TROUBLE FOR LEGAL POSITIVISM

The article is devoted to the problem of interpretation of objective law by clarifying the content of legal norms, as well as determining the design features of the external forms of their expression. Questions of interpretation of law are considered from the point of view of the normative approach to law, reflected in the doctrine of “pure law” (“reine Rechtslehre”) by Hans Kelsen. The author determines the methodological and regulatory significance of the distinction between legal norms and legal texts in the analysis of formal sources of law. Particular attention is paid to the consolidation of the main methods (modes) of legal regulation in the rules of law and the importance of their determination in the process of interpreting law. The author establishes that the practical interpretation of the content of legal norms is carried out in two main ways: by interpreting the elements of the formal shell of legal norms (elements of the organization of the legal text as a formal source of law) and by interpreting the elements of the internal content of this formal shell. The fundamental difference between legal norms and legal texts in the issue of regulating social relations is associated with the distinction between methods for interpreting their content. In this sense the significance of the difference between "norms-prescriptions" and "norms-judgments" in the concept of Hans Kelsen is emphasized. The article provides examples from modern German theoretical and legal literature, substantiating the need to distinguish between legal norms and legal texts within the framework of normativism. The approaches of Karl Larenz, Bernd Rüthers, Christian Fischer, Axel Birk and Thomas Westing to the definition of the language form of the rule of law - the so-called “bearer of a legal norm” (Rechtsnormträger), the most important types of legal sentences (Rechtssätze) as carriers of legal norms are specified. The article uses authentic scientific texts in German and for the first time the author's translation of a number of such texts into Russian was made. Conclusions are drawn about the importance of delimiting the interpretation of the content of a legal norm from the organization's interpretation of the external means of its expression; about the difference between the prescriptive and descriptive nature of legal regulation, which determines the key difference between legal positivism and non-positivist concepts of understanding law; on the significance of Kelsen's idea of Stufenbau der Rechtsordnung in interpreting the content of individual legal norms.

Why Legal Positivism?

Mark Greenberg famously argued that conventional legal theories are based on an important shared error: that legislation directly contributes to the content of law. Greenberg points out that there is frequently a divergence between the semantic content of what lawmakers enact and any resulting change in the content of law. Greenberg used this observation and argument as the basis for rejecting conventional legal theories, in particular, legal positivism, and constructing his alternative approach, "the Moral Impact Theory of Law." While Greenberg is correct in observing a divergence between legislative communication and legal content, he is wrong in his diagnosis of the cause of this divergence. There is a simpler explanation for the divergence, and one that does not require rejecting (or, for that matter, accepting) legal positivism. The divergence between legal content and the communicating content of individual acts of legislation can be understood by focusing on law as a form of practical reasoning. The idea that practical reasoning is central to law is hardly new: it is an integral part of the legal positivist theory of Joseph Raz and the natural law theory of John Finnis, and can arguably be traced back to Thomas Aquinas, and perhaps beyond. This Chapter will revisit the importance of understanding law in terms of practical reasoning, and show how this focus can explain the divergence that troubled Greenberg, without requiring recourse to his Moral Impact Theory or any other substantial revisions to conventional jurisprudential thought.

In emphasizing the importance of the separability thesis, legal philosophers have inadequately appreciated other philosophically important ways in which law and morality are or might be connected with one another. In this article, I argue that the separability thesis cannot shoulder the philosophical burdens that it has been asked to bear. I then turn to two issues of greater importance to jurisprudence. These are ‘the moral semantics of law’ and ‘the normativity of theory construction in jurisprudence’. The moral semantics claim is that legal content is best understood as moral directives about what is to be done and who is to decide what is to be done. The problem is that legal positivists typically hold that only social facts contribute to the content of law, and it is hard to see how a positivist can hold both the social-facts claim and the moral-semantics claim. I argue that not only are the two claims consistent with one another, but that legal positivists must hold some version of the moral semantics claim if they are to make sense of the claim that legal reasons purport to be content-independent moral reasons for acting. In Section 3 of the article, I take up the question of whether theory construction in jurisprudence is normative or descriptive. This is hard to do in part because so little attention has been paid to correctly formulating the issue. I suggest a demanding test for descriptivism; namely, that an adequate analysis of law can be provided entirely in terms of its formal features. I then defend this claim against three arguments designed to show because governance by law is necessarily desirable or valuable that, we cannot characterize law without making reference to those values or to other material features of law. This constitutes a limited but powerful defence of descriptive jurisprudence.

Legal experts can reliably ascertain which legal norms are valid, and therefore which legal propositions are true. Legal experts are in this position because they have a grasp of the deep cognitive structure of law: the habits, commitments, and values that characterize the practice of legal argument in a specific jurisdiction. Legal expertise, thus understood, determines the content of the law, which is therefore not reducible to an aggregation of authoritative legal texts. Because social facts about legal experts’ values and commitments can determine the content of the law, references to moral considerations and principles of justice as valid legal reasons, in legal argument, are not a problem for (at least some forms of) legal positivism. Legal expertise thus shows that non-positivists might be right about (as they would put it) the irreducibility of legal content to communicative content without being right about the claims that moral facts determine the content of the law or that the validity of legal norms turns on moral considerations. Legal expertise also plays an important causal role in legal decision-making and is not, as some of the literature on judicial decision-making might suggest, epiphenomenal. From a moral perspective, while the existence of a class of legal experts is not necessarily valuable, it does have certain benefits, particularly in conditions of moral disagreement.

Problem setting. The question of the vulnerability t is discussed here in a multitude of contexts: from our attitudes and understandings about what lives in different groups and categories in society is alike, from the socio-psychological and social-ecological meaning of being vulnerable, to the existential, mental and emotional meanings at the level of the individual.Recent research and publication analysis. The author focuses very strictly on the vulnerability of the individual and recuses the use of moral doctrines to understand individual vulnerability and he also recuses the huge literature which has focused so strongly on it. He situates himself more in line with Jean Piaget and Lawrence Kohlberg, experimental behaviour psychology and clinical psychology, where «moral» is both situated within, and constitutive of, the individual.Paper objective: The objective of the author is to give us a plurality of points of reference to understand and appreciate the vulnerability of the individual whilst giving simultaneously an account of this understand within legal philosophy.Paper main body. The author insists that we should understand the vulnerability of the individual in a broad and complex way. The article does not attempt to do so from any specific philosophical tradition nor cultural setting as the author insists that only from a situated understanding of the vulnerability of the individual can we meet the exigency of universality. The individual - and the human condition, are always vulnerable and can no more escape their vulnerability than the individual can escape their shadow.It is from this standpoint that the perspectives of human rights, their effectiveness and potentiality, introduce themselves! If human rights are also a right to do ’stupid things’, to be ’left alone’, then they could also legitimise the right of others to protect the individual from doing stupid things: a Good-Samaritan paradigm; but also a question about legitimisation, and about the questionability of using «vulnerability» to police human behaviour! And still, vulnerability used in this way can be beneficial to the individual, as we can see in the case of children, young adults, and even elderly persons with cognitive deficits, who we should protect because of their vulnerability. We should however exclude ’moral considerations ’ as a principle in our examination of vulnerability, to better understand and identify what we consider a threat to the vulnerability of the individual. In legal science, such an understanding of the «vulnerability of the individual» enables us to focus on any predatory, rapaciously, or destructive behaviour. The author therefore insists that we both need and need not, protect the individual. Examining the question of the vulnerability of the individual should give us a better insight in this ambiguity and help us better understand some aspects of predatory and criminal behaviour directed against individuals.Conclusions of the research. The author firmly insists that we should always accept the individual as their present themselves. A perfectionist stand in moral and legal philosophy is therefore firmly excluded. It is also firmly stated that protecting human vulnerability can only be done by accepting the freedom of others in their integrity.

The role of customs is vital in the implementation of FTAs. However, relatively little research is devoted to the role of customs under the FTA scheme. The juridical problem regarding the role of the customs authority from the aspect of international trade law can be seen from the many disputes over FTA import duty tariff by customs. International disputes regarding the Rules of Origin (RoO) continue to escalate more with the increasing volume of international trade devoted to preferential treatment, such as the Free Trade Agreement (FTA) scheme. Identification of the problems studied in this study is how to reconstruct the role of customs in free trade under international cooperation legal politics. Normative legal research is carried out using two approaches, namely: a conceptual approach (conceptual approach) and a statutory approach (statute approach), to examine problems in the content of legal norms, which are the legal basis for Customs Administration actions. The research aims to direct the establishment of law in the field of FTAs in line with Indonesian legal and constitutional politics. The results findings indicate that there is a conflict of interest in the main task of collecting state revenues with the consequences of the FTA in the form of tariff reductions. The target of state revenue from the international trade sector is eroded with the reduction in FTA import duties. A reconstruction of the role of Customs is needed in the development of FTA law in line with The Politics of International Cooperation Law. The reconstruction is carried out, firstly, by reforming the customs vision so that it is not merely revenue-oriented. Secondly, Reconstructing customs law that is clear, detailed, simple, and has legal certainty so that there is no ambiguity, multiple interpretations, and inconsistency in its application. Then, building a new paradigm of compliance framework based on cooperative compliance to create transparency and mutual understanding between importers and customs authorities and, finally, enhance tariff liberalization and synergy with Tax Administration.

The interrelation between public and private interests lies at the core of sustainable natural resource management. Although the legal systems of different countries may contain similar formal provisions, the actual balance between these interests is often determined by deeper conceptual, cultural, and political factors. In the field of environmental law and policy, the definition of the concept of “public interest” plays a key role—not only in the distribution of responsibility but also in shaping societal attitudes toward nature. This article explores how public interest in the sphere of environmental resource use is formed and implemented by comparing the approaches of Ukraine and Germany. Despite largely similar private interests and legal regulation, these countries demonstrate fundamentally different environmental outcomes. The article argues that the key difference lies not in the content of legal norms, but in the fundamental political approach and environmental philosophy, particularly in the presence or absence of adaptive governance models. Based on a comparative analysis of four sectors—water use, forest use, subsoil use, and land use—it is shown that Germany applies a more ecocentric, ecosystem-based, and adaptive model of public interest formation. Drawing on this experience, the article examines the possibilities for introducing elements of adaptive environmental policy in Ukraine—in the context of post-war recovery and ecological modernization. Keywords: adaptive governance, public interest, sustainable development, environmental policy, environmental resource use

Some study revealed the absence of a generally accepted approach to determining the requirements for the efficiency and effectiveness of technology as an object of civil and economic relations. The need to form recommendations on the content of legal norms and contractual clauses that can be used to fix them in the specified means of regulation is substantiated. It is proved that provided that the current legislation of a particular country fixes universal criteria for determining the effectiveness of technology, this will have a positive impact on their transfer. Thus, on the one hand, all participants in the relationship of technology circulation will receive indicators and an understanding of how to separate an effective technology from pseudo- and outdated technologies. On the other hand, public officials will have a guideline on what technologies cannot be provided with budget funding and support. And the parties to the contractual relationship will be able to fix in the relevant agreements more effective protective clauses, which will help protect their legitimate interests and stabilize investment risks. Existing approaches to determining the degree of efficiency of technologies were defined and systematized. The analysis of the feasibility and possibility of using macroeconomic and local performance indicators was carried out. General circumstances have been formed that affect the formation of the category of technology efficiency. These include the territory and level of technological development of the implementation area. The suitability and adaptability of the technology to the ability to perform the tasks assigned to it and others. As a result of the study, universal designs for identifying the effectiveness of the technology were proposed. They are proposed for use in the formation of national and international legislation and protective contractual clauses

The word “unsubscription” has long been firmly used by Russian citizens, but this social phenomenon has not yet been studied in practice in legal science. In this article, the Author tried to fill this gap and analyze the nature of the replies of modern Russian officials, classify them, and identify the causes and conditions that determine them.When preparing the article, we used methods of formal logic-comparison, description, classification, analysis, synthesis, etc., which allowed us to characterize the existing system of consideration of citizens from the position of its normative content. Among the private scientific methods, the formal-legal method used in the analysis of legal norms on consideration of appeals was used; logical-legal method, by which the content of legal norms in relation to the problem under consideration was studied; specifically, it is a sociological approach that was used in the analysis of statistical data related to the research problem.The Author offers a classification of unsubscriptions depending on their content, the motive for writing, the circle of subjects, and the degree of multiplicity. Separately, the article analyzes formal responses with little content, sent from higher and Supervisory authorities, if the applicant applies to them after receiving a response from another authority and disagrees with it. On the example of specific unsubscriptions, we analyze options for evading inspections by law enforcement officials related to violations of the rights of citizens-applicants.The author cites corporate rules of conduct, a desire to get rid of work, “defending the honor of the uniform”, excessive secrecy of activities, as well as the impunity of the official who prepared the response as reasons for the formal attitude to his responsibility for a comprehensive and objective review of appeals.Take measures to prevent violations of the rights of citizens in the sphere of consideration of their applications, in particular, the introduction to the Code of the Russian Federation on Administrative offenses of article 5.59, not removed the relevance of the problem. As a rule, punishments under this article occur due to violation of the terms of consideration of appeals or even from evasion of giving a response to appeals, but the completeness and semantic load of the response itself are not studied. The author makes some suggestions for improving the effectiveness of interaction between people and authorities.

Issue under consideration: existing legal resources to support gender equality in the workplace. We systematised the provisions of Kazakhstan labour law, which should guarantee the prohibition of discrimination based on sex. The analysis resulted in five themes: “Characteristics of women’s labour”, “Analysis of labour laws differentiation”, “Evaluation of labour rights discrimination” and “Characteristics of the new labour legislation of the Republic of Kazakhstan”, “Characteristics of workers with a special social status”. We analysed the essence of the method of differentiation of labour legislation, which affects the establishment of special working conditions for women and workers with family responsibilities. We suggested a correlation between the content of legal norms and the level of guarantees of gender equality in the labour market. The results show that family circumstances, gender equality are factors influencing the formation of labour legislation, state policy in the field of wage labour. The creation of a favourable environment for labour relations of the considered categories of workers should be carried out through labour contracts, acts of the employer, social partnership agreements, collective agreements. However, priority should be given to normative acts of national action. Ensuring gender equality in fact always requires the implementation of special measures by the employer, which must be guaranteed by a coercive state mechanism. At least this thesis is true for the conditions of Kazakhstan, a country with a transition economy, when business does not have high social activity, and state power is in a period of transformation. Importance should be given to the monitoring and implementation of international obligations in the field of ensuring the prohibition of discrimination, the implementation of best practices and standards. The post-Soviet law of Kazakhstan recognises the priority of international law over national law, and this channel should be maximally used to promote the value of gender equality.

The Indonesian Civil Code (KUHPerdata), a legacy of colonial law, has been in effect for over a century and is increasingly unable to address the normative challenges posed by the digital era and globalization. These include the lack of regulation concerning electronic transactions, personal data protection, digital assets, and cross-border dispute resolution. This study aims to assess the current capability of KUHPerdata to meet modern legal demands and to propose a renewal approach based on relevant legal principles and theories of legal formation. Using a normative juridical method with a statute approach, this research analyzes primary, secondary, and tertiary legal materials through descriptive analysis. The findings reveal significant normative limitations of KUHPerdata in responding to socio-economic and technological transformations. Legal reform is therefore urgently required, based on the principles of justice, legal certainty, freedom of contract, and consumer protection, and grounded in legal theories such as natural law, legal positivism, progressive law, and living law. The renewal must aim to create a responsive and globally integrative civil law system that can accommodate technological advancements and international legal standards. In conclusion, reforming KUHPerdata is not only a legal necessity but also a strategic effort to enhance Indonesia’s legal competitiveness in the global legal landscape.

O jurista britânico John Austin está inserido no limiar do desenvolvimento da tradição juspositivista. Sua obra, que data da primeira metade do século XIX, foi especialmente importante para a fixação dos elementos básicos dessa vertente do pensamento jurídico. Entre suas contribuições para a doutrina juspositivista está a sua formulação da tese da separação entre o direito e a moral. No âmbito ético, por seu turno, John Austin foi um fervoroso utilitarista e defendeu a utilização do princípio da utilidade como o único critério racional para o desvelamento das normas morais superiores (as leis divinas). Considerando essas duas dimensões do seu pensamento, há muito se questiona se a sua ética utilitarista teria influenciado, de algum modo, a sua teoria jurídica, especialmente no que tange à tese da separação. Esta última, que está no centro da tradição juspositivista, tem sido interpretada de diferentes modos no debate jurídico contemporâneo. Uma vertente em especial, o chamado positivismo ético, abriu novas perspectivas para o estudo dessa tradição, ao defender a teoria juspositivista como um modelo teórico moralmente satisfatório para os sistemas jurídicos contemporâneos. Desse modo, utilizando a premissa central do positivismo ético (de que existem razões morais para a defesa da tese da separação) como instrumento metodológico- interpretativo, pretende-se retomar a questão da relação entre as convicções éticas e jurídicas de John Austin, a fim de compreender quais foram as razões morais que o levaram a defender a separação entre o que é o direito e aquilo que ele deveria ser.

The degree of dissonance in public opinion as regards the efficiency, or lack thereof, of the present administration has been growing by the day. From the most magnanimous of issues, like pandemic response, to the minutest, such as how the President has constantly picked up petty quarrels with the opposition by cursing them on nationally televised appearances, the general public has been at the brink of utter discord on how to accept the actions (even inactions) of the sitting administration.
 This divide in public opinion has only been heightened with the decision of Congress on 10 July 2020, after months of exhaustive and comprehensive hearings, to deny the grant of franchise to the multi-media and broadcast giant, ABSCBN, at a time when the surge of the pandemic is climbing at its summit. On the one hand, there are those who believe that this is simply an assertion of the supremacy of Philippine legal system in application and interpretation, given the perceived violations of ABS-CBN of some domestic laws and even the restrictions of their previous franchise; on the other hand, some construed this is nothing more than a stubborn flexing of the administration’s institutional muscles to bring down its opponents and suppress views that are adversarial to the government.
 And while ideally, the harmonization of both law and morality (or justice) ought to be the goal of every State, the differences in the interpretation of the concept of morality, as well as diversity in culture and tradition. This dilemma between law and justice, legality and morality, has been the subject of a long line of philosophical and sociological debates, as well as an amusing source of confusion in the varying (sometimes even conflicting) decisions of the Philippine courts in the interpretation and application of laws. Ultimately, the question boils down into the legitimacy of laws. 
 For this purpose, the researcher will focus on legal positivism from the perspective of John Austin to address the aforementioned dilemma.
 References
 Printed Materials
 Agabin, Pacifico. Mestizo: The Story of the Philippine Legal System. Diliman, Quezon City: Universityof the Philippines, 2011.
 Austin, John. The Province of Jurisprudence Determined. London, UK: John Edward Taylor, 1861.
 Bix, Brian. Natural Law Theory, A Companion to Philosophy of Law and Legal Theory, 2nd edition.Oxford, UK: Blackwell Publishing Ltd., 2010.
 Coleman, Jules and Leiter, Brian. Legal Positivism, A Companion to Philosophy of Law and Legal Theory, 2nd edition. Oxford, UK: Blackwell Publishing Ltd., 2010.
 Jones, W.T. A History of Western Philosophy: Hobbes to Hume, 2nd edition. San Diego, California: Harcourt Brace Jovanovich, Inc., 1969.
 Ruggiero, Vincent Ryan. Thinking Critically About Ethical Issues, 8th edition. New York, USA: The McGraw-Hill Companies, Inc., 2012.
 Internet Sources
 Chan Robles Virtual Law Library - www.chanrobles.com
 Internet Encyclopedia of Philosophy - www.iep.utm.edu
 Stanford Encyclopedia of Philosophy - www.plato.stanford.edu

A Realistic Theory of Law (Book Review)