The scientific-practical Law Journal “Almanac of Law” Volume 11 (2020),
52-56 p.
DOI:10.33663/2524-017X-2020-11-9
Lutsky R. Ð. Doctrinal features of positive law
Research of term a law is conducted already long time. However sufficiently small attention is spared to opening ñóòíîñò³ of signs, that expose the underlying structure of setting and role of such category as a «positive law». The ñóòí³ñí³ signs of positive law represent the central formula of this category, quintessence of concept «law» is represented in that.
A term «positive law» expresses by a soba rule of behavior, that is accepted and it is sanctioned by the state and has obligatory character . In addition a positive law outlines concrete direction of development of legislative process of the corresponding stage of development on that there is the state and exceptionally it in combination with an absolute law is a that instrument that directs development of society and state system.
The general theory of positive law, which summarizes the data of analytical jurisprudence, is a self-sufficient legal science, the subject of which is the dogma of law. It is with its «branches» (history of law, comparative law) and in conjunction with the sociology of law, occupies a worthy place in the system of legal sciences, performs in the whole complex of legal knowledge its special and irreplaceable functions of the sphere of law. And positive law is the basis of this theory, and determining the nature and characteristics of this category is crucial to understanding the positive approach to understanding the basics of lawmaking.
Ðositive law is inextricably linked to state coercion because the very notion of «mandatory legal rules» presupposes the possibility of violating them; positive law. However, in the contemporary realities of world-wide democratization of social life, the binding nature of legal norms is most effectively «supported» not so much by the possibility of applying state coercion for their violation, but by the sociocultural component of their content, which provides the subjects with the awareness of the need for their voluntary and useful implementation in the appropriate form.
Òhe essential features of positive law in the article reflect the central formula of this category, which reflects the quintessence of the concept of «law»; this formula can be supplemented and modified, but it cannot be without prejudice to the disclosure of the content, structure and mechanism of action of law.
Keywords: dogma, law, signs of law, positive law, society, state, system, obligatoryness, state compulsion.
References
1. Leist O. E. The essence of law. Problems of Theory and Philosophy of Law / Ed. V. A. Tomsinova / O. E. Leyst. – M. : Mirror, 2008. – P. 80-84.
2. Lloyd D. The Idea of Law / Trans. with English. M. A Yumasheva, Yu. M. Yumashev; scientific ed. Yu. M. Yumashev / D. Lloyd. – M. : Yugon, 2002. – P. 49.
3. Marchenko M. N. Problems of general theory of state and law: textbook. : in 2 volumes T. 2. Law / M. N. Marchenko. – 2nd ed., Remaking. and ext. – M. : T. C. Velby, Prospekt Publishing House, 2008. – P. 21-22.
4. Trubetskoy E. N. Encyclopedia of law / comp. A. P. Albov, M. B. Revnov; open Ed.: V. P. Salnikov; open ed., composed by D. V. Maslennikov / E. N. Trubetskoy. – St. Petersburg : St. Petersburg Publishing House. lawyer. In-ta, 1998. – P. 22.
5. Shemshenko Y. S. Law // The Great Encyclopedic Legal Dictionary / Ed. Acad. NAS of Ukraine Shemshenko. – K. : Law. Opinion, 2007. – P. 213.
6. Shemshuchenko Y. S. What is the Law? / Yu. S. Shemshuchenko // At the crossroads of centuries. Selected works. – K. : «Legal Thought», 2010. – P. 95.
7. Shendlin B. V. The essence of Soviet law / B. V. Sheindlin. – L. : Leningr. Publishing House. Univ., 1959. – P. 7.
8. Erlich E. Grundlegung der Soziologie des Rechts / E. Erlich. – Munchen und Leipzig: Duncker & Humblot, 1913. – S. 17.
9. Jouvenel B. On Power: The Natural History of its Growth / B. Jouvenel. – N.-Y. : Beacone Press, 1967. – P. 195-27.
<< Back
