Siberian Federal University

Issue

Journal of Siberian Federal University. Humanities & Social Sciences. 2018 11 (12)

Authors

Ershov, Valentin V.

Contact information

Ershov, Valentin V.: Russian State University of Justice 69 Novocheremushkinskaya Str., Moscow, 117418, Russia; evv@rsuj.ru

Keywords

essence; essence of the principles of law; legal regulators of public relations; unified developing multi-level system of forms of nationals and international law; specification of law; legal norms; national regulatory legal acts

Abstract

The article analyses the viewpoints of the leading Soviet, Russian and international researchers specializing in general theory of law and the essence of the principles of law. The author come to conclusions that judicial positivism that had been predominating in the Soviet and Post-Soviet period did not allow researchers to recognize the principles of law as an independent means of legal regulation of social relations with a higher legal force than that of the norms of law, for example, in national regulatory legal acts; the theoretical conclusions of H.L.A. Hart, R. Dworkin and G. Brabant about combination in the principles of law legal reality and moral value are primarily based on scientifically debatable and diverse concepts of integrative legal consciousness, which artificially synthesizes ontologically diverse social regulators, law and non-law, including law and justice in a single system of forms of national and international law. In practice, such legal consciousness leads to endless and unlimited “erosion” of law by non-law, results in unstable, unexpected, diverse and directly contradictory precedents. In the end it leads to the violation of the rights and legal interests of the subjects of legal relations. In accordance with the scientifically based concept of integrative legal consciousness, law is expressed not only in the norms of law, but above all in the principles of law contained in a single, multi-level and developing system of forms of national and international law implemented in the state. Consequently, the principles of law are legal regulators of social relations, and not “ideas”, “origins”, “provisions”, etc. The conclusions were made on the essence of the principles of law: the principles of law are objective legal regulators of public opinions, they are primary ones expressing basic regularities of legal regulation of public relations, the most abstract elements of a unified, developing and multi-level system of forms of national and international law. In the process of their specification the authorized rule-making bodies develop mainly specific legal norms in the forms of both national and international law and also the legal norms in national regulatory legal acts

Pages

2089-2103

Paper at repository of SibFU

https://elib.sfu-kras.ru/handle/2311/109228

This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License (CC BY-NC 4.0).