THE PROBLEM OF LEGAL VALIDITY IN THE ANTI-METAPHYSICAL APPROACH (ALF ROSS’S CONCEPTION)

• Main Author: Natalia S Vasilyeva
• Format: Article
• Language: English
• Published: Peoples’ Friendship University of Russia (RUDN University) 2017-12-01
• Series: RUDN Journal of Law
• Subjects: действительность права; природа права; действенность права; эффек-тивность права; нормативность права; обязывающая сила; Альф Росс; скандинавский правовой реализм
• Online Access: http://journals.rudn.ru/law/article/view/16957

The article analyzes the main approaches to the problem of the validity of law. As a result a num-ber of aspects of the phenomenon designated as “the validity of law” are distinguished: normative sig-nificance, social and (or) psychological efficiency, objective givenness, a binding force. To fill the gap in the theoretical constructions the author proposes such a notion of the validity of law that is independ-ent of philosophical approaches. Legal validity is defined as a specific mechanism (force) of normative influence on people’s conduct. Therefore, the binding force of law is considered not as an obligation to obey the law, but as a mechanism of giving rise to legal obligations. Moreover in this article all existing variations of providing a rationale for the validity of law are classified into two main approaches: meta-physical and anti-metaphysical. Alf Ross’s (Danish legal philosopher, one of the most prominent repre-sentatives of Scandinavian legal realism) concept of legal validity is considered as a perfect example of the anti-metaphysical approach and is reconstructed along with the analysis of major terminological is-sues, which occur in translations and studies of his legacy. The author concludes that a key to a proper understanding of Ross’s concept is an appropriate terminological division between the two basic con-cepts, which reflect his viewpoint regarding the validity of law in the context of Is-Ought problem in law. The author proposes to translate the Danish term «gælden» into Russian as «deistvennost'«, since it concerns law in force and its effectiveness, and «gyldighet» as «deistvitel'nost'«, since it implies a bind-ing force of law related to oughtness. Ross considers the former as a revelation of the latter in the reality and as a proper subject of jurisprudence (doctrinal study of law, based on strict empiricism, non-cognitivism, coherentism).