LEGITIMACY OF LAW: DESCRIPTIVE AND PRESCRIPTIVE APPROACHES

Abstract

The article examines descriptive and prescriptive approaches to the category of legitimacy of law. Itis noted that in relation to the legitimacy of law, the problem of central theoretical and practical significance is todistinguish between descriptive and prescriptive judgments. It is noted that the use of the concept of “legitimacy”for the discourse on the duty of subordination of public power to the right created by it brings to the discussion animaginary positivity in the form of reliance of normative judgments on social facts, namely on the fact of (non-)recognition, although in fact the ideal and actual measurement of legitimacy do not depend on each other. It isproved that recognition can be considered as a social fact that determines the socio-mental mechanism of legalinfluence on people's behavior, but it is not a normative condition for the operation of law. It is noted that thepoints of view of different approaches to the right of acceptance (recognition) can act either as part of the conceptof “binding force of law”, or as an actual condition for such force and can mean completely different things – fromthe sociological fact of recognition (public confidence in the law, agreement with legal regulation, willingnessand desire to use official law to resolve problems and disputes, etc.) to the ideal model of the duty of reasonablepersons to accept reasonable law or the normative model of giving law binding force through its general use by thepopulation and power institutions as a standard of conduct. It is determined that the perspectives of the problemof law acceptance are often left out when law and its binding force are uncritically derived from the concept of “recognition”, in which the authors of the relevant discourses lay different and often mutually exclusive meanings. Itis proved that considering recognition as a sufficient feature of a rule of law will mean a return either to an emotivistunderstanding of the binding power of law (if recognition is considered as a socio-psychological fact), or to anothernatural-legal aspect of “right law” (if recognition is understood as a rational discourse that is mentally constructed).It is noted that a third situation is also possible, in which recognition is considered only as an optional conditionfor the operation of a right (or, accordingly, an optional feature of the concept of law) – a right has legal force uponits proper establishment and subject to the correctness (fairness) of its content, but recognition of a right improvesits quality and increases its effectiveness in society, in this case recognition will be neither a normative conditionfor the operation of the right, nor a conceptual condition for determining the right. It is determined that from thisperspective, the legitimacy of law will be only one of the many points in the discussion of legal policy.