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 make it possible to make 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 laws 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
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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 systematic nature, 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).
The scientific method is a complex multi-level education, including a variety of research procedures, techniques, and technologies. In modern science, there has been a tradition of distinguishing the following levels in the structure of scientific methodology: philosophical, general logical, general scientific, special scientific, disciplinary.
Philosophical and epistemological level Scientific methodology is a worldview, ontological, epistemological, axiological aspects of the scientific method. Representing the highest level of generalization of knowledge about the world, philosophy performs a heuristic function in the process of constructing theories of special sciences and sets a general scheme for conceptual models of scientific research. A theory of science without philosophical questions is short-sighted, since it is philosophy that is called upon to expand the horizon of research, reveal its ontological meaning, show the scientist the location of the problem being studied in the system of other problems, and highlight its value, ethical and other aspects. As a result of such a “luminous” influence of philosophy, new, previously in the shadow, facets of the problem being studied are revealed. The philosophical level of scientific research methodology includes such a philosophical method of cognition as dialectics. The essence dialectical method consists: firstly, in its focus on understanding this or that phenomenon of nature, society, culture in the unity of its opposite characteristics, and secondly, in seeing any phenomenon as processual - changeable, developing, due to its internal inconsistency.
An integral part of any scientific research are general logical methods of cognition: analysis, synthesis, abstraction, generalization, idealization, induction, deduction, abduction, analogy.
Analysis- a research technique, the essence of which is the real or mental division, decomposition, dismemberment of the subject of research into parts for the purpose of their comprehensive study.
Synthesis– a research technique, the essence of which is to combine previously identified parts of a cognizable object into a single whole. It is obvious that the synthetic idea of the subject of research is significantly richer and deeper than the original syncretic (undivided) idea of it.
Abstraction– a research technique that involves mental abstraction from certain unimportant aspects, properties or connections of the phenomenon being studied and the identification of significant, essential properties of interest to the researcher. This kind of mental procedure is aimed at the formation of abstractions - individual categories and systems, such as mathematics, logic, etc.
Generalization- a research procedure associated with a mental transition from one concept, judgment to another more general one, or from individual facts, events to their identification in thoughts, the establishment of common properties and characteristics. Generalization is the process of establishing the general properties and characteristics of an object.
Idealization– a research procedure aimed at the mental construction of abstract objects that do not exist and cannot be realized in reality, but have prototypes in the real world. Idealization is not a sterile fantasy, but a schematic representation of reality.
Induction- a method of research and a method of reasoning in which the general conclusion is based on particular premises.
Deduction- a method of research and a method of reasoning, through which a conclusion of a particular nature follows from general premises.
Analogy- this is a method of cognition in which, on the basis of the similarity of objects in some characteristics, they conclude about their similarity in other characteristics. Inference by analogy constitutes the epistemological nature of modeling.
General scientific methods can be conditionally divided into two types: empirical and theoretical. This division is based on the scientific tradition of distinguishing two types of knowledge - empiricism and rationalism.
General scientific empirical methods: observation, description, comparison, experiment, measurement, modeling, systems approach.
Observation– a research method, the essence of which is the contemplation of objects in order to obtain knowledge about their external and essential properties and relationships. Observation can be direct and indirect, i.e. using various types of scientific instruments. The most important rules of observation are unambiguous design, control through repeated observation, decoding. A special type of observation is participant observation, which assumes that the observer is part of the object being studied. Participant observation is observation from the inside. This method is especially relevant in social and humanitarian knowledge, which is always, to one degree or another, self-knowledge, therefore, introspection. In the humanities, the method of introspection is called empathy. Empathy is a way of studying a person and society by getting used to the subject being studied, identifying oneself with the subject being studied, with the goal of understanding it. Participant observation requires constant self-control from the researcher regarding compliance with moral and legal standards.
Description - a research procedure, the essence of which is to record information about the objects under study using certain symbolic means. The description consolidates and conveys the results of observation using natural or artificial language; it can be quantitative and qualitative
Comparison– a research method aimed at identifying the similarities and differences between objects of study, or the stages of development of the same object. It is correct to compare homogeneous objects belonging to the same class based on certain characteristics that are essential for this consideration. Objects that are comparable in one way may not be comparable in another.
Experiment– a method of scientific research, with the help of which the phenomenon of reality is studied under controlled and controlled conditions. During the experiment, the object is isolated from the influence of side circumstances and is presented in its pure form, which opens up the possibility of discovering properties of the object under study that are not observed in natural conditions.
Modeling- a method of studying a certain object - the original by recreating its characteristics on another object - a copy, a model corresponding to the object in those properties that should be studied. Modeling can be ideal and material; one of the effective methods is computer modeling.
Systems approach– a set of general scientific methodological principles based on the consideration of objects as systems. The specificity of the systems approach is that it focuses research on revealing the integrity of the developing object and the mechanisms that provide it, identifying diverse connections and bringing them together into a single picture. In modern philosophy of science, the following basic requirements of the systems approach are positioned: identifying the dependence of each element on its place and function in the system, taking into account the fact that the properties of the whole are not reducible to the sum of the properties of its elements; analysis of the extent to which the behavior of the system is determined both by the characteristics of its individual elements and the properties of its structure; research into the mechanisms of interaction between the system and the environment; studying the nature of the hierarchy of the system; providing a comprehensive description of the system; consideration of the system as a dynamic, developing integrity (6).
General scientific theoretical methods and forms: formalization, axiomatization, hypothetico-deductive method, method of ascent from the abstract to the concrete.
Formalization– a method, the essence of which is to build symbolic, iconic models of a certain subject area, allowing one to develop the structure of the phenomena and processes under study, abstracting from their qualitative characteristics. Within the framework of formalization, reasoning about the objects under study is transferred to the plane of operating with signs - formulas. Relationships of signs replace statements about the properties and relationships of objects. This method is widely used in mathematics and linguistics.
Axiomatization – represents such an organization of theoretical knowledge in which initial judgments are formulated and accepted without evidence. These initial propositions are called axioms. On the basis of axioms, according to certain logical rules, the provisions that form the theory are derived.
Hypothetico-deductive The method consists in first creating a hypothetical construction, which is deductively deployed, forming a whole system of hypotheses, and then this system is subjected to experimental testing, during which it is clarified and specified.
Private scientific level of methodology– includes specific methods and approaches used within a certain group of scientific disciplines. The disciplinary structure of modern domestic science consists of three main blocks: natural, social and human sciences. Consequently, we can talk about the methodological specificity of such a group of disciplines as the humanities, social sciences and cultural sciences. This specificity is determined, first of all, by the specificity of the objects studied by these disciplines - society, man, culture, unlike nature, are products of human activity, therefore, they have special properties that do not and cannot exist in nature.
The methodology of legal science as one of the social and humanitarian sciences is a complex heterogeneous formation. It can be presented as a system of oppositions:
From the proposed scheme it should be clear that paired methodological programs are alternative to each other. It seems that this arrangement, on the one hand, reveals the logic of their occurrence, and on the other hand, facilitates their study. Of course, the proposed classification is schematic and rather arbitrary. Not all methodological programs can unconditionally be attributed to one or another block, however, it sets some cognitive guidelines that can facilitate the process of mastering the methodology of legal research.
Disciplinary level– covers specific scientific narrow disciplinary methods and approaches used in individual disciplines. It is obvious that there are specifically legal research technologies. In essence, they arise as a result of the adaptation of private scientific methodology to the disciplinary specifics of jurisprudence.
The understanding of the method of legal science as a set of rules, principles of knowledge that determine the rational path of movement towards reliable knowledge about the subject and object of legal science is not shared by all Russian jurists. The domestic legal literature presents different views on this issue. According to some authors, a specific method of legal science can only be represented by its theoretical and conceptual apparatus, and general and special methods are only used by legal scholars, but are not developed by them. Other authors believe that the method of legal science consists of both rules, principles of knowledge, and its conceptual apparatus: concepts, categories, principles.
Attempts to include the conceptual apparatus of legal science in its method are untenable, since they do not correspond to the actual relationship between theory and method of science. The method of the theory of state and law is a special component of legal science and has its own content, different from the theory of law. It consists only of rules, principles of knowledge. Categories and concepts, undoubtedly, act as an effective means of scientific knowledge, but in comparison with the method, they perform a different theoretical function that is unique to them.
Categories and concepts are used at all stages of scientific knowledge due to the fact that they reflect the essential aspects of political and legal phenomena and processes and thereby equip the cognizing subject with reliable knowledge about the phenomena and processes under study. Relying on the conceptual apparatus of science, the researcher is freed from the obligation to re-study what already exists in science as reliable knowledge, in particular, to identify the essence and form of the phenomena under study, their elements, connections, features, functions. His attention should be focused on studying those aspects, connections, patterns of the phenomena under study that have not been studied fully enough and knowledge about which is debatable and unreliable.
The conceptual apparatus of science finds wide and direct application in the course of research, in the process of obtaining, describing and explaining new phenomena, their aspects, connections, as well as in predicting trends in their further development. The acquired knowledge is reflected and recorded, mainly using the existing conceptual apparatus of science. New categories and concepts are introduced into scientific circulation only in cases where fundamentally new knowledge is obtained that is not covered by the existing conceptual apparatus of science. Likewise, the explanation of new phenomena and processes identified during the study, their individual connections, and features is carried out using the available conceptual apparatus.
It should, however, be taken into account that the use of categories and concepts in cognition, in the process of scientific research, is carried out not arbitrarily, at the discretion of the researcher, but in accordance with the requirements of deductive inference, ascent from the concrete to the abstract, methods of explanation and prediction. In a word, the application of theories and concepts to achieve new knowledge is a creative process that is subject to certain rules, and their observance is a mandatory requirement for obtaining objectively true knowledge. Any theoretical position, category, theory, if applied incorrectly, will not reveal new truths, but, on the contrary, will become a source of misconceptions and errors.
K. Marx's teaching on state and law did not contain even a hundredth of the mistakes made by his adherents in the person of Soviet legal scholars. Apology for the repressions of the 1930-1950s, justification of the personality cult of J.V. Stalin, all voluntaristic decisions of the party on issues of state and law, interpretation of the essence of law in a positivist spirit as the laws of the state operating in society, excessive ideologization of the general theory of state and law, a disdainful attitude towards the achievements of bourgeois lawyers and an uncritical attitude towards one’s own, not always correct, provisions - this is not a complete list of the “achievements” of Soviet jurisprudence. And all because Soviet lawyers were unable not only to creatively develop the teachings of K. Marx, to cut off from it everything that was outdated and unacceptable in the new conditions, but also to correctly use the fundamental principles of this teaching in scientific analysis. Despite a number of attempts, the main method of scientific knowledge, the use of scientific theories in revealing the subject of the theory of state and law, was not mastered - the method of ascent from the abstract to the concrete.
The ability to operate with theoretical knowledge, categories and concepts of the theory of state and law is enshrined in the rules and principles that constitute the direct content of various general and special methods. But these rules and principles themselves are not formulated arbitrarily, but on the basis and in accordance with the objective laws of the subject of research, reflected in the concepts and categories of science. And where the theoretical-conceptual apparatus is used as an objective basis for methods of scientific knowledge, it realizes its methodological function.
The development of rules and principles of cognition is carried out in the course of special research. On the basis of the known objective laws about law and other legal phenomena, rules and principles of knowledge are formulated. An example of this kind of rules can be the principles of interpretation of law. It is not particularly difficult to discover that the requirements of methods of interpretation of law are conditioned by the provisions of the general theory of law on the legal norm, its structure and forms of expression in normative acts, and on the law-making process.
Thus, the rule that the definition of a term given in the general part of the code retains its meaning for all norms of a given industry is nothing more than a methodological expression of a known relationship between general and specific norms. In turn, the requirement when interpreting the rules of law to take into account the connections of general, special and exclusive rules, protective and regulatory, blanket, reference rules is based on the methods used by the legislator to present the rules of law in regulatory legal acts.
Based on the known patterns of functioning and development of the state and law, legal scholars are developing a method for the theory of state and law. At the same time, they have to solve the following tasks: 1) determine a system of specific methods of knowledge of law; 2) systematize methods, clarifying their epistemological nature and scope of application; 3) to specify general and special techniques in accordance with the specifics of the subject of knowledge, to develop private law methods.
Any method used in the theory of state and law contains requirements and rules that take into account the specifics of the state or law. Thus, in the comparative legal method, the general principles of comparison receive a more specific expression. Based on theoretical provisions about law as a normative regulator of social relations, legal scholars develop specific criteria for the object and basis of comparison, and also identify phenomena and their signs that can act as an object or basis for comparison.
The development of general and special methods in relation to the specifics of political and legal matter is a necessary condition for their successful use in the theory of state and law and other legal sciences. The general theory of statistics, for example, currently has a fairly developed system of techniques for studying the quantitative side of social phenomena. However, all these methods are still timidly used in jurisprudence, since methodological issues related to their adaptation to the knowledge of specific laws of state and law remain unresolved. Overcoming methodological problems that prevent the widespread use of statistical methods in law is the primary task of legal scholars. They are the ones who know the specifics of law, its laws and, therefore, determine the specific areas and limits of the use of statistical tools in legal research, and also formulate specific rules for the statistical analysis of legal phenomena.
For similar reasons, methods of mathematical modeling and experiment, which have received sufficiently deep development in the philosophical literature, are not widely used in jurisprudence.
Thus, The conceptual apparatus of science in cognition performs two functions: theoretical and methodological. Concepts realize a theoretical function if they are used to describe, explain and predict legal or political phenomena. When categories and concepts act as the basis of methodological rules and principles, then they implement a methodological function. But in this case, the result of cognition is not new knowledge about the state or law, their laws, but rules, principles of cognition that are not in the very subject of research and the concepts reflecting it. It is these rules and principles that together constitute the content of such a component of the theory of state and law as a method.
To interpret categories and concepts as a special or the only method of the theory of state and law on the basis that they reflect the essential, natural aspects of legal phenomena means to pass off the theoretical function of concepts and categories as methodological. In practice, this would turn any theoretical research into a methodological one, and the method of the theory of state and law would be reduced to a logical-epistemological analysis of categories and concepts. Ultimately, this approach creates a real danger of identifying methodological problems of jurisprudence with theoretical ones and replacing the former with the latter.
As a relatively independent component of the theory of state and law, the method has its own content - a certain set, a system of rules, principles of knowledge, which are based on known objective laws and guide the researcher to obtain new objectively true knowledge.
Rules, principles of knowledge, applied at any one stage of scientific knowledge or to solve one cognitive problem, together form a separate specific method. Thus, the rules used in the process of interpreting legal norms in their system form a method of interpreting legal norms, rules regulating the process of obtaining general knowledge from individual facts - induction.
The methodological arsenal of the theory of state and law is quite complex. It includes techniques of varying degrees of generality and cognitive tasks, including:
- 1) universal philosophical method. Its universality is expressed in the fact that this method is used in all specific sciences and at all stages of scientific knowledge;
- 2) general methods - analysis, synthesis, abstraction, system-structural approach, ascent from the abstract to the concrete, which, like the philosophical method, are used in all concrete sciences, but the scope of which is limited to solving certain cognitive problems;
- 3) special methods of legal science. They consist of methods and techniques that were initially developed by representatives of non-legal sciences and then used by lawyers to understand political and legal phenomena. These are statistical, concrete sociological, psychological, mathematical methods;
- 4) private methods of legal science. They were developed by lawyers to understand political and legal phenomena and can only be used within the framework of legal science. These include methods of interpretation of law, comparative legal method and some others.
Under method Any science is understood as a set of techniques, rules, principles of scientific activity used to obtain true (objectively reflecting (reality) knowledge.
Rules, principles of knowledge, applied at any one stage of scientific knowledge or to solve one cognitive problem, together form a separate specific method. Thus, the rules used in the process of interpreting legal norms in their system form a method of interpreting legal norms, rules regulating the process of obtaining general knowledge from individual facts - induction.
Currently, all the variety of methods of cognition of state and law is usually classified into the following groups:
1) general philosophical, or ideological, methods;
2) general scientific (general) methods;
3) private scientific (private, special) methods.
General philosophical methods serve as the basis, the soil on which the science of the theory of state and law develops.
Metaphysics explores the highest, inaccessible to the senses, only speculatively comprehended and unchangeable principles of everything that exists in the world.
Dialectics- is the science of the universal laws of development of nature, society, man, and his thinking. It requires the study of reality in the interconnection of phenomena and their constant change and development. Materialism is a philosophical direction that proceeds from the fact that the world is material and exists objectively, i.e. outside and independent of human consciousness; matter is primary, not created by anyone and exists forever. Consciousness, thinking is a property of matter. The knowability of the world and its laws is affirmed.
Based on materialistic and dialectical approaches to the study of state and legal phenomena, conclusions are formulated that:
a) state and law are really existing phenomena;
b) when studying the state and law, one must take into account their constant development and variability;
c) the diverse connections between various state-legal, economic, political, cultural, national and other processes should be taken into account;
d) state legal phenomena should be studied focusing on legal practice, since the truth of science is verified by practice.
There are also theories that refute the very possibility of knowing the state. This is what the philosophy of agnosticism states. Some theories are based on philosophy objective idealism, which explains the fact of the existence of state and law by objective reason, something like divine power. Another philosophical direction - subjective idealism connects the existence of the state and law with human consciousness.
For a long time, Russian legal science was dominated by Marxist an approach to state and law that linked the development of state and legal phenomena exclusively with economic factors, and the science of the theory of state and law itself was ideologized.
In modern science of the theory of state and law, there is no generally accepted approach to methodology; science is at the search stage. There is an opinion that the general philosophical foundation for the study of state and law remains historical materialism, which extends dialectics to the study of state and legal phenomena, considers them in mutual connection, in movement, development, the struggle of the new with the old, etc.
General scientific methods- these are those that are used in all or many areas of scientific knowledge. Among the general scientific methods, it is customary to distinguish: historical, logical, systemic and functional methods.
Historical The method requires that state-legal phenomena be studied not just in development, but taking into account the specific conditions of existence of individual peoples, countries, regions, including taking into account historical traditions, cultural characteristics, customs, and sociocultural roots.
Logical The method is abstract and theoretical and is based on the use of techniques such as analysis and synthesis, induction and deduction. Analysis is a process of mental or actual decomposition of the whole into parts, which makes it possible to identify the structure of the object under study, for example, the logical structure of a rule of law with the identification of hypotheses, dispositions and sanctions in its composition. Synthesis, on the contrary, involves the process of mental or actual reunification of the whole from parts (elements). For example, by combining the characteristics of law, state, legal relations, elements of personal status, etc., general concepts of the most important legal phenomena are formulated.
Induction as a logical technique, it is possible to obtain general knowledge on the basis of private knowledge, for example, by studying the forms of government of individual states, it is possible to formulate a general model of republican or monarchical forms of government. Deduction- this is a logical technique that, on the basis of general knowledge, comes to knowledge of the particular. Thus, based on the general characteristics of democratic and non-democratic regimes, it is possible to determine the political regime of a particular state.
At the core system method lies the study of state-legal phenomena as systems. Any system is a holistic phenomenon, consisting of many other phenomena, and imparts a new quality to the whole phenomenon. The state and law are complex systemic formations, therefore they must be studied in interrelation; this focuses on the knowledge of the objects being studied as an integral phenomenon.
Functional The method allows us to identify in state-legal phenomena their functions, social purpose, methods and forms of action. In other words, all state-legal phenomena are considered not statically, but as active phenomena. Hence the consideration of the functions of the state, law, legal consciousness, etc.
Private scientific methods represent the use by the theory of state and law of scientific achievements of technical, natural, and related social sciences. Private methods most often include the following:
Method of concrete sociological research- this is the analysis, processing and selection of the necessary information about the most important aspects of legal practice. When using this method, a variety of techniques are used: analysis of documents, official communications, oral and written surveys (interviews, interviews, questionnaires), study of materials from judicial and arbitration practice, public opinion on the activities of law enforcement agencies, etc.
Simulation method- one of the main methods for studying state and legal reality. It consists of studying state-legal processes, institutions in models, i.e. by ideally reproducing the analyzed phenomena.
Statistical method- obtaining quantitative indicators of state-legal phenomena and processes. It is most used to characterize mass phenomena characterized by repeatability, for example, to identify the dynamics of crime. Modern statistics allows, based on quantitative data: a) to obtain indisputable evidence of the presence or absence of connections between the analyzed phenomena; b) analyze the factors influencing this phenomenon.
Method of social and legal experiment- a way to test scientific hypotheses or a draft solution. In domestic practice, this method was used, for example, when holding elections in production districts in 1989, establishing so-called free zones with preferential customs and tax regimes in the Primorsky Territory, in the Kaliningrad Region, etc. This method is assessed as promising.
Mathematical method- a way of operating with quantitative characteristics, one of the formalized methods of studying state and legal phenomena. It is used mainly in criminology, forensic examination in the study of traces of crimes, etc.
Cybernetic method- this is a technique that allows one to understand state and legal phenomena with the help of cybernetics. It comes down mainly to the use of not only the technical capabilities of cybernetics, but also its concepts - direct and feedback, optimality, etc. Cybernetics, as you know, is engaged in the development of algorithms and methods that allow you to control a system so that it functions in a predetermined way. The cybernetic method is used to develop automated systems for receiving, processing, storing and retrieving legal information, to determine the effectiveness of legal regulation, to systematically record regulatory legal acts, etc.
Synergetic method in legal science began to be used only recently. The term “synergetics” comes from the Greek word “synergos” and means a joint effect of interaction between various systems capable of self-organization and self-regulation. Synergetics helps the study of self-regulating systems (including random ones) and processes, for example market relations, local government, i.e. phenomena and processes where government intervention is limited.
Among private scientific methods, it is customary to distinguish legal methods themselves. These include comparative legal and formal legal.
Comparative legal the method consists of comparing various state and legal systems, institutions, categories in order to identify similarities or differences between them. Even ancient thinkers argued that truth is learned through comparison. This method is used in studying the typology of states, comparing different legal systems of the world, political regimes, forms of government, government structure, etc.
Formal legal method is traditional for legal science and constitutes a necessary step in the scientific knowledge of state and law, since it allows one to study the internal structure of state and law, their most important properties, classify the main features, define legal concepts and categories, establish methods of interpretation of legal norms and acts, systematize state- legal phenomena.
1. There is a point of view (D.A. Kerimov) that methodology is an integral phenomenon that combines a number of components: worldview and fundamental general theoretical concepts, general philosophical laws and categories, general and particular scientific methods, i.e. not only a system of methods, but also a teaching about them. In addition, methodology is not reduced only to its constituent components, it has its own patterns of development - methodological components interact with each other, and therefore acquire properties different from their individual existence: general theoretical concepts permeate the worldview, universal philosophical laws and categories illuminate the boundaries of applicability general and specific scientific research methods. The relationship between method and methodology is like a dialectical relationship between the whole and the part, the system and the element.
Methodology is not an independent science; it only “serves” other sciences.
2. V.P. Kazimirchuk interprets the methodology of legal science as the application of a system of logical techniques and special methods for studying legal phenomena based on the principles of materialist dialectics.
3. From the point of view of E.A. Sukharev, the methodology of legal science is a scientific knowledge (research) of the essence of state and law based on the principles of materialism, adequately reflecting their dialectical development.
25. The main methodological traditions in the history of legal science. Paradigm shift
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-legal phenomena, it is a system of theoretical principles, logical techniques and special research methods determined by the philosophical worldview, which are used to obtain new knowledge that objectively reflects the state -legal reality.
The methodology in the science of law, its formation and historical development had a number of significant features. Since its inception in the 12th century. and up to the XVI-XVII centuries. The methods of formal logic were predominantly used, and law was practically not involved in the development of its own methods of cognition. Since the 17th century Methods of philosophical understanding of law begin to attract the attention of scientists, which leads to the formation of such a direction of legal thought as the philosophical methodology of cognition. In the 19th century with the advent of scientific (theoretical) jurisprudence, methodological research acquires fundamental importance in the knowledge of law, and in the 20th century. they are beginning to take shape as an independent area of law.
In the 70-80s of the XX century. Sociological and statistical methods began to be actively used. In general, means of knowledge that do not have philosophical status, but are applicable in most areas of science. In the 20th century Due to the emergence of the so-called metascientific areas of knowledge in the methodology of law, new research tools began to be allocated. They represent the principles, forms and procedures of inquiry used by all, or at least most, modern sciences. When turning to these research tools, the theory of state and law ensures its compliance with the modern level of development of scientific knowledge. Modern science, in general, is characterized by a high degree of integration, and interscientific perception of research results and methods is one of the mechanisms of its development; the involvement of the most common research tools and methods of other sciences is a necessary condition for the progress of any science, including jurisprudence.
Recently, a little-known method of alternatives has been developed. The method of alternatives is the solution of scientific problems by comparing and criticizing opposing theories. In relation to law, the method of alternatives is the identification of contradictions between various hypotheses about state and legal phenomena. The origins of this method in its most general form are in the philosophy of Socrates: the method of revealing contradictions was called “maieutics” (assistance in the birth of something new). Socrates saw the task as encouraging his interlocutors to find the truth through argument, criticizing what the interlocutor said and putting forward his own hypothesis of the issue being discussed. During the discussion, all answers were recognized as incorrect and rejected one after another, new answers were put forward in their place, which in turn were also recognized as incorrect, etc. Socrates believed that truth can be found through the method of maieutics.
The developer of this method is rightfully considered to be Karl Popper (1902-1994), a British philosopher, logician and sociologist, one of the greatest thinkers of the 20th century. In 1972, his book “Objective Knowledge” was published, where K. Popper reveals the essence of the method of alternatives: it is always important to find alternatives to existing hypotheses about it in the knowledge of an object, and then, by subjecting them to criticism and thereby pitting alternatives against each other, to identify new ones knowledge about the object. “Theory is criticized from a variety of angles, and criticism allows us to identify those aspects of the theory that may be vulnerable,” he argues.
A number of researchers, in particular R.Kh. Makuev proposed the method of model systems (images). He believes that this method is productive not only in law enforcement, but also in the study of subjects of social and exact sciences. The method of model systems (images) assumes that “logical scientific constructions arise on the basis of virtual (ideal) images in the mental process, which are then photographed by the subconscious, and instantly the final virtual system of models (images) is addressed to memory, in which it is stored (preserved) until until it is required by some social signal (the need for written or electronic reproduction, exchange of oral information, practical activity, etc.).”
Modern law, which has extensive methodological tools, cannot ignore those theoretical developments that appeared thanks to this relatively new law that developed in the second half of the twentieth century. scientific direction, such as synergetics. Having originated in the depths of natural science, synergetics soon came to the attention of representatives of various sciences, including philosophy, sociology, political science, and law.
Synergetics emerged as an independent scientific direction in the second half of the twentieth century. The term synergetics translated from Greek means “joint action.” Having introduced it, Hermann Haken put two meanings into it:
The first is the theory of the emergence of new properties in a whole consisting of interacting objects.
The second is an approach that requires the collaboration of specialists from different fields for its development.
The ideas proposed by synergetics concern not only individual special cases in the field of physics and chemistry, but also ideological foundations in general, are associated with the transition from a mechanistic picture of the world to the world of self-regulation and self-organization, characterized by multivariate (nonlinear) possible development, and are capable of bringing legal science to a new higher level of knowledge.
Synergetics should not be reduced to the science of the role of chance in evolutionary development, of random processes (the attitude towards which in the modern theory of state and law, based on dialectical materialism, is quite unambiguous). First of all, synergetics studies self-organizing processes occurring in complex open systems.
The complexity of a system is determined by its internal structure (including various subsystems that function, including according to their own laws), as well as the irreversibility of development (i.e., the impossibility of bringing the system into exactly the same state as the original one). The openness of the system means that it can exchange energy and matter with the outside world (do not forget that initially we were talking about chemical and physical processes, and in relation to society this can be any factors that influence its development, for example, information) . In the state-legal sphere, we are constantly faced with aggregates that are systemic in nature and include a number of fairly independent components (subsystems), developing, including according to their own internal laws. In addition, due to the constant interaction of most of these systems with the outside world, with various spheres of society, they are open (from the point of view of synergetics) in nature. As for the time criterion, the forward, and therefore irreversible, movement of society, and therefore of state and legal phenomena, seems obvious. Moreover, complex open systems include not only those state-legal phenomena that the modern theory of state and law characterizes as systems, for example, the legal system (which includes, along with other components, a system of law and a system of legislation and is the most obvious example of a complex and open system ). These are also those phenomena that can be considered as components (subsystems) of more complex (not necessarily state-legal) associations, the life of which also proceeds according to the laws of self-regulation. For example, political, legal, economic systems are elements of society as a whole (as the totality of all existing connections). From this point of view, both the state and law can also be considered as primary components of complex open social systems.
Thus, if complex open systems are present in the state legal sphere, then in their development and functioning they will also obey the laws of self-organization.
A.B. Vengerov believes that synergetics “offers a new look at the relationship between necessity and chance, at the role of chance in biological and social systems.” It may entail a paradigm shift in science and claim to be a “worldview approach that includes dialectics as a particular method.” Consequently, neglect of synergetics can lead to legal science lagging behind modern life, from the new picture of the world.
At present, given that synergetics is in the process of development and even in the field of natural science it has many opponents, one cannot count on its unconditional acceptance by all legal science, but it is necessary to keep it in mind when studying law. There are a number of reasons for this:
Firstly, the use of a synergetic approach can help to take a fresh look at state and legal reality as a whole, at the role and value of the state and law in the life of society.
Secondly, the use of synergetics to implement the predictive function of the theory of state and law seems no less important. The limits of legal influence, the content of law and the determination of optimal options for legal regulation of certain relations, taking into account the self-regulation of the relevant systems, can also be studied through the prism of synergetics.
Thirdly, synergetics allows us to overcome the limitations (and sometimes artificiality) of classical mechanics - the progenitor of a number of modern research methods, in particular, dialectical with its rigid determinism and linearity of thinking, as well as cybernetic. The criticism undertaken will help to look at the use of traditional methods of the theory of state and law from a different perspective.
26. Jusnaturalism and juspositivism in the understanding of law at different stages of the development of legal science
27. Principles of historicism, systematicity and objectivity in the study of state and law
The principle of historicism. All phenomena must be studied taking into account their historical development; for example, it is possible to understand the essence and specificity of a state only by tracing the various historical types of the state, in this way its unchanging essential characteristics will be revealed and transitory factors will disappear.
Scientific knowledge of social phenomena invariably presupposes the application of the principle of a historical approach, which requires studying the history of the emergence of social phenomena and processes, the main stages of their historical development, and considering the current state of these phenomena as the result, the result of previous development.
Due to the fact that the world is in constant development and change, scientific knowledge also has a specific historical nature; they are reliable insofar as they correspond to a certain state in the development of the person under study. The subsequent development of this thing being studied means that the scientific information available about it is outdated and needs to be changed and supplemented in accordance with the changes that the object they reflect has undergone. Taking this circumstance into account, the general logical requirements include the principle of a concrete historical approach to the knowledge of the phenomena under study and the recognition of the concrete historical, relative nature of scientific truth. There is no abstract truth suitable for all times; it always has a concrete historical character.
The principle of systematic research. All phenomena are interconnected, so it would be wrong to study any phenomenon in isolation from the factors associated with them; for example, law is studied in relation to the state; this means that all phenomena are studied in a system, in a complex.
Principle of objectivity means that in the process of cognition it is necessary to approach the phenomena and objects being studied as they exist in reality, without speculating or adding anything to them that is not actually there. In the light of this requirement, it is necessary to consider the state and law in the process of their centuries-old development, in their actual connections and relationships, to be able to distinguish the thoughts and motivations of politicians and lawyers from the actual orientation of legislation, ultimately determined by the economic relations of society.