Rationality as a Fundamental Notion of Legal Philosophy: on the Letter and the Spirit of Law
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Rationality as a Fundamental Notion of Legal Philosophy: on the Letter and the Spirit of Law
Annotation
PII
S004287440003614-0-
Publication type
Article
Status
Published
Authors
Liana Tukhvatulina 
Affiliation: Institute of philosophy, Russian academy of sciences
Address: Russian Federation
Vladimir Krzhevov
Affiliation: Moscow State University M. V. Lomonosova
Address: Russian Federation
Edition
Pages
26-30
Abstract

The authors consider the meaning of the concept of rationality in law. They discuss the concepts of formal and substantive rationality developed by Max Weber in their application to the field of legal reality. The most crucial point here is while the formal rationality provides structural consistency of legal norms and unity of legal interpretations, the substantive rationality is focused on the social purposes of law enforcement. The authors consider “the pure theory of law” by Hans Kelsen in its relation to the idea of justification of the formal rationality in legal theory. They pay special attention as well to some prospects and risks of the “materialization” of rationality in modern law. They claim that we could avoid some risks rising from “the materialization” of law if we put some local goals and purposes of law enforcement into the context of global principles of social organization. The authors argue that the integration of the basic principles of Marx’s and Weber’s social analysis could provide the research with some useful insights on the origins of “substantive” rationality in modern law. The authors try to show that, despite all the theoretical contradictions between Marxian and Weberian approaches, these concepts seem to be compatible in the field of legal rationality. 

Acknowledgment
This paper is prepared with the support of Russian Foundation for Basic Research, project № 18-011-01097 “Social Theory and Authority: Contemporary Russian Perspective” and project № 17-03-00733-ОГН “Systems-communicative approach towards the Russian society”
Received
13.02.2019
Date of publication
19.02.2019
Number of purchasers
89
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758
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References

1. Kasavin, Ilya T. (2017) ‘Norms in Cognition and Cognition of Norms’, Epistemology & Philosophy of Science, 2017, 54, 4, pp. 8–19 (in Russian).

2. Kelsen, Hans (1992) Introduction to the Problems of Legal Theory, Clarendon Press, Oxford.

3. Kennedy, Duncan (2004) ‘The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought’, Hastings Law Journal, 2004, 55, pp. 1031–1076.

4. Krzhevov, Vladimir S. (2015) ‘On the Specific Character of the Methods of Social Sciences’, Epistemology & Philosophy of Science, 2015, 45, 3, pp. 23–28 (in Russian).

5. Tukhvatulina, Liana A. (2017) ‘Rationality in Law: Niklas Luhmann’s Approach’, Epistemology & Philosophy of Science, 2017, 54, 4, pp. 175–190 (in Russian).

6. Wacks, Raymond (2012) Understanding Jurisprudence. An Introduction to Legal Theory, Oxford University Press, Oxford.

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