НАУКОВА СПАДЩИНА ГАНСА КЕЛЬЗЕНА В КОНТЕКСТІ РЕФОРМУВАННЯ ПОЛІТИКО-ПРАВОВОЇ СИСТЕМИ УКРАЇНИ

Abstract

The article attempts a comprehensive analysis of the theoretical and legal study of Hans Kelzen, known as the "pure theory of law", which took place in the background and combined with a fundamental study of the theory of democracy and parliamentarism.

The essence of Kelzen's scientific doctrine was a purely instrumental understanding of law, the creation of a separate field of knowledge that would deal with a consistent description of law "as it is" in terms of specific methodology of jurisprudence.

The achievements of pure jurisprudence include an in-depth study of the rule of law, the project of the structure of the legal system, according to which in national legal systems legal norms are consistent with each other and hierarchically arranged in the form of a pyramid. At the top of this pyramid are the rules of the constitution. Somewhat lower are the "general norms" that are established by law or custom. The last in this hierarchy are individual norms, which are established by judicial or administrative bodies in resolving specific cases.

The source of the unity of the legal system G. Kelzen considered the basic norm (die Grundnorm), which has no normative content but at the same time serves to justify the whole legal order as a whole.

The experience of the totalitarian regimes of the twentieth century, when the cruelest, most inhumane "legal systems" proclaimed themselves "the most humane and just" testifies to the relevance of Kelzen's teachings in the context of the interconnectedness of state and law. Detached from the democratic state-legal basis, any best theory, including pure theory of law, becomes defenseless against totalitarian, authoritarian and oligarchic threats.

There is an organic connection between Kelzen's pure doctrine and other approaches to law. It will be possible to identify it by clearly identifying these approaches with the corresponding areas of legal reality.

Hans Kelzen’s scientific legacy provides an opportunity to apply the tools of positive law to reform Ukraine’s legal system, linking democracy to the exercise of state power in a state governed by the rule of law.