On the peculiarities of the legal-philosophical methodology

Abstract

The article is the answer to the critical remarks of O. V. Martyshyn as regards the nonclassical approaches to law in the former Soviet Union. Noting a number of benefits aimed at updating the subject matter difference between the philosophy of law and the general theory of law, as well as the specific character of the philosophical and legal methodology, the author of article nevertheless has to admit that prof. O. V. Martyshyn has failed to achieve his goal. Thus, the critical analysis of the legal conceptions of a number of contemporary legal scholars — V. P. Malakhov, S. I. Maksymov, I. L. Chestnov — is based on the methodological presuppositions which are inadequate to the philosophical and methodological basis of the mentioned view. According to the author, the reason for this lies in the lack of O. V. Martyshyn’s attention to the specific character of the subject of the legal philosophy and its methodology without recourse to which it is not possible to fully understand either the methodological role of the philosophy of law or its conceptual implications. As the result, we have come to the conclusion that O. V. Martyshyn’s critical remarks are fruitful only to the extent that it makes us re-consider the fundamental legal issues, namely the methodology of law, the difference between the philosophy and the theory of law, the specific character of non-classical legal doctrines. At the same time, the attempts to criticize some contemporary approaches to law in the former Soviet Union without taking into account the achievements of the world philosophy of law of the second half of the 20th century often lead to their inadequate interpretation. The judgments regarding the recent approaches to law are based on the old concepts and, thus, lose their heuristic value. 

Keywords:

philosophy of law, subject matter of the legal philosophy, non-classical understanding of law, methodology of the philosophy of law, dynamic understanding of law