Petrazycki ascribed to legal dogmatics a function and a task. Its function is to contribute to the unification of law while its task is to contribute to the realization of the ideal of the Rechtsstaat. Since these two goals are not always compatible, Fittipaldi focuses on the legality task and shows that Petrażycki devised a legal dogmatics that is purer than that of Hans Kelsen. Fittipaldi also shows that the pureness of Petrazycki’s legal dogmatics would lead, at least in some cases, to its practical impossibility. However, Fittipaldi believes that the proposal of Petrazycki to conceive legal dogmatics as a subjective-relational science, rather than an objective-cognitive one, if consistently developed, may provide a solution to this problem. Legal dogmatics should be completely subjectivized. In this case, the role of dogmata should be played, not by a certain set of normative facts, as both Petrazycki and Jerzy Lande believed, but rather by the axioms that the legal dogmatist chooses for his activity. These axioms may be substantive ones, such as some values of the dogmatist himself, or formal ones, such as certain normative facts or certain axioms concerning the way normative facts should be “produced” or “recognized”. In this regard, Petrazycki’s conception of legal dogmatics requires Kelsen’s concept of Grundnorm understood as choice of certain axioms on the part of the Subject (i.e. the dogmatist). Fittipaldi also notes that Petrażycki’s last writings seem to imply that the statements produced by legal dogmatics, despite their being false, can be evaluated in terms of their correctness or incorrectness (in a purely epistemological sense). Thus, according to Fittipaldi, Petrazycki’s conception should also be completed by the distinction made by Olivecrona between truth and correctness.

Leon Petrazycki's Conception of Legal Dogmatics as Science at the Service of the Principle of Legality (in Russian with English abstract and English original at the end) / E. Fittipaldi. - In: IZVESTIIA VYSSHIKH UCHEBNYKH ZAVEDENII. PRAVOVEDENIE. - ISSN 0131-8039. - 2013:5(2013), pp. 77-96.

Leon Petrazycki's Conception of Legal Dogmatics as Science at the Service of the Principle of Legality (in Russian with English abstract and English original at the end)

E. Fittipaldi
Primo
2013

Abstract

Petrazycki ascribed to legal dogmatics a function and a task. Its function is to contribute to the unification of law while its task is to contribute to the realization of the ideal of the Rechtsstaat. Since these two goals are not always compatible, Fittipaldi focuses on the legality task and shows that Petrażycki devised a legal dogmatics that is purer than that of Hans Kelsen. Fittipaldi also shows that the pureness of Petrazycki’s legal dogmatics would lead, at least in some cases, to its practical impossibility. However, Fittipaldi believes that the proposal of Petrazycki to conceive legal dogmatics as a subjective-relational science, rather than an objective-cognitive one, if consistently developed, may provide a solution to this problem. Legal dogmatics should be completely subjectivized. In this case, the role of dogmata should be played, not by a certain set of normative facts, as both Petrazycki and Jerzy Lande believed, but rather by the axioms that the legal dogmatist chooses for his activity. These axioms may be substantive ones, such as some values of the dogmatist himself, or formal ones, such as certain normative facts or certain axioms concerning the way normative facts should be “produced” or “recognized”. In this regard, Petrazycki’s conception of legal dogmatics requires Kelsen’s concept of Grundnorm understood as choice of certain axioms on the part of the Subject (i.e. the dogmatist). Fittipaldi also notes that Petrażycki’s last writings seem to imply that the statements produced by legal dogmatics, despite their being false, can be evaluated in terms of their correctness or incorrectness (in a purely epistemological sense). Thus, according to Fittipaldi, Petrazycki’s conception should also be completed by the distinction made by Olivecrona between truth and correctness.
Rechtsstaat ; legal dogmatics ; Leon Petrazycki ; Hans Kelsen ; Karl Olivecrona
Settore IUS/20 - Filosofia del Diritto
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Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/2434/258285
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