On the Diversity of "Pure" Doctrines of Law / О разнообразии «чистых» учений о праве

Горбань Владимир Сергеевич доктор юридических наук заведующий сектором философии права, истории и теории государства и права, руководитель Центра философско-правовых исследований, Институт государства и права Российской академии наук 119019, Россия, г. Москва, ул. Знаменка, 10 Gorban Vladimir Sergeevich Doctor of Law Head of the Department of Philosophy of Law, History and Theory of State and Law, Head of the Center for Philosophical and Legal Studies, Institute of State and Law of the Russian Academy of Sciences 119019, Russia, Moscow, Znamenka str., 10 gorbanv@gmail.com Другие публикации этого автора

Груздев Владимир Сергеевич доктор юридических наук председатель Правления, Общероссийская общественная организация «Ассоциация юристов России», главный научный сотрудник сектора философии права, истории и теории государства и права Института государства и права РАН 119019, Россия, г. Москва, ул. Знаменка, 10 Gruzdev Vladimir Sergeevich Doctor of Law Chairman of the Board, All-Russian Non-Governmental Organization “Association of Lawyers of Russia”; Chief Researcher of the Department of Philosophy of Law, History and Theory of State and Law of the Institute of State and Law of the Russian Academy of Sciences 119019, Russia, Moscow, Znamenka str., 10 vsgruzdev@yandex.ru Другие публикации этого автора

In the modern literature on legal issues, one can find an extremely diverse representation of legal schools, trends of legal thought, concepts, doctrines, teachings, etc. Many of them are definitively and accurately identified, leaving no significant doubts about the originality of the name and the author's development of conceptual and other significant aspects of understanding the law. However, there are often confusing phenomena that, with some negligence in relation to the world history of legal knowledge, broadcast inaccuracies and false or distorted ideas about attempts to contribute to the development of legal science. Moreover, this often happens both for ideological reasons and for reasons of following the current fashion. One such example is what is traditionally referred to in the literature on the history of legal thought as the pure doctrine of law. This name is attributed to the Austrian lawyer Hans Kelsen. This is partly true. Indeed, he wrote an essay in German, which was called The Pure Doctrine of Law (1934) ^[4]. Earlier, his other work, The Problem of Sovereignty and the Theory of International Law: a Contribution to the Pure Doctrine of Law (1920), was published ^[5]. But what a paradox! In the history of legal thought, there already were legal works called Pure Doctrine of Law, Pure Law, and Pure Natural Law ^[8] that appeared much earlier, some of them at the end of the eighteenth to the early nineteenth century. There were also works by major thinkers in which the idea of pure knowledge of the law and pure rights were discussed and explained in detail.

And here, a logical question arises: did Mr. Kelsen actually create a pure doctrine of law? Perhaps this is just some kind of interpretation of "purity" in legal teachings? Maybe different authors had different interpretations of the "pure" doctrine of law in mind. And what should the requirement of a "pure" explanation of law mean? At least, knowing about the works of different years and different authors who demanded "pure law" or "pure doctrine of law," should we talk about a possible new reading of the old methods of legal knowledge? In any case, the "pure doctrine of law" is represented by many thinkers of different eras and at a certain historical period. Kelsen also interprets the law and the meaning of the term "pure doctrine of law." He is by no means the creator of the pure doctrine of law.

If you dive into this topic about the pure doctrine of law and its variants, you might become confused about the interpretations of "purity." Otherwise, a very strange picture of the history of legal thought turns out when one small fragment of it is extracted from it and, without any attention to predecessors and contemporaries, is considered an original phenomenon. The study of the requirement of the so-called pure knowledge of the law is still a promising task, as there are no studies in which the nature and various interpretations of this requirement have been analyzed and explained. It should also be noted that in the works devoted to studying Kelsen's legal ideas, there are almost no clear explanations of the origins of his pure method about the presence of multiple interpretations of this criterion long before the works of the Austrian lawyer. For example, at the turn of the nineteenth to the twentieth centuries, only the lazy did not write about the purity of the legal method. Moreover, in the nineteenth century, one of the main topics in the history of legal thought and philosophy of law was the search for criteria for the scientific nature of jurisprudence as soon as various scientists did not try to arrange and rebuild the legal science, which in almost every case was accompanied by the assertion of the results achieved in the knowledge of the law as the most appropriate method. For example, whole groups of theories about the law reproduced methods and techniques of cognition from the field of natural sciences, requiring exceptionally accurate and verifiable knowledge from jurisprudence. Natural sciences were the reference point for obtaining a clean and reliable result in research and explanations of the law. Some authors argued that pure knowledge can be achieved only if the law is rebuilt on the basis of the methods of natural sciences. Others argued that pure cognition should be mathematical or strictly formal. It should also be mentioned that different definitions were used in synonymous meanings, such as "correct law," "successful law," and "pure law."

M. Yeshtadt, a researcher and commentator on Kelsen's work, writes in the preface to the publication of the latter's book Pure Doctrine of Law: "... the term ‘pure doctrine of law’ is ambiguous: it denotes the German-language main work of Kelsen ...; it is used to denote ... the corpus of ideas of (ideologically) critical legal positivism, which was developed and improved by Kelsen throughout his life; and, finally, it serves to identify the circle of young jurists formed around Kelsen's personality and creativity, especially in the period of the 1910s–1930s, also known as the Vienna School of Legal Theory or the Young Austrian School of Legal Theory..." ^{[4, p. 22]}. Of all the above descriptions of ambiguity, only the fact that Kelsen published a book in 1934 called The Pure Doctrine of Law, in which he tried to substantiate the understanding of the law as norms, arguing that it is not the subject that determines the method of cognition, but the method of cognition determines the subject. Moreover, unlike other contemporaries who argued that the law could be studied by different methods, Kelsen reduced methodological pluralism to a single method. Unfortunately, such a set of ideological statements has formed around Kelsen for various reasons, especially about some incredible super originality of normativism. In general, I must say that many other pure doctrines of law look no less interesting and original, not to mention that many of the ideas expressed by Kelsen were well-known before, including the understanding of the law as a system of compulsory norms, the idea of the basic norm, the interpretation of the law as a normative order, the interpretation of legal theory as a formal science, etc. (R. Iering, R. Birling, A. Merkel, R. Stammler, and many others).

One of the most outstanding German lawyers of the nineteenth century, Otto Friedrich von Gierke, mainly an adherent of the views of the historical school of law, in the published report The Social Task of Private Law, which he read before the Vienna Law Society in 1889, said: “Pure science has access only to the question of what is, and not about what should be” ^{[2, p. 1]}, explaining that “accordingly, the science of law as such should deal only with the great historical reality, which we call the law" ^{[2, p. 1]}. And to understand such a reality, as von Girke believed, it is possible only by recognizing the goals that give the law this or that image, or, what is the same thing, "tasks in the life of human society that the rule of law performed in the past and performs in the present," as well as ideas about such tasks that had a determining effect on the formation of the law influencing or exerting now. If these conditions are met, then, as von Girke emphasized, the science of the law is "in the sphere of strictly scientific research" ^{[2, p. 1]}.

Vladik Nersesyants wrote about the "purity" in Kelsen's doctrine of law: "Kelsen's concept of jurisprudence, focused on the ‘purity’ of the positivist theory of law, essentially rejects not only various kinds of natural legal doctrines but also the philosophy of the law in general as metaphysical and ideologized teachings that do not meet the positivist criteria of a "strictly scientific understanding of the law" ^{[1, p. 764]}.

In 1906, Rudolf Stammler wrote that together with the legal methodology (the main brainchild of legal neo-Kantianism!), it is gradually becoming possible to "critically substantiate and systematically present the pure doctrine of law" ^{[10, p. 507]}. It is just missing, Stammler complained, and the future of all the features of the law and its science depends on its thorough development ^{[10, p. 507]}.

In 1921 in The Philosophy of Law, Stammler wrote about the law as a pure form of thinking. According to his concept, "the subject of philosophical and legal research" is "a system of pure forms in which we legally think" ^{[13, p. 4]}. He believed that as soon as a person begins to think legally, comprehends their desire as legal, or asserts or disputes it as fair, then immediately the conditional material of aspiration or persistent desire begins to be considered in some unconditional monotonous form. The ideas of the law and justice represent uniform and standard ways to define and guide demands and desires. Any thinking person, consciously or unconsciously, carries out a single ordering in this way, which occurs through several pure concepts and principles ^{[13, p. 5]}, manifesting themselves as the idea of law and as a necessary condition for legal thinking.

Pure forms of legal thinking are not innate. They have no separate existence for themselves. "They occur only within the historically conditioned legal material and arise for each individual in his special legal experiences" ^{[13, p. 5]}.

The characteristic "pure ideas" refers not to their origin but to their actual value. They are called upon not only for the clear processing of certain limited special issues but relate to the ordering methods of any ever-possible content of consciousness ^{[13, p. 6]}. In this regard, Stammler emphasized the fundamental importance of the fact that the world of thoughts should be studied primarily from the point of view of a cognitive-critical position and only then from a real-psychological point of view. According to Stammler, there are pure and conditional forms of thinking. Pure forms are ideas that logically do not depend on any other, the final conditions for the ordering of our consciousness. They do not assume that certain impressions or aspirations are already ordered but only mean the possibility of a uniform ordering of our spiritual life in general. Conditional forms are their opposite. For example, the concept of an heir is a conditional form of order, while the concept of a subject of law is a pure form. And it is the pure forms that can be brought into a complete system.

"The conscious use of these organizing principles in dealing with the law elevates jurisprudence to science" ^{[13, p. 6]}.

Stammler did not recognize any other than a historically conditioned, concrete, valid right. Even utopian constructions always have references in the real world. In the material of historically-specific law, we can always distinguish between the general and the special, which are often closely related to each other. The general is precisely the subject and the main task of the philosophy of the law. The special thing that characterizes a specific desire and aspiration always returns back to the idea of the law. In this way, diverse legal material is provided with the possibility of uniform understanding. To achieve this goal, the so-called critical method is necessary. It primarily means critical awareness (literally similar to the popular term reflection in philosophy). Stammler wrote about the method: "We are asking about the concepts and principles that are necessary to have unity and order in all legal issues ever thought of" ^{[13, p. 9; 12]}.

In practice, this method is implemented as follows: when searching for and presenting the necessary conditions for a monotonous definition and direction of thought, everything with only a conditional meaning should be avoided. At the same time, we proceed from the fact of a historically given right but not from certain legal features. The method of philosophical and legal research is used to dissect possible issues of the law in general. As a result, an ordering plan or guidance of our spiritual life is created, thanks to which the representation of the law and, accordingly, individual issues of the law as such acquires an understandable meaning ^{[13, p. 10]}. The name of such a philosophy of law that meets the specified criteria for its task, subject, and methods will be the critical theory of law ^{[13, p. 10]}.

According to Stammler, there is a thought about the law that is the most important and essential. The concept of the law is nothing more than a method of ordering. Such a definition gives the concept of the law unconditional universal validity. But the establishment of the concept of the law does not occur in an a priori way. On the contrary, we assume the generally known possibilities of human life and ask about the remaining or permanent conditions under which these possibilities can be singled out and, in each case, defined uniformly.

The work of the Belgian lawyer, senator, and professor at the New University of Brussels Émile Picard was published in 1908. It was called Pure Law (Le Droit Pur) and published in French in Paris ^[7].

Pure law or encyclopedia of the law—the author of this book wondered. The word "encyclopedia" seemed ambiguous to him. What exactly should the encyclopedia of the law contain? What is its limit? Should it cover all kinds of knowledge about the law? For Picard, an essential criterion for understanding the composition and purpose of the encyclopedia of the law was the example of a lawyer-encyclopedist, for instance, like a philosopher of the 15th century. Pica Della Mirandola, distinguished for possessing a wide variety of knowledge, was said to have possessed all science, even if still very limited. Using this comparison, Picard wondered whether the encyclopedia of the law should be universal, covering, as far as possible, all existing knowledge about the law. What should be the nature of the encyclopedia of the law? Should it cover all abstract and practical concrete concepts?

On the contrary, from another point of view, the encyclopedia of the law can be presented as a science that is content with only superficial knowledge, fully satisfying the requirements of laypeople, which, in turn, would make the texts easy to read, or, as Picard wrote, bordered on complete ignorance. He compared such forms of construction and presentation of the encyclopedia of the law as follows: "It is known that these textbooks of "worldly people" represent for the true science of the law the same as the epidermis for the body, a thin layer barely connected with the basic and profound truths" ^{[7, p. 4]}. In other words, according to Picard, it would be a "vulgar encyclopedia."

According to Picard, pure law, as an adequate name for a general encyclopedia of the law or theory of the law, has the task of ensuring the strength of knowledge about the law, characterized by extreme uncertainty and fragmentation. Pure law is a rational encyclopedia of the law that serves to "distinguish under the intricate multitude and incredible variability of details a "permanent" structure, a skeleton that supports the world of infinitely small and constantly changing legal norms. It seems that, as in mathematics, in jurisprudence, there is a system of concepts and rules that turns out to be constant and unchangeable, despite space and time, a powerful reinforcement that forms, like the wire core of plaster statues, the necessary support and hidden from the visible whole. This is unchangeable in the science of law, opposing its moving part or, rather, strengthening it, the absolute resting under the relative; the circle of truths, beyond which a changeable and versatile life begins; that which remains unchanged in the continuous change of forms; eternal, the same, always relevant; inflexible, eternal, vibrating in ephemeral, the elements that under the kaleidoscopic copying of concrete rights always turn out to be the same; for, no matter how different the parties are, they have similarities confirming their abstract unity and common origin" ^{[7, p. 4]}.

Picard wrote: "The encyclopedia of the law acts as a synthesis of abstract generalizations of this science, such as its leading principles, norms, foundations, simple elements, the alphabet, but with a capital letter; what is valid, what exists, what is real for all places and epochs, cosmopolitan and eternal, essence or, more importantly, quintessence; what makes one see the present transitory in the aspect of the stable; basic types and relationships, ideas, noumenon, towering above the phenomenon, fixed and pure" ^{[7, p. 6]}.

"The encyclopedia, which has grown to such a grandiose size, manifests itself as a harmonious view of the whole science of the law, a view that reveals in it the highest principles, the highest mechanics, general theory, basic truths, archdiocese, basic features, basic ideas, form as a whole... allows us to call it a formal encyclopedia, as opposed to a positive set of rights in a concrete reality, which could be called a real encyclopedia. It discovers and emphasizes the connections through which there are various parts that unite them into an organism, into a body that has its own life... It represents legal science in the majestic guise of a huge whole, a giant cabinet with many compartments in which everything has its place and its hierarchy... It draws... a pantheistic and cosmic plan [of the law]" ^{[7, p. 7]}.

"It is, to put it in a less noble metaphor, a key, a bunch of ideological master keys with which you can get into the inconspicuous chambers of the huge legal Vatican... In a word, the encyclopedia of vertebrae is right! It is formed by the laws of the law!" ^{[7, p. 10]}.

"Thus, understood as a set of abstract constants of law, as its unchangeable part, free from any concrete and changeable elements, I call it pure law! Not only because of the beautiful euphony of the expression but also because of its approximate accuracy because does not the idea of purity and absoluteness arise naturally when it comes to what escapes any unforeseen circumstances and manifests itself in the serene firmness of the unchangeable?" ^{[7, p. 11]}.

German scientist, public lecturer of philosophy and aesthetics in the Kingdom of Bavaria, university librarian, and scientist in Erlangen Gottlieb August Ernst Memel (1761–1840) published an essay in 1815 entitled Pure Doctrine of the State, composed of two parts. The first part of this work is called The Pure Doctrine of Law/Die Reine Rechtslehre.

At the beginning of the book, there is a dedication to the Russian Emperor Alexander I, glorified for the liberation of the European peoples, who gained eternal fame as a "benefactor of peace and a recreator of the legal order in Europe."

According to Memel, the entire well-being of humanity ripens only in the healthy soil of a free and vibrant state corresponding to its purpose. It should be considered erroneous to believe that the state is the result of chance and owes its existence solely to a perceived need for legal protection or security. The human race's purpose is not partially, but entirely, with an endless whole of its tasks, aspirations, desires, and hopes fused with the state.

There are two types of world order: internal and external. The first is created by the moral education of the human race, leading to the unity of a universally valid way of thinking. The second is the state, which is an external condition for the possibility of a reasonable existence and perfect upbringing of a person on Earth. And the most precious and irreplaceable of the benefits for the state is the existence of a constitution. The state corresponds to reason only when it is comprehensively, together with the vitality of its citizens, in a reasonable form directed to the goals of a reasonable existence. Such a reasonable form of the state is the law, and the general science of it is the pure doctrine of law ^{[6, p. 19]}. The science of the organization of the state in the form of the law is most appropriately characterized by the ancient meaning of the word "politics." Accordingly, the science of the state splits into a pure doctrine of law and politics.

Memel noted that what he revised in his book as a pure doctrine of law was previously universally called natural law. In particular, he wrote that the reference to nature in the title of natural law (Naturrecht) led many researchers to misconceptions about the true tasks of science and thereby hindered its real development. And even the most refined and progressive minds, as Memel wrote, did not see in natural law the task of the science of reasonable law, as the true life principle of all law, actually deserving of support, but saw the embodiment of rights that operate outside the state, and tried to justify them not on the basis of the eternal reasonable task of the human race, but on the basis of the natural state, which they, as a concept without any historical and philosophical reality, assumed as necessary in order for a right that does not have a place of residence to provide at least the appearance of a real basis and soil. The fact that there is still an ideal state outside the actual state, a reasonable state, and that a right that has no force in either is absolutely unthinkable. It seems this has remained completely hidden from the defenders of the amazing concept of the law outside the state.

A gap is increasingly being discovered between existing and natural laws. Natural law, despite its numerous revisions, does not have a significant impact on legislation. What can be expected from the law? What is its transformative power if it moves away from reason and creates a separate empire outside human society, where it establishes a spacious throne? Therefore, real legal science will never be able to become such a system of knowledge, even if it is very skillfully woven ^{[6, p. XII]}, to gain spiritual strength through talent, as Thibault wrote, "to reveal the civilistic mind" and even less likely to acquire the meaning of "a kind of pure, legal mathematics" ^{[14, p. 99]}.

Memel also referred to K. Savigny, noting that he rightly saw in such natural law a "completely empty representation" ^{[14, p. 164]} from which real law could not extract any useful vital content.

Therefore, as Memel believed, it is necessary to abandon the name "natural law" and put another one in its place, namely, "pure doctrine of law." The material of such a pure doctrine of law will be the real life of rational beings and their mutual relations— the source from which it should draw should be neither the actual nor the assumed natural state but the entire direct existence of the human race, recognized through reason and history. The relation of statecraft to jurisprudence is the same as the relation of the whole to its parts; statecraft contains the doctrine of the law in itself and makes it necessary.

As Memel believed, if they call the science of a certain reason, a generally valid and generally valid legal order in the state, a pure doctrine of law or jurisprudence, and the science of the actual implementation of the state in the form of law by politics, then state studies break up into the doctrine of law and politics. "Law is the palladium of human freedom and a necessary reasonable condition for the possibility of living as a person among people; the pure science of law, therefore, belongs to the irreplaceable values of humanity" ^{[6, p. 37]}.

All law and the entire civil structure in a state are based essentially on the principles of the pure science of the law, as in all the affairs of the human race, there is no other source of reality than reason.

The pure doctrine of law, like any science, is purely theoretical in nature and, as such, has nothing to do with the definition of reality ^{[6, p. 39]}. Therefore, all valid laws can be considered only as an application of pure law. Hence the conclusion arises that reason postulates to determine all cases that are not defined by any law, according to the principles of pure law in accordance with these relations.

What constitutes a reason for people, in general, is the pure science of law for legal scientists and any copyright holder.

This analysis shows that the idea of the so-called "pure" doctrine of law occupied lawyers and philosophers long before the twentieth century. At the same time, the requirement of it was explained in different ways. In some cases, it was about abstract laws of the law, and in others, about methodological purity.