “Earlier” R. Dworkin
DOI: https://doi.org/10.15688/lc.jvolsu.2020.3.7
Sergey N. Kasatkin, Candidate of Sciences (Jurisprudence), Associate Professor, Department of the Theory and History of State and Law, Samara Law Institute of the Federal Penitentiary Service of Russia, Rylskaya St, 24V, 443022 Samara, Russian Federation; Associate Professor, Department of the Theory of Law and Philosophy, Samara State University of Economics, Sovetskoy Armii St, 141, 443090 Samara, Russian Federation, This email address is being protected from spambots. You need JavaScript enabled to view it. , This email address is being protected from spambots. You need JavaScript enabled to view it. , https://orcid.org/0000-0001-5541-9181
Introduction: the subject of the paper is the analysis of the concept of legal principles of the authoritative American jurist Ronald Dworkin, formulated by him in the essay “The Model of Rules” and formed the core of his initial challenge to the doctrine of legal positivism. The paper based on the general scientific and specific scientific methods pursues a dual goal – first, to systematize R. Dvorkin’s understanding of the specifics of legal principles and their consequences for the criticism of positivism, and second, to assess the potential of the author’s considered ideas outside of American-British law. Results: the paper summarizes the proposed R. Dworkin’s interpretation of legal principles as standards that differ from legal rules in terms of “logical and regulatory” parameters, the grounds for legalizing and significance in judicial justification, and also shows the connection of this interpretation with the negation of the key ideas of positivism. At the same time, it is noted both an unconventional view of R. Dworkin for the domestic jurisprudence and legal practice, the otherness of the criteria for understanding and specification of legal principles, and the insufficiency of a number of the author’s statements. Conclusions: on the one hand, the paper states the “weakness” of the arguments of R. Dworkin’s explanation of the grounds for legalizing the principles and their strict opposition to the rules; on the other hand, it emphasizes the value of these arguments for explaining the “weight” of the principles and conflicts between them, for understanding the procedures for restricting the fundamental rights, etc., which makes it necessary and possible to further develop the concept of the American jurist, including taking into account the experience of continental and Russian law.
Key words: legal principles, law, positivism, legal system, legal norm, universality of legal theory.
Citation. Kasatkin S.N. The Problems of Specification of Legal Principles in the Doctrine of the “Earlier” R. Dworkin. Legal Concept, 2020, vol. 19, no. 3, pp. 52-59. (in Russian). DOI: https://doi.org/10.15688/lc.jvolsu.2020.3.7
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