LEGAL POSITIVISM: HISTORY AND THE PRESENT

Abstract

The article examines the process of evolution of legal positivism and its main postulates, in particular about law as a coercive and authoritarian phenomenon. The scientific heritage of the founders of classical legal positivism (J. Austin) and the continental trend in legal positivism (K. Bergbom) is analyzed. From the standpoint of developing new methodological approaches and prospects for the development of legal science, the theoretical and legal research of G. Kelsen isconsidered, which took place against the background and was combined with the fundamental research of the theory of the state, the principles of democracy and parliamentarism. It is argued that in the second half of the 20th century, under the influence of the teachings of the English lawyer G. Hart, positivists began to abandon the provisions of the imperative theory of law.

Today, attempts to revise the basic postulates of legal positivism are characteristic, in particular, about law as a coercive-power phenomenon. As a result, positivists come to the conclusion that as “positive law” such coercive norms areestablished that are beneficial to those who establish them. The relevance of such a conclusion for modern Ukraine is enhanced by the contradictions between the needs of society and the selfish position of the holder of power, who is able to embody in law variants of mass behavior of people that are beneficial to himself.

It is noted that under the unconditional dominance of normativism and legalism, the manifestations of arbitrariness that Ukrainian society encountered in the 20th century took the form of mass state terror against its own people, totalitarianism, voluntarism, criminalism, corruption, and other abuses of power and law. Therefore, it is argued that state coercion should be present in the sphere of law, but only in view of the fact that it performs a purely instrumental function. Today, legal positivism focuses attention on the normative and institutional aspects of law, without which such essential properties as stability and orderliness are impossible.

For legal science, it is important to develop, in accordance with the new needs of the development of society, not only optimal conceptual and methodological principles of lawmaking of a human-centric orientation, but also effective means of their implementation in state legal regulation.