NORMS FOR DECISION IN THE LIGHT OF THE NORMATIVE DIMENSION OF LAW

Abstract

Abstract. In the article under studies, the norms for decision have been analyzed in the light of the normativedimension of law. The latter may be referred to as an approach to law as a normative system that comprises the normsof positive law, as well as may include the norms of non-positive law, that is the rules and principles developedby R. Dworkin and R. Alexy. The article under discussion contains the answers to the following questions: firstly,how did E. Ehrlich perceive the norms for decision? In which way are they perceived today (F. Müller and others)and in which way (in our opinion) should they be best perceived in the course of law enforcement? Secondly, whatis the essence of the so-called “validity thesis” by Dworkin/Alexy? Thirdly, what is the comprehensive theory ofargumentation? Fourthly, what is the correlation between the norms for decision and the so-called “absolute” or“relative” norms existing in terms of the validity of norm’s consequence?In addition, the article states that E. Ehrlich, as the founder of the concept of norms for decision, regarded themas a universal tool that allows to investigate law in its three broadest aspects: analytical, normative and empirical.However, his understanding of norms for decision is based (according to R. Alexy) on a “purely rule-model legalsystem”, which we consider Ehrlich’s “basic error”. The article under studies shows how to “correct” the above“error” on the basis of R. Alexy’s “rule/principle model”.The article also describes the present-day norm for decision (developed by F. Müller), as well as offers anoriginal approach to understanding norms for decision, relying on the modification of a classical division of normsinto rules and principles. With this purpose, the article initially shows the perception of the above division by R. Dworkin and R. Alexy,relying on the notion of the so-called “validity thesis” – a provision claiming that principles are the commands ofoptimization, whereas rules have the nature of definitive commands.Further on, the article defines the notion of “comprehensive theory (implementation) of norms for decision” as atheoretical issue that allows to comprehend them due to the combination of various norms (basic and auxiliary) andempirical data into appropriate unity.In conclusion, the article analyzes the correlation between norms for decision on the one hand, and rules andprinciples – on the other.