State and law, jurisprudence and procedural law
Methodology of legal science. The peculiarities of the science of the theory of state and law are expressed not only in its subject but also in its method. The method of science is understood as a set of techniques, principles and rules with the help of which the student comprehends the subject and acquires new knowledge. A method is an approach to the phenomena and processes under study; a systematic path of scientific knowledge and establishment of truth.
3. Methodology of legal science.
The peculiarities of the science of the theory of state and law are expressed not only in its subject, but also in its method. Therefore, after clarifying what is the subject of study, it is necessary to consider how g O state and law.
The method of science is understood as a set of techniques, means, principles and rules with the help of which a student comprehends a subject and gains new knowledge. Method is an approach to the phenomena, objects and processes being studied, a systematic path of scientific knowledge and establishment of truth. As the English historian and sociologist G. Buckle noted, “in all higher branches of knowledge, the greatest difficulty is not the discovery of facts, but the discovery of the correct method according to which laws and facts can be established.” to the Lena."
The doctrine of the methods themselves, their classification and effective application, the theoretical justification of the methods used in science to understand the surrounding reality is usually called methodology. The term “methodology” is made up of two Greek words: “method” (the path to something) and “logos” (science, teaching). Thus, literally “methodology” is the study of methods of cognition. The term “methodology” refers to the system of all those methods that are used by this science.
The whole variety of methods of the theory of state and law, depending on the degree of their prevalence, can be arranged in the following si with the topic.
1) Universal methods these are philosophical, worldview approaches that express the most universal principles of thinking. Among the universal ones, metaphysics is distinguished (considering the state and law as eternal and unchanging institutions, deeply unrelated to each other and to other social phenomena) and dialectics (materialistic and idealistic; the latter, in turn, can act as objective or subjective idealism). Thus, objective idealism associates the reasons for the emergence and the very fact of the existence of state and law with divine power or objective reason; subjective idealism with human consciousness, with the coordination of the will of people (agreement); materialist dialectics with socio-economic changes in society (the emergence of private property and the division of society into antagonistic classes). From the standpoint of materialist dialectics, every phenomenon (including state and law) is considered in development, in a specific historical situation and in relationship with other entities. in laziness.
2) General scientific methods are techniques that do not cover all scientific knowledge, but are used only at its individual stages, in contrast to general methods. General scientific methods include: analysis, synthesis, systemic and functional approaches, social expert method and a cop.
Analysis means the conditional division of a complex state-legal phenomenon into separate parts. Thus, many categories of the theory of state and law are formed by revealing their essential features, properties, and qualities.
Synthesis, on the contrary, involves the study of a phenomenon by conditionally combining its component parts. Analysis and synthesis are usually used I am in unity.
The systematic approach focuses on revealing the integrity of an object and identifying the diverse types of connections in it. This method makes it possible to consider the state apparatus, political and legal system, rules of law, legal relations, offenses, etc. as systemic entities. and in order, etc.
The functional approach focuses on clarifying the forms of influence of some social phenomena on others. This method makes it possible to understand the functions of the state and its individual bodies, the functions of law and its specific norms, the functions of legal consciousness, legal responsibility, legal benefits and incentives, legal privileges and immunities, legal incentives and g restrictions, etc.
The method of social experiment is associated with testing a particular draft decision in order to prevent damage from erroneous options for legal regulation. Examples include experiments on the introduction of jury trials in nine regions of the Russian Federation, the organization of public order protection by local governments in a number of municipalities, etc.
3) Private scientific methods are techniques that are a consequence of the assimilation by the theory of state and law of scientific achievements of specific (private) technical, natural and human sciences. These include concrete sociological, statistical, cybernetic, m A thematic, etc.
The sociological method allows, through questioning, interviewing, observation and other techniques, to obtain data on the actual behavior of subjects in the state and legal sphere. It is used to determine the effectiveness of the impact of state legal structures on social relations, identifying contradictions between legislation and the needs of social development. By, for example, conducting sociological research, appropriate conclusions are drawn about the nature and effectiveness of the legal framework carried out by the government authorities of the state. and tics.
The statistical method allows us to obtain quantitative indicators of certain mass recurring state legal phenomena, such as offenses, legal practice, the activities of government bodies, etc. Statistical research consists of three stages: collecting statistical material, reducing it to a single criterion and processing. The first stage of the study is reduced to the registration of individual phenomena that have state and legal significance. At the second stage, these phenomena are classified according to certain criteria, and finally, evaluative conclusions are drawn about T regarding classified phenomena.
For example, a quantitative accounting of offenses committed over a certain period of time is carried out. They are then classified according to their content. And finally, a conclusion is made about which of them tend to increase and which tend to decrease. Based on the obtained statistical information, a scientific search for the reasons giving rise to these trends is carried out.
The cybernetic method is a technique that allows one to understand state and legal phenomena using the system of concepts, laws and technical means of cybernetics. The capabilities of cybernetics are not limited to the capabilities of its technical means (computers, etc.). It is possible to gain a deeper understanding of state legal patterns with the assistance of the system of its concepts (management, information, binary information, direct and feedback, optimality, etc.) and theoretical ideas (the law of necessary diversity, etc.).
A mathematical method is a set of techniques for operating with quantitative characteristics. Even I. Kant noted that “every knowledge contains as much truth as mathematics.” Currently, mathematical methods are used not only in criminology or forensic examination, but also in the qualification of crimes, and in lawmaking, and in other areas of legal reality, etc.
4) We can distinguish two methods that relate to private law, which are purely legal: formal legal and comparative And technical-legal.
The formal legal method makes it possible to define legal concepts (for example, such special legal terms as significant harm, legal entity, serious bodily injury, mitigating circumstances, etc.), identify their characteristics, carry out classification, interpret the content of legal regulations, etc. .P. Its specific feature is its abstraction from the essential aspects of law. The task that is posed in this case is to understand and explain the current legislation, in its systematic presentation and interpretation for the purposes of lawmaking and law enforcement. And body practice.
Therefore, the content of the formal legal method includes legislative techniques and techniques for interpreting legal norms, as well as the study of those factors and conditions in which these norms operate and which influence their nature.
The method under consideration consists of studying the categories, definitions, and constructions used in law using special legal techniques. It makes it possible to study in detail the technical, legal and regulatory aspects of law and, on this basis, to professionally engage in legal activities.
The comparative legal method allows you to compare different legal systems or their individual elements - laws, legal practice, etc. in order to identify their general and special properties. Comparing, for example, the legal systems of Germany and Russia, we learn that there are many similarities between them, but there are also certain differences inherent in their historical e ski.
This method is used in the study of various legal systems (macro comparison) or individual elements of legal systems (micro comparison). Empirical comparison mainly includes micro-comparison - comparison and analysis of legal acts along the lines of their similarities and differences, as well as the practice of their application. In legal science, the comparative legal method is used primarily in the study of the legislation of two or more states.
Methods are especially important for the theory of state and law, because this science is methodological in relation to other legal sciences that use it in their evolution.
The methodology of legal research, tested in political and legal practice, has rich content and consists of at least several branches. Therefore, the exaggeration of any one of them is fraught with the danger of reducing the cognitive potential of scientific knowledge and threatens to result in a crisis situation in science.
In other words, when studying state and legal phenomena, it is necessary to proceed from the multidimensionality of existence, consistently applying such a principle of scientific knowledge as pluralism. Thanks to a pluralistic approach to the study of the most general patterns of the emergence, development and functioning of the state and law, the theory creates a system of knowledge that reflects objective data about real political and legal life.
As well as other works that may interest you |
|||
| 5423. | Gromadian War in Ukraine | 202.5 KB | |
| Gromadyanskaya war in Ukraine Merits and Prorakhunka of the Central For the Sake of Merit. Central Rada, the Ukrainian parliament. Vaughn renewed the sovereign certificate in Ukraine... | |||
| 5424. | Study of pulse dispersion distortions in optical fiber | 1.21 MB | |
| The purpose of the work is to conduct a computer experiment to study the influence of dispersion components on the time parameters of transmitted optical pulses: - mode dispersion of stepped optical fibers - mode dispersion... | |||
| 5425. | Development of a single technological process for machining the BUSHING part | 899.5 KB | |
| Develop and design a single technological process for machining the BUSHING part (drawing No. 9) using a turret lathe model 1E340P. The annual production program is 1200 pieces. Sequence of work: ... | |||
| 5426. | Gearbox design | 77 KB | |
| Introduction A car is the most common mechanical vehicle in the modern world. A gearbox is a mechanism that converts the torque transmitted from the engine through the clutch in magnitude and direction. Gives you the opportunity... | |||
| 5427. | Studying methods for controlling the linear dimensions of parts using caliper tools | 2.34 MB | |
| Purpose of the work: to study the method of measuring the dimensions of parts using a caliper and to master the technique of presenting measurement results. General information. Vernier tools designed for measuring the linear dimensions of parts are... | |||
| 5428. | Conveyor belt drive design | 1.35 MB | |
| Drive circuit analysis. The drive consists of an asynchronous motor, a cylindrical coaxial double-flow gearbox and a drive shaft with a drum and coupling. During the design of the conveyor, the following design decisions were made: to level... | |||
| 5429. | Conceptual framework for reforming accounting and reporting in the Russian Federation | 192.5 KB | |
| Introduction The transition of the Russian economy to market relations has set completely new goals for accounting. The accounting system that previously existed in the planned command economy was determined by the social nature... | |||
| 5430. | Time of Troubles | 43.82 KB | |
| Time of Troubles At the turn of the 16th and 17th centuries. The Moscow state was experiencing a difficult and complex moral, political and socio-economic crisis, which was especially evident in the situation in the central regions of the state. With the opening for the Russian colony... | |||
| 5431. | Learning PCM Codecs | 203.5 KB | |
| Study of PCM codecs Purpose of the work To study the processes of quantization and coding of speech signals in digital transmission systems. Laboratory assignment Assignment on the theoretical part Study the procedures of linear and nonlinear... | |||
The emergence of the methodology of legal science and the stages of its development
3. Stages of development of the methodology of legal science. Methods of scientific knowledge
The formation of the methodology of legal science is historically determined by the development of the practical activities of society, its accumulation of experience of legal life in various spheres of life and, as a result, by the development of public consciousness, its legal way of thinking. The history of ideas about law, its comprehension, interpretation and knowledge has followed approximately the same path as the history of science as a system of knowledge as a whole. As a rule, the following stages are distinguished in it: philosophical-practical, theoretical-empirical and reflexive-practical. The first period covers the legal thought of antiquity, the Middle Ages and a significant part of the modern era, while the second and third periods mainly occur at the end of the 18th and 20th centuries.
In general, the evolutionary (gradual) development of law, the improvement of legal activity, lawmaking and legal technology, and at the same time the critical understanding of the created and functioning law was marked by the emergence of a special type of social activity - scientific and doctrinal, aimed at understanding the general laws of legal life and evolution rights. This circumstance, in turn, gave a direct impetus to the emergence of the foundations of the methodology of legal science as a section of legal knowledge engaged in the development and application of certain methods of studying law and legal reality.
Method is traditionally understood as the path to the goal, the road to knowledge. In relation to knowledge, it is used in the sense of “path to knowledge”, “path to truth”. The concept of “method” is defined as a method of action, a type of techniques and operations that guide cognition. This method always reflects the properties of the object and the subjective capabilities of the researcher.
To solve scientific problems, many methods are used, which can be classified in different ways. The most common basis of classification is degree of generality. In legal science, it is also customary to divide methods into four levels: philosophical (worldview), general scientific (for all sciences), special scientific (for some sciences) and special (for individual sciences).
Formal-logical and general scientific methods of scientific knowledge are of particular importance for legal science.
Among the general logical methods of cognition, the methods of formal logic are distinguished:
· analysis is a method of mentally dividing the object under study into certain elements with the aim of in-depth and consistent knowledge of them and the connections between them;
· synthesis is a method of mental reconstruction of the whole on the basis of known parts and their relationships;
· abstraction is the mental separation of individual elements, properties, relationships of an object and consideration of them in isolation both from the object as a whole and from its other parts;
· concretization - correlation of abstract ideas and concepts with reality;
· deduction is a reliable conclusion from knowledge of a greater degree of generality to knowledge of a lesser degree of generality;
· induction is a probabilistic conclusion from knowledge of a lesser degree of generality to new knowledge of a greater degree of generality;
· analogy - a conclusion about the belonging of a certain feature to the subject being studied on the basis of similarity in essential features with another subject;
· modeling is a method of indirect cognition of an object using its model.
General scientific methods are those techniques and operations that have been developed through the efforts of all or large groups of sciences and that are used to solve general cognitive problems. These methods are divided into methods-approaches and methods-techniques. The first group includes substrate (content), structural, functional and systemic approaches. These approaches orient the researcher to the appropriate aspect of considering the object being studied.
It is with the help of this group of methods that the main process of scientific cognitive activity is carried out - this is the study of the properties and qualities of the studied object of knowledge.
At the level of general scientific knowledge, traditional methods of cognition of reality are also used: the system method, analysis and synthesis, induction and deduction, the method of historicism, functional, hermeneutic, synergetic, etc. They do not cover all scientific knowledge, like philosophical methods, but are applied only to certain areas of it. stages.
In this group, methods are divided into empirical and theoretical. The universal empirical method is observation, which means targeted sensory perception of the facts of reality. This method is characterized by relative limitations and passivity. These shortcomings are overcome by applying another empirical method. An experiment is a method in which, at the will of the researcher, both the object of knowledge and the conditions for its functioning are formed. This method allows you to reproduce processes the required number of times.
According to the historical method of cognition, the state and law must be approached as social reality changing in time and space. If, for example, in Marxism, when explaining the reasons for the development of society, the state, and law, priority is given to the economy (basis), then in idealism - to ideas, consciousness and worldview.
The systemic method is the study of state and law, as well as individual state-legal phenomena from the position of their existence as integral systems consisting of interacting elements. Most often, the state is considered as a set of components such as people, power and territory, and law is considered as a system of law, consisting of spheres, branches, institutions and norms of law.
Closely related to the system method is the structural-functional method, which consists in knowing the functions of the state and law, their constituent elements (functions of the state, functions of law, functions of legal responsibility, etc.).
In legal science there are a number of provisions, categories, structures and directions (scientific schools), which are dogma, i.e. generally accepted and recognized by all lawyers and jurists. For example, such concepts and legal structures as a system of law, a rule of law, a system of legislation, a form of law, a source of law, the effect of law, a form of implementation of law, a mechanism of legal regulation, law in an objective sense, law in a subjective sense, legal relationship, subjective legal rights and responsibilities, etc., are generally accepted and interpreted essentially the same way for everyone.
The legal-dogmatic (formal-dogmatic) approach allows us to consider law as a sociocultural phenomenon and understand it as a system of fundamental legal provisions, rules and structures, means and methods of legal regulation, forms and concepts of legal activity, etc., formed in the process of historical development of law and embodied in specific legal systems that are established by the state.
The hermeneutic method used in legal sciences proceeds from the fact that law, legal acts, and the rule of law are phenomena of a special worldview. Therefore, they need to interpret their “life integrity” on the basis of a person’s “inner experience”, his direct perception and intuition. Any era can be understood only from the point of view of its own logic. For a lawyer to understand the meaning of a law that was in force in the distant past, it is not enough to know its text. He must understand what content was put into the corresponding concepts in that era.
The synergetic method is a view of phenomena as self-organizing systems. From the creative potential of chaos, a new reality, a new order, emerges. In legal science, synergetics considers the state and law as random and nonlinear, that is, specific historical and variable social phenomena. The state and law are constantly changing, as they are determined by many different reasons, factors and options for possible events.
General scientific methods determine only general approaches to solving problems of legal science. Therefore, along with them, private scientific methods are used, which allow one to obtain knowledge on issues of state and law. These are methods of concrete sociological research, mathematical, cybernetic, comparative legal, etc.
The method of concrete sociological research involves the collection, analysis and processing of legal information (official documents, materials from the practice of law enforcement agencies, materials from questionnaires, surveys and interviews). It is aimed at establishing the social conditionality of law and legal norms, identifying the need for law in society and the effectiveness of legal regulation.
The mathematical method is based on the analysis of quantitative indicators that reflect the state and dynamics of change of a particular socio-legal phenomenon (for example, the crime rate, public awareness of basic regulatory legal acts, etc.). It includes observation of socio-legal phenomena, quantitative data processing, their analysis and is used in the process of studying phenomena characterized by mass, repeatability and scale.
The modeling method is the mental creation of models of state-legal phenomena and manipulation of them in the expected conditions. This method is aimed at finding optimal solutions to specific problems.
The method of socio-legal experiment is to create an experiment using legal and government phenomena. For example, the introduction of the institution of jury trials, legal acts or individual legal norms and testing their effects in specific, real social conditions.
The cybernetic method is a method associated with the use of concepts (“input-output”, “information”, “control”, “feedback”) and technical means of electronics and computer technology. This method is used for automated processing, storage, retrieval and transmission of legal information.
Special methods make it possible to detail knowledge about legal and government phenomena. Special scientific methods should also include methods that allow one to develop new knowledge about law and the state (for example, interpretation of legal texts and norms). The methodology of interpretation is a separate direction of legal knowledge and is understood as the doctrine of interpretation or, as they sometimes say, hermeneutics.
Hermeneutics (from the Greek hermeneutikos - explaining, interpreting) - the art of interpreting texts (classical antiquity, religious monuments, etc.), the doctrine of the principles of their interpretation.
Legal science in its continuous development is in constant interaction with various branches of humanities. Modern legal hermeneutics, as a direction of modern jurisprudence, actively develops issues of interpretation, problems of the theory of the language of law, including in connection with the fundamental problems of understanding the meaning of legal texts. She explores the practice of interpreting various legal meanings contained in official written documents and oral speech, in signs and symbols, in the judgments of lawyers regarding legal situations. It should be noted that the hermeneutic approach to the study and interpretation of legally significant texts represents a legal direction in the field of humanitarian knowledge.
Until recently, legal research, as a rule, was limited to formal logical operations designed to produce the most in-depth analysis of legal material for its practical use in the process of implementing a particular law.
Over the course of many centuries, numerous attempts have been made to interpret legal texts of a sign-symbolic nature. The need to interpret these texts is due to the following reasons:
· the ambiguity of legal monuments and texts, depending on the obsolete words contained in the law and archaic text, or on the fact that the expression used by the law is grammatically equally susceptible to two different interpretations;
· specificity in the presentation of legal texts (doubts in the understanding of the law sometimes arise from the fact that when presenting the law, instead of the general principle, the legislator presents individual, specific objects of the law);
· uncertainty of the law (sometimes doubts arise due to the use by the legislator of general, insufficiently defined expressions); uncertainty of quantitative relations in the law;
· contradictions between different texts of the law;
· interpretive fences around the law;
· changes in living conditions (the main motive that prompted teachers of the law to interpret the text, and quite often in contradiction with its direct, literal meaning, were changes in the cultural structure of people's life, etc.).
The purpose of modern legal hermeneutics is, after all, to search and realize the meaning of a legal text, to study the problems of multiple meanings and interpretation. In modern conditions, the form of law cannot act other than a sign form, the source and embodiment of which is language. Legal regulation and its elements act as ideal objects, an external form of expression of social consciousness, which is subject to understanding and application.
The indicated methods, as a rule, are not used separately, but in certain combinations. The choice of research methods is associated with various reasons. First of all, it is determined by the nature of the problem being studied, the object of research. For example, when studying the characteristics of a particular state that organizes social life in a given society, you can use a systemic or structural-functional method. This will allow the researcher to understand what underlies the life activity of a given society, which bodies manage it, in what areas, who carries it out, etc.
The choice of methods is directly dependent on the ideological and theoretical position of the researcher. Thus, a legal ideologist, when studying the essence of the state and society, their development, will most likely focus on the driving factors of their evolution, positive ideas of the creative activity of society, and a legal sociologist will analyze the effectiveness of the influence of certain ideas, norms and legal acts on the development of the state and public consciousness.
Information is an object of civil law
information law intellectual property The concept of “information” has found itself at the center of both scientific and socio-political discussions mainly due to the technological surge...
Historical method of studying state and law
Place and functions of the theory of state and law
The theory of state and law develops its own methods for studying state and legal phenomena and at the same time actively uses general methods developed by the social and natural sciences...
Methodology of the theory of state and law
The famous German philosopher Georg Wilhelm Friedrich Hegel said that the method is a tool that stands on the side of the subject, it is a means through which the subject relates to the object V.N. Protasov. Theory of law and state 2nd edition. M, 2001...
Science of constitutional law
Based on its subject, the science of constitutional law performs a number of functions. These include a predictive function aimed at carrying out a qualified analysis of state and legal trends...
The methodology of the theory of state and law is a set of special techniques, methods, and means of scientific knowledge of reality. If the subject of science shows what science studies, then the method shows how, in what way it does it...
The main stages in the development of the science of theory of state and law
Political science as a science
Method is a way of studying phenomena, as well as testing and evaluating theories. Methodology is a specific vision of phenomena; it presupposes specific positions and angles of view of the researcher. Methods used by political science...
Provisions of the Constitution of the Republic of Kazakhstan
The centuries-old history of human development and its modern experience indicate that under any government system there was, is and will be a need to carry out intelligence work. In ancient times, intelligence...
Concept and signs of law
Ideas about law as a whole are of a general scientific nature. In principle, they are, to one degree or another, covered by the content of all the humanities (and, perhaps, not only the humanities) sciences - such as history, sociology, pedagogy, etc...
Subject, method and functions of TPG
Subject, method and functions of TPG
In conclusion, the main results of the course work are summed up. This structure of the course work most fully reflects its organizational concept and the logic of the material presented. 1. SUBJECT OF THE THEORY OF LAW AND STATE 1.1...
Techniques and methods of cognition used in the theory of state and law
The importance of methodology in the knowledge of law and state cannot be overestimated. Truly, the condition without which it is impossible to understand the complex and contradictory essence of state-legal processes and phenomena is methodology...
Theory of state and law in the system of legal knowledge
The subject of legal science includes social relations regulated by law, norms and institutions, sources of legal norms, legal technology, experience in the application of legal norms, legal relations and legal facts. Famous legal scholar S.S...
Legal science and legal research
In modern legal literature, the most common approaches to understanding the method of cognition of legal phenomena can be presented in the following provisions. There is a method: - a specific theoretical or practical technique, operation...
- 1) Universal methods are philosophical, worldview approaches that express the most universal principles of thinking. Among the universal ones, metaphysics is distinguished (considering the state and law as eternal and unchanging institutions, deeply unrelated to each other and to other social phenomena) and dialectics (materialistic and idealistic; the latter, in turn, can act as objective or subjective idealism). Thus, objective idealism associates the reasons for the emergence and the very fact of the existence of state and law with divine power or objective reason; subjective idealism - with human consciousness, with the coordination of the will of people (agreement); materialist dialectics - with socio-economic changes in society (the emergence of private property and the division of society into antagonistic classes). From the standpoint of materialist dialectics, every phenomenon (including the state and law) is considered in development, in a specific historical situation and in connection with other phenomena.
- 2) General scientific methods are techniques that do not cover all scientific knowledge, but are used only at its individual stages, in contrast to general methods. General scientific methods include: analysis, synthesis, systemic and functional approaches, and the method of social experiment.
Analysis means the conditional division of a complex state-legal phenomenon into separate parts. Thus, many categories of the theory of state and law are formed by revealing their essential features, properties, and qualities.
Synthesis, on the contrary, involves the study of a phenomenon by conditionally combining its component parts. Analysis and synthesis are usually used in unity.
The systematic approach focuses on revealing the integrity of an object and identifying the diverse types of connections in it. This method makes it possible to consider the state apparatus, political and legal system, rules of law, legal relations, offenses, law and order, etc. as systemic entities.
The functional approach focuses on clarifying the forms of influence of some social phenomena on others. This method makes it possible to understand the functions of the state and its individual bodies, the functions of law and its specific norms, the functions of legal consciousness, legal responsibility, legal benefits and incentives, legal privileges and immunities, legal incentives and restrictions, etc.
The method of social experiment is associated with testing a particular draft decision in order to prevent damage from erroneous options for legal regulation. Examples include experiments on the introduction of jury trials in nine regions of the Russian Federation, the organization of public order protection by local governments in a number of municipalities, etc.
3. Private scientific methods are techniques that are a consequence of the assimilation by the theory of state and law of scientific achievements of specific (private) technical, natural and human sciences. These include concrete sociological, statistical, cybernetic, mathematical, etc.
The sociological method allows, through questioning, interviewing, observation and other techniques, to obtain data on the actual behavior of subjects in the state and legal sphere. It is used to determine the effectiveness of the impact of state legal structures on social relations, identifying contradictions between legislation and the needs of social development. By, for example, conducting sociological research, appropriate conclusions are drawn about the nature and effectiveness of the legal policy pursued by the government authorities of the state.
The statistical method allows us to obtain quantitative indicators of certain mass recurring state legal phenomena, such as offenses, legal practice, the activities of government bodies, etc. Statistical research consists of three stages: collecting statistical material, reducing it to a single criterion and processing. The first stage of the study is reduced to the registration of individual phenomena that have state and legal significance. At the second stage, these phenomena are classified according to certain criteria, and in conclusion, evaluative conclusions are drawn regarding the classified phenomena.
For example, a quantitative accounting of offenses committed over a certain period of time is carried out. They are then classified according to their content. And finally, a conclusion is made about which of them tend to increase and which tend to decrease. Based on the obtained statistical information, a scientific search for the reasons giving rise to these trends is carried out.
The cybernetic method is a technique that allows one to understand state and legal phenomena using the system of concepts, laws and technical means of cybernetics. The capabilities of cybernetics are not limited to the capabilities of its technical means (computers, etc.). It is possible to gain a deeper understanding of state legal patterns with the assistance of the system of its concepts (control, information, binary information, direct and feedback, optimality, etc.) and theoretical ideas (the law of necessary diversity, etc.).
A mathematical method is a set of techniques for operating with quantitative characteristics. Even I. Kant noted that “in every knowledge there is as much truth as there is mathematics.” Currently, mathematical methods are used not only in criminology or forensic examination, but also in the qualification of crimes, and in lawmaking, and in other areas of legal reality, etc.
4. We can distinguish two methods that relate to private law, which are purely legal: formal legal and comparative legal.
The formal legal method makes it possible to define legal concepts (for example, such special legal terms as significant harm, legal entity, serious bodily injury, mitigating circumstances, etc.), identify their characteristics, carry out classification, interpret the content of legal regulations, etc. .P. Its specific feature is its abstraction from the essential aspects of law. The task that is posed in this case is to understand and explain the current legislation, in its systematic presentation and interpretation for the purposes of lawmaking and law enforcement practice.
The method under consideration consists of studying the categories, definitions, and constructions used in law using special legal techniques. It makes it possible to study in detail the technical, legal and regulatory aspects of law and, on this basis, to professionally engage in legal activities.
The comparative legal method allows you to compare different legal systems or their individual elements - laws, legal practice, etc. - in order to identify their general and special properties. Comparing, for example, the legal systems of Germany and Russia, we learn that there are many similarities between them, but there are also certain differences inherent in them historically.
This method is used in the study of various legal systems (macro comparison) or individual elements of legal systems (micro comparison). Empirical comparison mainly includes micro-comparison - comparison and analysis of legal acts along the lines of their similarities and differences, as well as the practice of their application. In legal science, the comparative legal method is used primarily in the study of the legislation of two or more states.
Methods are especially important for the theory of state and law, because this science is methodological in relation to other legal sciences that use it in their evolution.
The methodology of legal research, tested in political and legal practice, has rich content and consists of at least several branches. Therefore, the exaggeration of any one of them is fraught with the danger of reducing the cognitive potential of scientific knowledge and threatens to result in a crisis situation in science.
In other words, when studying state and legal phenomena, it is necessary to proceed from the multidimensionality of existence, consistently applying such a principle of scientific knowledge as pluralism. Thanks to a pluralistic approach to the study of the most general patterns of the emergence, development and functioning of the state and law, the theory creates a system of knowledge that reflects objective data about real political and legal life.
The methodological basis of the theory of state and law is made up of general scientific principles:
- 1. Historicism. The historical approach requires consideration of state and legal phenomena in development and their historical relationship. When studying the state and law, the theory must establish the reasons for their origin and trace the main stages of development. Then, taking this point of view into account, give a scientific assessment of the modern state and law.
- 2. Objectivity. The principle of objectivity means a true reflection of state-legal reality in scientific knowledge, its reproduction as it really exists. The theory defines general concepts about state and law and reveals their essence. It formulates the general patterns of their functioning, which reflect objective reality, real phenomena of social life.
- 3. Specificity. This principle requires the theory of state and law to accurately take into account all the conditions in which the object of knowledge is located. It involves identifying the main, essential properties, connections and trends of its development. It is practice that ultimately confirms the truth or falsity of scientific knowledge. The truth of the knowledge put forward by science is fully proven only when it manages to find, reproduce (model) and create a phenomenon corresponding to this knowledge.
- 4. Pluralism. We are talking about multidimensionality in any research, including in the theory of state and law. If science concentrates its attention only on some aspects or properties of a phenomenon and, for certain reasons, neglects others as unimportant, incidental, then it inevitably takes a dead end path in its further development. Pluralism of scientific knowledge simultaneously means its universality, because this takes into account not only contradictory views on the same state or legal phenomenon, but also divergent ideas about their origin, essence, social orientation, structure, and development prospects. Thanks to a pluralistic approach to understanding the general laws of state and law, the theory creates the most optimal system of knowledge.
Such science is also the initial, fundamental one for branch sciences, since the general state of legal science as a whole and its effectiveness largely depend on the level and depth of its development, the relevance of the problems being studied, their connection with the urgent needs of the development of society and the state, their correct and deep solution impact on public life.
The connection between the theory of state and law and branch sciences is mutual, two-way and creative. The conclusions of industry scientists and their teams enrich the theory of law, aim at resolving the most pressing problems, allow us to use specific examples and more deeply reveal the key concepts of jurisprudence, and feed the general theory with factual material. Thus, developments in the science of criminal and administrative law of problems of crimes and administrative offenses, issues of guilt, delinquency, and sectoral liability have made it possible to outline in basic terms a general theory of offenses, legal liability, causes of offenses and ways to overcome them. Research by constitutional law specialists in the field of the legislative process served as the initial basis for the development of general problems of lawmaking and legislative technology.
The theory of state and law is closely connected and also interacts with technical and applied sciences, which are at the interface between jurisprudence and other branches of knowledge and help legal practice to correctly, legally and reasonably resolve specific legal cases (forensic science, forensic medicine, forensic psychiatry, legal informatics , judicial statistics, etc.). And in relation to these sciences, the theory of state and law is fundamental, methodological, supplying these sciences with basic concepts and concepts. It helps to correctly legally evaluate the conclusions of such sciences, to connect them with the needs of strengthening the rule of law and raising the level of legal culture of society, with the general trends in the development of the entire state-legal superstructure as a whole.
§ 4. Methodology of legal science
Along with the subject, each science also has its own independent method. If the subject answers the question of what the corresponding science studies, then its method is a set of techniques, methods by which this subject is studied. Methodology of legal science
This is the doctrine of how, in what ways and means, with the help of what philosophical principles it is necessary to study state and legal phenomena. Thus, the methodology of legal science is a system of theoretical principles, logical techniques and special research methods, conditioned by a philosophical worldview, that are used to obtain new knowledge that objectively reflects state legal reality.
The words of the English philosopher F. Bacon are known that the method of science is like a lantern that illuminates the path to science. Only a properly developed research methodology can lead to positive results of scientific research.
Centuries-old scientific research into the formation and development of state and law around the world has given rise to numerous, sometimes directly opposing political and legal doctrines and theories, and they were usually based on divergent methods and techniques of study, and this was one of the reasons for their differences in content. The state and law were studied from divergent and often directly opposite philosophical and methodological positions - materialism and idealism, metaphysics and dialectics.
A number of theorists connected state-legal phenomena with the will of God or the so-called objective mind, others - with the psyche of people, their emotional experiences, and still others - with the spirit of the people, their customs, and mentality. Theories about the state and law as the agreed will of the people, as an agreement between people, about the existence of natural, inalienable individual rights were fashionable and continue to exist. Ideas about the geographical, natural factor as the basis for the creation of the state and law, about the primacy of national, ethnic, and religious characteristics of these social phenomena were also proclaimed and substantiated. Finally, the existence of the state-legal superstructure and the patterns of its development are explained
economic factors, forms of ownership, the level of development of the production of material goods, the division of society into antagonistic masses.
Scientists also answer questions about the knowability of all social, including political and legal phenomena. If some are confident that such phenomena, being created by human will and reason, are completely knowable, their essence and purpose can be fully revealed, then the philosophical ideas of agnosticism are based on the ideas that the human mind is unable to fully comprehend the essence of these phenomena, and defend theories of the primacy of faith over reason, the idealistic “main idea” over the free will of people.
In domestic legal science during the entire existence of the Soviet system, the Marxist-Leninist view of the state and law as the only correct one was dominant. The class nature of these social phenomena, their forced nature, and their dependence on the economic conditions of the development of society were proclaimed as immutable truths. Other theoretical ideas were usually rejected as idealistic, not reflecting the interests of progress and the will of working people.
Obviously, this situation did not contribute to the development of scientific thought, did not allow the maximum use of the achievements of various theoretical directions, and the world experience of jurisprudence. There is no doubt that every serious scientific work, any theoretical thought makes a certain contribution to the treasury of world knowledge and contributes to the progressive development of legal theory.
Nowadays, Russian jurisprudence considers Marxist ideas as one of the directions of theoretical thought, noting both positive features and significant shortcomings in it.
The methodology of science in general and jurisprudence in particular does not stand still. As theoretical research develops and deepens, it is constantly enriched, its techniques and methods are improved, new categories and concepts are introduced into scientific circulation, which ensures an increase in scientific knowledge, a deepening of ideas about the laws of the political and legal superstructure and the prospects for its improvement.
The method of legal science is, in principle, the same for all branches of jurisprudence. It is obvious that the subject of a particular industry and its features impose a certain uniqueness on the use of theoretical principles, techniques and methods in each of them. So, it is obvious that the methods and methods of research, for example, in the history of state and law, differ in many ways from the methods and methods used in criminal law. If in history the comparative method is given paramount importance, then in criminal law statistical, specifically sociological methods should be used more. In the same way, for example, there is originality in the theoretical principles and specific research techniques used in constitutional and civil law.
However, at its core, the methodology of legal science is fundamentally the same for all its branches, including the theory of state and law, given that all branches of jurisprudence have a single subject of study - law as an independent social phenomenon, the patterns of its formation and development, structure, functional and systemic connections, as well as legal aspects of public life of society.
The methods used in legal science are diverse. Usually they are divided into three independent groups. This is a philosophical (general worldview) method, as well as general scientific and particular scientific (special) methods.
Being a generalizing category of all sciences, covering the study of all objects of the surrounding reality with a unified system of concepts, principles, laws and categories, philosophy acts as the ideological basis for the knowledge of all phenomena of nature and society. It represents a kind of key to research, including state and law. Only by using such dialectical categories as essence and phenomenon, content and form, cause and effect, necessity and chance, possibility and reality, can one correctly and deeply comprehend and analyze the nature of many state legal phenomena<Теория государства и права / Под ред. В.П. Малахова, В.Н. Казакова. М., 2002. С. 9.>.
The universal philosophical method - the method of dialectical materialism is used in all sciences, at any stage of scientific research. It comes from fundamental ideas
that the world as a whole, including the state and law, is material, exists outside and independently of the will and consciousness of people, i.e. It is objective that the surrounding reality and the patterns of its development are accessible to human knowledge, that the content of our knowledge is objectively predetermined by the existence of the real world around us, independent of people’s consciousness. The materialistic approach determines that state and law are not self-sufficient categories, independent of the surrounding world, something invented by great thinkers and rulers, that their essence is objectively predetermined by the socio-economic system of society, the level of its material and cultural development.
The essence of the dialectical approach to scientific research, substantiated by the great German philosopher G. Hegel and further developed by K. Marx and F. Engels, in relation to jurisprudence means that state-legal reality should be studied in close connection and interdependence with other economic, political and spiritual phenomena life of society (ideology, culture, morality, national relations, religion, mentality of society, etc.), that the elements of the political and legal superstructure do not stand still, but change all the time, are in constant motion, that the principle of historicism, the constant dynamics of the development of the essence state and law, their transition through the gradual accumulation of quantitative changes from one qualitative state to another - these are necessary laws of human cognitive activity.
Dialectics presupposes a constant struggle between the new and the old, the obsolete and the emerging, the negation of negation as stages in the movement of the elements of nature and society (the present rejects certain elements of the past, and the embryos of the future, in turn, deny the unjustified present), the understanding that there is no abstract truth, it is always specific, that the truth of the conclusions of science is verified by practice, that the law of the progressive development of all elements of the reality around us, including the state and law, is the unity and struggle of opposites.
General scientific methods are those that are used in all or many branches of science and apply to all aspects and sections of the relevant science. Among them, the following methods are usually distinguished: logical, historical, system-structural, comparative, methods of concrete sociological research.
The logical method is based on the use of logic - the science of laws and forms of thinking - in the study of state and legal phenomena. In the process of scientific research, for example, such logical techniques are used as analysis, which is understood as the process of mental decomposition of the whole, in particular, the state and law, into its component parts, establishing the nature of the relationship between them, and synthesis - the reunification of the whole from the component parts included into it and elements interacting with each other (for example, the definition of a legal system consisting of individual branches). Such techniques also include induction - obtaining generalized knowledge on the basis of knowledge of individual (primary) properties, aspects of an object, phenomenon (this is how the concept of its mechanism is determined by characterizing individual organs of the state) and deduction - obtaining knowledge in the process of transition from general judgments to more private, specific (for example, characterization of the components of a legal norm based on inferences about its general understanding, offenses based on knowledge of the concepts of crime and misdemeanor).
The logical method also uses such techniques of formal logic as hypothesis, comparison, abstraction, ascent from the abstract to the concrete, and, conversely, analogy, etc.
The historical method boils down to the need to study the main events in the history of a particular state, legal system, stages of their formation and development, taking into account the mentality of peoples, their historical traditions, cultural characteristics, religion of individual countries and regions.
The systemic-structural method proceeds from the fact that each object of knowledge, including in the state-legal sphere, being unified, integral, has an internal structure, is divided into constituent elements, separate parts, and the researcher’s task is to determine their number , the order of organization, connections and interaction between them. Only after this is it possible to fully and comprehensively understand the object as a holistic entity. At the same time, each object under study is a component element of a more general structure (superstructure) and it is necessary to study its place in the superstructure, functional and constructive connections with others
its elements. Thus, to study the concept and essence of law as a whole, one should first examine its constituent elements - branches, legal institutions, individual norms. In addition, it is important to determine the place of law in the general system of normative regulation of social relations, the relationship with other parts of this system.
In the same way, the mechanism of the state consists of a certain system of bodies, different in functional purpose (legislative, executive, law enforcement, etc.). In turn, the state is included as an integral part in the political system of society along with parties, public associations and other organizations and performs its specific functions in this system.
All branches of jurisprudence, including the theory of state and law, also actively use the comparative method, which usually means the search and discovery of common special and individual features of a particular political and legal phenomenon, a comparison of state and legal systems, their individual institutions and other structural components (forms of government, political regime, sources of law, major legal families of the world, etc.) in order to establish similarities and differences between them. The legal literature separately talks about the historical-comparative method, which involves comparing various state and legal institutions at specific stages of historical development.
The widespread use of the comparative method in jurisprudence served as the basis for the creation of a special direction of legal scientific research throughout the world - legal comparative studies, which, due to its serious scientific and practical significance, some researchers consider an independent branch of legal science.
It is obvious that the active use of the comparative method should not turn into simple borrowing, a mechanical transfer of the experience of other countries to the political and legal reality of Russia without taking into account its socio-economic, historical, national and cultural characteristics.
Finally, the method of specific sociological research should also be included among the general scientific methods. Using this method, the selection, accumulation, processing and analysis of reliable information about the state of the rule of law in the country, the effectiveness of the legislative and executive structures of power, the practice of courts and other law enforcement agencies in the application of laws is carried out.
This method involves the use of a large number of specific research techniques. The main ones among them are the analysis of written, primarily official documents, information summaries, materials from judicial and prosecutorial practice, questionnaires, testing, organization of interviews, surveys and interviews, various ways of obtaining data on the assessment of the public activities of law enforcement agencies, etc. When using this method Mathematical and computer data processing is actively used.
Specific sociological research is aimed at studying the social conditionality of state legal institutions, the effectiveness of their actions, revealing their interaction with other social institutions, and determining the optimal ways to improve the political and legal mechanism in the country.
With the help of private scientific (special) research methods characteristic of specific branches of scientific knowledge, it is possible to achieve a certain deepening of knowledge of state-legal phenomena. They enrich the general and general scientific methods, specifying them in relation to the peculiarities of the study of political and legal reality. Among them are the following most important types:
1) the social experiment method - organizing a practical test of the actions in a specific territory or in a limited period of time of new, projected standards, an updated regulatory system to determine the feasibility and effectiveness of the proposed measures. It was used, for example, to test the effectiveness of creating a jury trial in the country, introducing free economic zones with preferential customs and tax regimes;
2) statistical method - systematic and quantitative methods of obtaining, processing, analyzing and publishing quantitative data on the state and dynamics of development of certain state and legal phenomena.
Among the forms of processing quantitative materials, one can note mass statistical observations, methods of groupings, averages, indices and other methods of summary processing of statistical data and their analysis.
Statistical analysis is especially effective in those areas of state and legal life that are characterized by mass, stable nature and repetition (the fight against crime, taking into account public opinion about the current legislation and the practice of its application, the law-making process, etc.). Its goal is to establish general and stable quantitative indicators, eliminating everything random and unimportant;
3) modeling method - research state legal categories (norms, institutions, functions, processes) by creating models, i.e. ideal reproduction in the mind of objectively existing objects to be studied. It can exist as an independent method, and also be part of a system of techniques used in the process of specific sociological studies of state and legal phenomena;
4) mathematical method is associated with the use quantitative and digital characteristics and is used mainly in forensic science, in the production of various kinds of judicial and other legal examinations;
5) A number of theorists identify the so-called cybernetic method as an independent method. It comes down mainly to the use of both the technical capabilities of cybernetics, computer technology, and its concepts - direct and feedback, optimality, etc. This method is used to develop automated management systems for receiving, processing, storing and retrieving legal information, determining the effectiveness of legal regulation, systematically recording regulations, etc.<См.: Морозова Н.А. Теория государства и права. М., 2002. С. 21.>
As you can see, the methods of scientific knowledge of state and law are diverse and all of them together form an integral systemic formation, called the general method of legal science. All methods are closely related to each other, complement each other, and only in combination, in close interaction, can they successfully and effectively solve theoretical problems of state and law.
§ 5. Historical sketch of the formation of the theory of state and law
as a science and academic discipline in Russia
The need for theoretical understanding of such phenomena of political life as state and law has arisen for a long time. The replacement of primitive social formations with politically organized power required the introduction of legal regulation of social relations, as well as the administrative functions of power. Understanding the meaning of law as an instrument of influence on social relations and the peculiarities of the functioning of the state becomes the main theme of all subsequent development of political and legal thought.
The emergence of various theoretical concepts expressing an understanding of the state, law and their basic institutions, as well as ideas about the relationship between law and state, has been associated with antiquity. The development of views on the state and law in the era of early class societies was based mainly on general ideological principles, religious beliefs, and moral ideas. The formulation and presentation of such ideas in different periods of social development was the lot of representatives of the slave-owning aristocracy, priests, and the highest hierarchs of the church. Later, the baton of constructing legal concepts of the “better” organization of political life passed to the medieval burghers, the ideologists of the bourgeoisie of the early anti-feudal revolutions, and to subsequent promoters of ideas directed against authoritarianism and totalitarianism. Their teachings about law and the political organization of power constitute the history of the theoretical and philosophical science of law (it is studied by law students in
course on the history of legal and political doctrines), which in turn is part of jurisprudence in general and a source of knowledge of the general theoretical science of law in particular.
If the construction of theoretical concepts of the organization of power in the state and its best legal regulation was the lot of individual thinkers and philosophical schools, then the birth of political science and the general theoretical science of law is associated mainly with the activities of universities - first in Europe (XIII-XIV centuries), then and in Russia.
The development of any science is determined by corresponding social needs; in the development of the humanities this dependence is even more obvious. The same is true in jurisprudence. The beginning of a systematic study of jurisprudence in Russia is associated primarily with the practical need for competent managers and employees of government institutions. By decree of Peter I in 1720, it was determined that in order to obtain the necessary legal knowledge to work in government institutions, children of nobles (“from the nobility”) had to undergo training at the College of Justice or at a school specially established for this purpose at the office of the Governing Senate. The training was “hands-on”; Of course, there was no talk about theoretical training of future lawyers. After completing a course of practical mastery of the basics of office work and the “practical wisdom” of jurisprudence and having received a “patent” - a certificate of educational training, specialists began to administer government affairs. Despite the harsh measures to attract nobles to study, there were few “colleges of juniors”, and the organization of legal training remained at the level necessary for the acquisition of only elementary legal knowledge by future officials.
The matter of training legal managers did not make much progress even after Peter. Under Catherine II, it was noted that the “junker colleges” did not receive the necessary knowledge in the “sciences appropriate to them” and the Senate school was closed. Later, under Paul I, the institution of cadets was revived at all colleges, except for the military. Jurisprudence or jurisprudence was the main subject studied there.
Russian universities continued the professional training of lawyers, and the first of them
- University of Moscow.
WITH Since the beginning of the study of special sciences at the Faculty of Law, at first at Moscow, then at other universities, legal theory was neither an independent nor a single branch of knowledge. At universities, the study of the theory of law and state as a separate discipline was not expected. Certain general theoretical problems of law were studied in the course of “moral sciences” together with logic, psychology, and political economy.
A well-known difficulty in the development of general theoretical legal science in Russian universities was the fact that there were not enough trained legal scholars for professorial work at universities. The first Russian professors teaching courses on Russian legislation were mostly practical workers, and the general theoretical knowledge taught by foreign professors was perceived as nothing more than “abstract formulas”, “theoretical sophistications of Western jurists.” Western legal thought of that time was based most of all on the principles of natural law, and the natural law doctrine with the idea of reason cultivated by it, due to its significant abstractness, could not serve as a proper support for the formation of a general legal theory in Russia, the foundation of theoretical jurisprudence due to the practical orientation of domestic jurisprudence, specific features of Russian social practice.
In general, in Russian jurisprudence, the idea of the connection of national law with universal natural law, which dominated in universities in Western countries and was pursued by foreign professors, did not find sufficient support, and the position of the historical school of law strengthened in Russian universities. Therefore, preference in teaching was given not to natural law, as in the West, but to jurisprudence. And this is understandable. Russian reality dictated its conditions: first of all, trained personnel were required for government work. An obstacle to the development of a general theory of jurisprudence was the disorder of Russian legislation.
The need to distinguish general theoretical legal science as an independent academic discipline and branch of jurisprudence arose at a certain stage of social and
historical development, when the varied legal material accumulated over centuries required comprehension, when in social psychology the ideas of law began to acquire ideological meaning.
Beginning of the 19th century marked by major government reforms, the transformation of central government bodies, and the liberalization of the political regime as a whole. In the first decades of the 19th century. Legislative creativity, as one of the state functions in importance, is gradually moving to one of the first places. State reforms during the reign of Alexander I especially revealed the need for a qualitative change in the training of lawyers. The implementation of legislation has become an activity that requires from its executors not only a set of certain knowledge, but also a sufficient level of special theoretical training. Officials were rightfully examined for the quality of knowledge by a special decree of 1809.
The introduction of general theoretical legal training, transferring the training of lawyers to a deep theoretical basis has become as necessary as the practical study of legislation. Legal training and obtaining appropriate education, although they were necessary primarily for bureaucracy, required both mastering the skills of legal work and theoretical and historical knowledge of political and legal experience. The increase in general theoretical training was dictated by the need for highly qualified specialists capable of serving equally successfully in the civil service, and in the judicial and scientific fields. Russian legal science, by the way, continued to be in dire need of legal scholars. Then the direction of teaching legal sciences in Russian universities begins to radically change.
Domestic jurisprudence in Russian universities originated from a single department of domestic legislation - the “Department of Law of the Russian Empire”. According to the university charter of 1804, the course “Encyclopedia, or General overview of the legal system, Russian state laws, i.e. basic laws, laws on states and state institutions” was studied at this department. This course generally covered the study of a significant part of Russian legislation, and its teaching was based primarily on mastering legislative material and its practical application. Although the first Russian professors of jurisprudence - Z.A. Goryushkin, A.P. Kunitsyn, L.A. Tsvetaev - and sought to overcome the practical-dogmatic approach to the study of law; they did not achieve generalization at the level of general legal theoretical knowledge<См.: Томсинов В.А. Развитие юриспруденции // Развитие русского права в первой половине XIX века. М., 1993. С. 41–44.>.
The general structure of domestic legal education, as well as the clearly manifested shortcomings of only a small degree of systematized Russian legislation, did not provide sufficient material for the scientific development of Russian law. Legal science, as well as the literature on legal sciences, was poor in the works of professionals. At the same time, the need for professional training for domestic lawmaking and law enforcement was great and became even more acute over the years.
An obvious shortcoming of Russian legislation at that time was its disunity. The number of systematized normative acts was insignificant, and the total mass of legislation consisted of decrees, commands and regulations issued specifically for each specific case. Some of their texts contradicted each other and, moreover, were not always available. The work of streamlining this huge mass of legislative acts, quite successfully completed under the leadership of M.M. Speransky, showed how acute the problem of training competent professionals, “informed” lawyers, and lawyers is for Russia. The task of bringing legislation “in order” could not be solved in the absence of good legal training of its creators. MM. Speransky recognized this and was the initiator of sending Russian students to study abroad.
German general theoretical legal thought was then known far beyond the borders of German universities. Students from Moscow and St. Petersburg universities, among the most prepared, were sent to Berlin to receive a complete and comprehensive legal education, and by the second half of the 30s. XIX century Russian legal science acquired an independent school of scientists who laid the fundamental principles of Russian theoretical legal science. P.D. Kalmykov, K.A. Nevolin, P.G. Redkin, A.G. Stanislavsky entered Russian history
jurisprudence, including as one of the first Russian professors who combined the teaching of practical jurisprudence and applied legal sciences with the study of theoretical legal science.
The university charter of 1835 provided for the organization of eight departments at Russian universities where domestic legislation was studied, including a new science - the encyclopedia of law. The Encyclopedia of Law served as that part of legal science that, by studying the basic concepts of law, provided their presentation in an interconnected form. At the same time, not all universities taught this discipline independently; As a rule, a significant place in its study was given to basic laws, and the theoretical aspect in the teaching of jurisprudence was inferior to the practical. In 1859, professor at Kharkov University A.G. Stanislavsky delivered a memorandum addressed to the dean of the faculty “On the need to separate the science of state laws from the encyclopedia of law and on the need to teach the history of Russian legislation,” in which he substantiated the importance of a systematic study of the theoretical principles of law for the knowledge of legislation in general.
With a further increase in the number of departments and expansion of the range of legal disciplines taught at universities, in 1863 the courses “Encyclopedia of Legal and Political Sciences” and “History of Philosophy of Law” were introduced. Course of the Encyclopedia of Legal and Political Sciences (aka
Encyclopedia of Law) was read for all law students, regardless of their further specialization. The main objective of the encyclopedia of law was a systematic presentation of legal science, a general overview of the system of state legislation and the state of law. The encyclopedia of law was supposed to provide a certain set of sufficient knowledge, basic information about existing legal systems, and legal thinking skills.
The training of legal personnel in pre-revolutionary Russia was carried out by law faculties of universities. The Imperial School of Law, which trained “educated figures for public service,” and the Demidov Lyceum, after its transformation into a law school, were equated to university law faculties, but they had special rules for the training of lawyers. Restrictions on other educational institutions were explained by the fact that only universities could provide training for legal practitioners: a university is not only and not so much a professional school; Special training of lawyers at universities was based primarily on scientific training. Studying at the Faculty of Law was intended to provide a general scientific education along with special scientific training. It was believed that a future lawyer should have scientific knowledge not only in the legal field; a lawyer must be an educated and comprehensively developed person, have good humanitarian scientific training.
In order to facilitate the perception of university knowledge by law students, it was proposed to introduce “Introduction to Law” as an initial (“elementary”) course. Universities in Germany served as an example. There, at first, the study of the encyclopedia of law was carried out as part of teaching a course in history and the novelistic system of law. Later, having abandoned the encyclopedia of law in this form, German universities introduced the course “Introduction to the Study of Law.” The point of such a course was to teach students in a condensed, accessible form the basic legal concepts without scientific and theoretical dogmatism, without a review of individual branches of law in their interrelation, without explaining the meaning of law as a phenomenon of social culture. Students had to understand all this in the process of further training, and at the beginning - only introductory knowledge. In Russia, general theoretical legal science has not become an “introduction” to the study of law.
The Encyclopedia of Law is considered the predecessor of the modern science of the general theory of state and law; the general theory of law began with an encyclopedia of law. Moreover, in Russia, disputes have not been avoided regarding the place of the latter in jurisprudence: to consider the encyclopedia of law as an independent science or to classify it as an introductory discipline that serves as an introduction to the study of law.
Some researchers, following Western jurists, saw the task of the encyclopedia of law as an introductory course in the study of law, serving exclusively pedagogical purposes of preparing students for the perception of legal sciences. Others overly expanded its understanding to understand the meaning of philosophical science in general and determine the influence of philosophical and legal teachings on the formation of the science of law. Supporters of recognition of encyclopedia taught in universities
The rights of the meaning of an independent science saw its main importance in the systematic presentation of the total amount of knowledge of jurisprudence in the form of basic, starting concepts that can subsequently serve as the foundation for obtaining subsequent legal knowledge. N.K. Rennenkampf, M.N. Kapustin, S.V. Pakhman and many other domestic jurists, undoubtedly recognizing the independent significance of the encyclopedia of law among other legal sciences, only connected the study of such phenomena as systems of law and legislation, the system of legal sciences with the science of the encyclopedia of law; Only the encyclopedia of law, in the opinion of the majority of Russian legal scholars, studies one of the most important issues of jurisprudence - the influence of the social life of society on the nature of legal regulation carried out by the state. Some researchers, reconciling the formal legal and philosophical approaches to assessing the subject of the encyclopedia of law, proposed dividing it into a material encyclopedia (the moral aspect of legal science) and a formal encyclopedia (introduction to jurisprudence, study of the structure of law)<См.: Рождественский Н. Энциклопедия законоведения. СПб., 1863. С. 23.>. Note that polar opinions about the importance of general theoretical legal science in jurisprudence are still found today.
The significance of the encyclopedia of law (or the general theory of law) as a science and its introduction as an academic discipline in the process of professional training of future lawyers is explained by the development of human knowledge, their specialization and the need for their subsequent processing in a complex. Indeed, if initially the study of law occurred with the accumulation of a certain amount of knowledge in individual branches of law, then subsequently the science of law - jurisprudence - became so ramified, and its branch branches so specialized, that the need to unite this enormous mass of special legal knowledge gave rise to the birth of a general theoretical science of law, linking together a mass of special legal knowledge.
The encyclopedia of law became such a synthesis of legal knowledge, knowledge about the phenomena of legal life. The main task facing this science was formulated as follows: this
- definition of the general system of knowledge of legal sciences and the system of law as a social phenomenon.
TO beginning of the 20th century general theoretical legal science acquires the main features and properties that characterize its current state. Scientific works of D.D. Grimma, B.A. Kistyakovsky, M.M. Kovalevsky, N.M. Korkunova, L.I. Petrazhitsky, G.F. Shershenevich became a significant contribution to the development of general theoretical legal thought. Although the discussion in jurisprudence was still ongoing about the place of the general theory of legal science among the legal sciences, the opinion that the theory of law should be considered an introduction to the study of law, a kind of preface to jurisprudence, gradually gave way to another: the science of legal theory is an independent field of knowledge, consisting in a systematic presentation of the entire complex of knowledge about law, as well as in the preparation of methodological approaches to its study. General theoretical legal science is still for some time I distinguished between the encyclopedia of law and the methodology of law.
The Encyclopedia of Law was read as a special scientific discipline at the beginning of the course of study, and this practically completed the theoretical and philosophical training of future lawyers. Therefore, many experts have made proposals about the feasibility and great benefit for future lawyers of returning to the most fundamental problems of general theoretical legal science at the final stage of students receiving legal education.
The general theory of law and state continued to serve as a reflection of specific historical needs, interests, and goals of certain social strata, influential groups, and society as a whole. The evolution of theoretical ideas about law and the state and their basic elements was then determined by the progressive gains of the bourgeoisie in relation to the authoritarian state. The affirmation of the priority of the fundamental rights of citizens and the provision of such a mechanism of power, which to a certain extent limited the willfulness of the sovereign, required a revision of the conceptual provisions of the general theory of law and state.
Since the beginning of the 20th century. There has been a process of separation of political theory from legal theory. The theory of law and the theory of state began to be considered differentiated from political science.
Immediately after the October Revolution of 1917, the general theoretical discipline taught in Russian universities continued to be called the encyclopedia of law. At the beginning of 1919, for reasons of the need to reorganize higher legal education, all law faculties in the country were closed, and instead of them legal and political departments were organized at
faculties of social sciences. General theoretical legal disciplines were taught in various courses entitled “Technique of Legal Thinking”, “Teaching of Legal Consciousness”, “Psychology of Legal Experiences”, “Introduction to the Study of the Sciences of Law and State”, “Technology of Legal Norms”. Textbooks were published under the headings “General Doctrine of Law”, “General Theory of Law”, “Theory of Law”, “Elementary Concepts of State and Law”<См.: Плотниекс А.А. Становление и развитие марксистско-ленинской общей теории права в СССР. Рига, 1978. С. 83–84.>.
In 1924–1926 In Russian universities, faculties of Soviet law, faculties of law and local economics were formed. Then the general theory of law and state was studied in the course “Fundamentals of the Soviet Constitution in connection with the doctrine of law and state.” A few years later, by the end of the 20s, “General Theory of Law” and “General Doctrine of Law, State and the Soviet Constitution” appeared among the university legal disciplines. At that time, the need to introduce
the educational process of a discipline that gives not only the most general, introductory idea of the problems of legal science in general, but also studies the legal form and essence of law and its connection with the political institutions of the state<Там же. С. 142.>. During these years, “revolutionary” theories of law and state received the greatest development, including explaining the issues of the relationship between “the law of the proletarian state” and “bourgeois law” after the completion of the proletarian revolution. I.P. Razumovsky, E.B. Pashukanis, M.A. Reisner, P.I. Stuchka were prominent representatives of this direction in the theory of legal science. The political specificity of the post-revolutionary history of Russia explains the absence of other directions in the theory of law and state supported by the official authorities. At the same time, significantly different assessments of the importance of law after the proletarian revolution were given by I.A. Ilyin, Smenovekhovites A.M. BobrishchevPushkin, N.V. Us-tryalov and others.
The beginning of the construction of a comprehensive system of knowledge about law and state and the formation of the Marxist-Leninist theory of state and law as a legal science and academic discipline is associated with this same period. In the history of Russian legal science, this period was associated with a materialistic, class approach to the study of law and state, ideologically substantiated mainly in the works of the German philosophers K. Marx and F. Engels, and which was developed in the works of their followers in Russia, where dialectical -the materialistic approach to the study of law has long been predominant and has had a significant impact on the current state of theoretical legal science. The fact is that the Marxist-Leninist legal theory considered such phenomena as the state and law as a single object of class society. She proceeded from the fact that since a certain legal order does not exist outside of society, and the type of social organization is strikingly different, for example, among primitive people and in an industrialized society, then the legal norms of social life, as well as legal activity, can differ significantly from one type of state -
To to another, from one society to another. By examining the constant, unchanging elements of legal systems, as well as the specific, defining fundamental differences of these systems, it is impossible to abstract from the way of organizing social relations, the nature of objective law supported by the authorities in a particular society. Marxism recognizes the connection that exists between law and the state as objective, invariably showing the influence of one phenomenon on another.
Therefore, the gap between the theory of state and the theory of law is considered a well-known shortcoming of general theoretical science in the 20s and early 30s. XX century. Such a division was justified by ideas about the need to preserve the state as a political institution throughout the transition from capitalism to communism, while law was perceived as a relic of bourgeois statehood alien to socialism<Марксистско-ленинская общая теория государства и права: В 4 т. Ч. 1. Основные институты и понятия / Отв. ред. Г.Н. Манов. М., 1970. С. 162.>.
In the 30s a scientific and theoretical basis was created for the development of branch legal sciences, a scientific and methodological basis for the training of legal personnel, the first textbooks on the theory of state and law were published. At the same time, a noticeable drawback of general theoretical legal science is the fact that many scientific provisions that are common and significant for all branch sciences (for example, subjects and objects of law, rules of law, legal capacity, issues of responsibility and
etc.), were “transferred” and were successfully developed in industry research. The organization of research on the general theory of law was reduced to studying the problems of the dictatorship of the proletariat and the class struggle, Soviet construction and the state apparatus, criticism of the bourgeois state and law, etc.
The politicization of Soviet science, the theory of law and state, caused great damage to its development<См.: Скрипилёв Е.А. К разработке истории советского правоведения // Сов. государство и право. 1992. №12. С. 31 и след.>. The overly active inclusion of the ideological element in jurisprudence directed the development of general theoretical legal science towards the idolization of one political-philosophical teaching as the only true one and took the form of a total apology for its individual provisions.
IN In subsequent years, certain shortcomings of the theory of law and state as a general theoretical and academic discipline were eliminated, and creativity began to increasingly predominate in the approach to the study of the institutions of state and law. Books, brochures, and collections of articles began to appear, devoted to individual issues of the general theory of state and law. Works by S.N. Bratusya, S.F. Kechekyan, V.S. Komarova, A.K. Stalgevich were devoted to substantiating the social value of law and a comprehensive study of the mechanism of legal regulation. The value has been determined
And the place of the theory of state and law in the system of legal sciences. It was recognized that the theory of state and law, studying the most important phenomena of state and legal life, derives legal concepts, principles and patterns corresponding to these phenomena. They are guided by branch legal sciences.
This significance is retained by general theoretical legal science to this day. The theory of state and law, thus, serves as the basis for other legal disciplines. “This is an independent science, and not a continuation of branch legal sciences; not the theory of other sciences, but the theory of special laws of state and law - general, basic and most essential”,
And concepts / Answer. ed. G.N. Manov. M., 1970. P. 57.>. In fact, which of the branch sciences allows, for example, to determine the origin, meaning and ultimate goal of law, as well as formal-logical system of law.
The general methodological basis for the study of legal sciences from the early 20s to the end of the 80s. XX century and the science of the theory of law and state, including dialectical materialism, the basic prerequisite for its formation was economic conditionality, and one of the basic principles of the development and functioning of law was its class character. The subject of attention of the general theory of state and law was not only political issues of the theory of revolution, the dictatorship of the proletariat, the essence of the socialist state of the people, or the scientific substantiation of the principles of building the Soviet state apparatus. At different times, special attention was paid to the problems of legality, legal consciousness and legal culture, legal relations, general theoretical issues of the legal system, and criteria for its division into branches. In connection with the publication of collections of the current legislation of the USSR and union republics, as well as codes of laws of the USSR and union republics, general theoretical understanding required questions of systematization of all-Union and republican legislation, such as forms of systematization, limits of codification activity, features of codification in certain branches of law, etc. .
IN Most Western universities, both before and now, do not study disciplines similar to the Russian theory of state and law. General theoretical issues of jurisprudence and state science are taught in the course of political science, during the study of political institutions and political systems. In the West, a different approach to studying has prevailed theoretical and legal problems of jurisprudence. There, the theory of state and law is perceived as a branch of legal science, derived from all other branches of law and common to them<См.: Голунский С.А., Строгович М.С. Теория государства и права. М., 1940. С. 13.>. Teaching law as a “social-normative phenomenon”, a “homogeneous structure”, the application of which gives rise to “new concepts, new meanings, new problems”<См.: Сандевуар П. Введение в право. М., 1994. С. 12, 14.>, currently
Read also:
|
Legal science is a system of knowledge about the state and law in general and individual aspects of state legal reality.
Characteristic features of legal science: Legal science is a special field of knowledge in the system of humanities; Within the framework of legal science, theoretical and applied development of state and law is carried out; The task
legal science is - knowledge of the laws of state and legal life of society;
Legal science is a system of objective, reliable knowledge about the state and law. Knowledge about state and law is based on the achievements of other social sciences and is also verified by practice.
Concept methodology science is used in two meanings: in a narrow sense - as a doctrine about the principles, methods, techniques of scientific knowledge of the subject of the theory of law and state, and in a broad sense. Methodology of the theory of law and state in the latter sense, it is a set of scientific principles, methodological approaches, methods of cognition and the worldview of the researcher, as well as a scientifically developed system of legal (and state science) concepts and categories that serve as tools for cognition of state and law.
Under methodology understands the system of principles and methods of organizing and constructing theoretical and practical activities, as well as the doctrine of this system. IN Methodology content included :
Principles of scientific knowledge;
Scientific approaches (for example, formational and civilizational, used in the study of the typology of the state and legal systems; integrative approach - in the study of the essence of law, etc.);
Methods of cognition;
The worldview of the researcher (the scientist takes a monistic position or is based on a multidimensional vision of government and legal problems);
To the principles of knowledge scientific science refers to the initial, guiding ideas, provisions that the researcher must be guided by. The principles of knowledge are an integral part of the universal, or dialectical, method. Such principles are formulated by dialectical logic, and they include:
-principle of objectivity , meaning that in the process of cognition one should approach the phenomena being studied as they exist in reality, without distorting their essence, without idealizing them;
-the principle of comprehensiveness of knowledge;
-the principle of historicism of knowledge, indicating that the phenomenon under study should be considered in development. In relation to the state and law, this means that it is necessary to find out how this phenomenon arose, what reasons gave rise to it and contributed to its formation and development. There are a number of other scientific principles that are not included in this list.
Along with principles, the initial methodological guidelines for any research are laws of dialectics :
The law of the transition of quantitative changes to qualitative ones (the increase in the number of norms and institutions in the tax sphere led to the separation of such a branch as tax law from financial law);
The law of unity and struggle of opposites (unity of rights and duties; correspondence in legal relations of duties to subjective law);
The law of negation of negation (in the legal system of Russia there are elements of the legal system of the past and future of Russia).
Scientific approaches – This is a methodological compass that points the researcher in the direction of research, the choice of means of knowledge, and largely determines his worldview. Scientific approaches - this is a kind of cognitive strategy chosen by the researcher, a methodological platform on which his views are based in the study of state and law. There are formational and civilizational approaches used in the study of the typology of the state and legal systems; natural law, sociological, normative, integrative approaches - when studying the essence of law.
The central component of the methodology is method, which is understood as a way of understanding the subject of science. In jurisprudence, methods of cognition are the tools that allow one to penetrate into the legal fabric and understand it. The following groups of methods are distinguished:
1) universal philosophical method. It is used in all specific sciences, at all stages of scientific knowledge. The general method is the method of materialist dialectics.
Method of materialistic dialectics, combining a dialectical approach to knowledge of the surrounding world with its materialistic understanding, is the most effective way to study natural, social and mental processes.
When studying law, the method of materialist dialectics is manifested in the fact that the state and law are considered as phenomena that, firstly, are determined by human nature, socio-economic, political, spiritual and other conditions of society.
Secondly, they are closely related to other social phenomena. It is difficult to find a sphere of social relations in society where the state and law do not manifest themselves. By correlating the state and law with other social phenomena, it is possible to determine their characteristic features, role and place in society. That is why the state is compared with the political system of society, politics, social formations, and law - with the economy, legal consciousness, morality, and customs.
Thirdly, the state and law are constantly evolving. Each new stage in the forward movement of society is also a new stage in the development of the state and law.
2) general scientific methods. These include:
Analysis and synthesis;
Induction and deduction;
Ascent from the abstract to the concrete and from the concrete to the abstract;
Method of unity of historical and logical.
Systems approach,
Comparison;
Comparative method. It involves comparing state legal concepts, phenomena and processes and clarifying the similarities or differences between them. As a result of the comparison, the qualitative state of state legal systems as a whole or their individual institutions and norms is established. Comparable objects must meet one general requirement: they must be comparable. You can compare political, state, legal systems, branches of law, legal institutions and norms of the same name. You can do the same thing within a separate legal system. But you cannot compare, for example, the legal system as a whole and a separate legal norm. These objects are incomparable in level, volume, content and characteristics.
If high-level objects that are complex in their structure are compared (for example, states or legal systems of different countries), then this will be macro comparison . A comparison of less voluminous, simpler in structure objects (legal institutions, legal norms, crime in individual regions of Russia, etc.) is called micro comparison.
Only by comparing state legal material and obtaining results, it is possible to determine specific ways to improve state legal systems, improve legislation, strengthen law and order.
Logical method. It includes means and methods of logical study and explanation of law and is based on forms of thinking and laws of formal logic.
Each of the laws of logic (identity, contradiction, excluded middle, sufficient reason) fully manifests itself in law, reflecting its features. All basic legal procedures and processes (and, above all, law-making and law enforcement) are built in strict accordance with forms of thinking - the rules for operating concepts, judgments, and inferences.
Any legal norm is a judgment, and it must meet the requirements of judgment.
The application of a rule of law to a specific situation, a specific person is a deductive inference (syllogism), where the rule of law is a major premise, the case under consideration is a minor premise, and the decision in the case is the conclusion. Logical operations and methods of proof, analogies have been in the arsenal of jurisprudence since ancient times.
The use of logical means in the study and explanation of law allows one to avoid contradictions when constructing legislation, to build a logically consistent and thereby effective system of law, to harmonize the positive, i.e. existing law, with the requirements of natural law, and finally, correctly and competently apply legal norms.
Analysis phenomena involves dividing them into parts and then studying each of these parts. For example, in the category “system of law” the concepts of industry, sub-industry, institution and rule of law are identified and explored.
Unlike analysis , synthesis , - This is the study of a specific phenomenon in the unity of all its component parts. For example, when it comes to law, it is assumed that legal norms, legal customs, religious norms, etc. should be studied in unity. Analysis and synthesis are not only interconnected, but also complement each other.
In accordance with by the method of historicism State legal reality must be approached as changing and developing over time. In different philosophical systems, the method under consideration is interpreted differently. If, for example, in Marxism, when explaining the reasons for the development of society, state and law, priority is given to economics, then in non-Marxist teachings, priority is given to ideas.
System method is the study of state and law, as well as individual state-legal phenomena from the perspective of their systematicity, i.e. joining the relevant system. The state and law themselves can be considered as a system. In this case, intrasystem connections are analyzed within the framework of the state and law itself.
Closely related to the system functional , which consists in clarifying the functions of the state and law and their elements (functions of the state, functions of legal responsibility, etc.).
Hermeneutic method, used in jurisprudence, proceeds from the fact that the text of the norm is a document of a special worldview. Therefore, it needs to be interpreted on the basis of a person’s “inner experience” and his direct perception of “vital integrity.” Any era can be understood only from the point of view of its own logic. For a lawyer to understand the meaning of a law that was in force in the distant past, it is not enough to know its text. He must understand what content was put into the corresponding concepts in that era.
3) special methods, or methods of specific sciences - statistical, concrete sociological, psychological, mathematical, cybernetic, etc. In jurisprudence they are used quite widely, especially in the study of applied problems of science;
Sociological (specific sociological) method. It consists of the study of state and law based on factual data from state science and jurisprudence. In this case, legal material is considered not at the level of abstract categories, but on the basis of specific facts. The sociological method of studying state and law includes such methods as analysis of statistical data and various kinds of documents, socio-legal experiment, population surveys, mathematical and statistical methods of processing material, and some others.
Statistical method is based on the analysis of quantitative indicators that reflect the state and dynamics of a particular phenomenon (for example, crime, level of legality, etc.). It includes observation of phenomena, summary processing of data, their analysis and is used in the study of phenomena characterized by mass and repeatability.
Simulation method - This is the mental creation of models of state-legal phenomena and manipulation of these models. This method is aimed at finding optimal solutions to specific problems.
Method of social and legal experiment consists in creating legal norms on an experimental basis and testing their effect in specific conditions. The capabilities of this method are extremely limited.
Cybernetic method– this is a technique associated with the use of concepts and technical means of cybernetics (for example, the concepts of “control”, “feedback”), etc. This method is used to develop automated processing, storage, and retrieval of legal information.
4) private legal or special legal methods. They are used at the stage of knowledge of legal practice.
1. Formal legal, or legal-technical, dogmatic method used to understand the external and internal forms of legal phenomena. Allows you to formulate concepts, definitions, definitions (legal personality, subjective right, guilt) on the basis of generalization.
2. Methods of interpretation of law are intended to clarify the true will of the legislator, expressed in the text of the law.
3. Comparative legal method is based on the sequential study and comparison of a large number of similar objects. Thus, the advantages and disadvantages of a state or legal institution are determined in comparison with similar institutions in foreign countries.
4. Method of state-legal modeling used to find an optimal model for organizing the state apparatus, rationalizing the administrative-territorial division, forming a legislative system, etc.
5. Method of law-making experiment applies to test both a new legislative act and individual legal institutions (a set of legal norms in the draft law).