The structure of the theory of state and law
There is no unequivocal opinion on this issue in legal circles.
Alekseev S.S. - TGP consists of 3 interacting parts:
Philosophy of law - consists of methodological problems of jurisprudence.
Sociology of law - issues of the effective operation of legislation, the conditions and causes of offenses, the social structure and levels of legal consciousness of the population.
Special legal theory - includes: problems of sources of law, classification legal norms, legal facts, conflicts of norms, techniques, interpretation, application of legal norms. Alekseev: "This structure is conditional, it is general directions within the framework of a single science, and not separate parts.
In any textbooks you can find the following structure of TGP:
Theory of the state - questions relating to such a phenomenon as the state: the concept, essence, form, functions, mechanism, typology of the state.
Theory of law - issues affecting such a phenomenon as law: the concept, essence, norms, forms, system, interpretation, implementation and application of law. Legal regulation, lawmaking, legal awareness and legal culture, offense, law and order, etc.
It is also possible to identify the structure of TGP on the following grounds: 1) Depending on the method and 2) the object of study.
Functions of the theory of state and law
Functions - the main directions of research activities.
Ontological - (ontology - the doctrine of being), finding and researching material on state-legal phenomena, its systematization, research and analysis.
Epistemological - (epistemology - the doctrine of knowledge), is associated with the knowledge of TGP, the essence, content and forms of state-legal phenomena.
Heuristic - TGP not only cognizes being, but also discovers new patterns in state-legal phenomena.
Prognostic (predictive) - based on the data obtained, the TGP predicts the development of the state and law in the future, their problems.
Methodological - develops a methodology for the knowledge of state-legal phenomena. The concepts and concept of TGP are borrowed by branch and special legal sciences.
Applied (political) - "politics" consultation, development practical advice for various spheres of state-legal reality.
Educational - provides general theoretical training for students.
At the moment, there is a rethinking of functions, the emergence of new ones, the attenuation of old ones, for example, not so long ago the prognostic function did not play a significant role, since it was believed that there was nothing to predict (communism => withering away of the state and law), now no one thinks so, and the role of this function has increased dramatically.
You can also look at the functions of this science a little more broadly, and say about the significance of TGP in 3 aspects:
Significance for theory - TGP is the methodological basis for all legal sciences. It defines the general patterns on which other sciences rely. It formulates the basic concepts that are used by other sciences, thereby the TGP integrates, cements all legal sciences, makes it possible to necessary cases consider them as a single legal science.
The significance for practice lies in the fact that the provisions, conclusions and proposals developed by it are used in the course of state and legal construction. For example, in matters of building state apparatus, organization of the law-making process and law enforcement. A number of course topics are of practical importance and contain knowledge that ensures the successful work of a lawyer, employee law enforcement, ships, etc. These are questions, first of all, of the rules of law, their interpretation, application, determination of the composition of the offense, etc.
The significance for students of this discipline lies in the fact that it is the main basis for the assimilation of all legal sciences. Along with this, it provides certain knowledge, rules, skills, values and orientations necessary for further practical work. It is also important that the TGP creates the basis for the general and legal culture a lawyer, makes it possible to orientate in a huge mass of legislative acts, understand complex state-legal phenomena, make lawful and reasonable decisions in non-standard situations.
OTP is the science of the basic patterns of the emergence, development and functioning of law and the state.
That is, in the process of studying this discipline, such concepts as the state, the form of the state, the functions of the state, the state apparatus, state bodies, law, legal norms, regulatory legal act, law, rule-making, legal awareness and legal culture, interpretation of law, legal relations, lawful behavior and offense, legal responsibility, law and order, etc.
Each science has its own subject of study, which is understood as what the given science is studying. What is the subject general theory rights? In the most general form, we can say that the subject of the general theory of law is the state and law, since it is these phenomena that are studied by this science. At the same time, it must be borne in mind that the state and law are also studied by other sciences (legal and non-legal). The object has its own subject, a certain area, problems identified in this object. Therefore, it is more correct to consider the state and law not as the subject of a general theory of law, but as an object of study of various sciences, each of which has its own subject in this object.
The subject of the general theory of law are primarily the most general patterns of emergence, development and functioning of the state and law. Moreover, these are the most general patterns not of any one country, but of the state and law in general. Investigating them, the science of the general theory of law finds out what the state and law are, when and for what reasons they arise, how they develop and what are the laws of their development, how they function and what role they play in public life.
The most general patterns of the emergence, development and functioning of the state and law are the main, but not the only range of issues in the subject of the general theory of law.
Along with them, the OTP is also studying some other issues:
questions concerning the general relations of the state and law with other social phenomena(economics, politics, culture, morality, etc.), with personality (people);
questions related to the characteristics of various state-legal phenomena, arising from the functioning of the state and law (law-making, legal relations, legality, law and order, etc.);
in the science of OTP, the main legal terms are formulated, which are used in other legal disciplines, in the texts of laws. Therefore, it is simply necessary for a novice lawyer to first of all learn the provisions of the science of the theory of state and law, before moving on to the study of branch legal sciences.
It must be said that the subject of the general theory of law has its own specifics, it lies in the fact that the state and law are not studied separately, but in interconnection. This is due to the fact that the state and law arise simultaneously, due to the same reasons, they pass from one type to another. Law cannot exist outside the state, which creates law and enforces its norms. On the other hand, the state will is usually expressed in the form of legislative and other legal acts. They regulate both the behavior of citizens and the activities of state bodies, institutions and officials.
The complexity of the subject of the general theory of law is also determined by the fact that it covers not only static moments (law itself and the state), but also their dynamics (in particular, the process legal regulation).
It should also be taken into account the fact that the subject of the OTP consists, in fact, of the subjects of two, although closely related, but, nevertheless, independent theories - the general theory of law and the general theory of the state. This also leaves its mark on the originality of the subject of this science. Most likely, in the future, the OTP will exist only as a complex academic discipline based on two sciences - the general theory of law and the general theory of the state.
It should also be noted that the subject of OTP is constantly evolving. It is not science itself that determines the subject of research, but socio-political conditions dictate to it what and how to research. The phenomena of the state and law have always been considered in the science of the OTP, taking into account certain ideological attitudes and from a specific political position. So, for example, in the Soviet period in the science of TG&P, the state and law were considered from the Marxist-Leninist concept, there were such concepts as “the state of the dictatorship of the proletariat”, “welfare state”, etc. At the same time, the concepts of legal and welfare state with the recognition of the principle of securing the natural rights and freedoms of citizens as a fundamental principle.
Function(lat. functio - "execution") - an obligation, a range of activities.
Functions of the theory(science) is those directions of its action that are required, which are necessary for solving the tasks facing it.
The concept of "function" in relation to any system (including theoretical) gives a description, a characteristic of the reference, proper behavior of the system. And in this regard, the functions of theory (science), as well as the functions of any system, should be distinguished from its real, actual action and state, which in practice, in real life functions may deviate. Therefore, the function is one of the criteria (standards) for assessing the state and efficiency of the theoretical system.
The general theory of law, like any science, certainly has a theoretical-cognitive (epistemological) function. Theoretical-cognitive function- this is a function that consists in the research development of its subject, in its theoretical development. Based on the implementation of this function, the formation of a general theory of law takes place as information system. The peculiarity of this function lies in the fact that it is performed by science, as it were, "for itself", for its development, and in this sense, the implementation of the epistemological function is a condition for the existence of science. The content side of this function is determined by the specifics of the subject and the methodology used. notice, that all the methodology that is being discussed in relation to any theory is considered through the prism of the epistemological function, and is mainly focused on it.
Another important function of the general theory of law, which follows from the very nature of this science and determines its place in the system of legal sciences, is methodological function general theory of law - the function of developing general legal knowledge necessary for theoretical decisions in the field of branch legal sciences.
As already mentioned, the method in science is knowledge that is used as a means of obtaining new knowledge. The knowledge developed by the general theory of law, by its nature, is such that in its main volume they are used as a means of solving industry problems. theoretical problems: within the framework of the general theory of law, general legal patterns are formulated, the necessary general legal concepts and designs.
The methodological significance of the general theory of law is also due to the fact that within its framework the problems of the methodology of jurisprudence as a whole are developed, directly given general characteristics legal science methods.
It is important ideological function the general theory of law, which is objectively inherent in it (as in any social science). The general theory of law, like no other legal science, participates in the formation of a component of legal consciousness - legal ideology. Moreover, given the political and legal nature of this science, we can talk about its ideological role. The significance of these moments is especially important at the stage of formation of a new social and legal ideology in society.
Close to ideological function educational function the general theory of morality, which can also include the educational value of this science, since the corresponding academic discipline is built on its basis. The general theory of law should contribute to the growth of the legal culture of the population, help to find the right guidelines in the field of public legal life to cultivate respect for the law, justice, constitution.
predictive function general theory of morals the function of scientific foresight in the field of legal phenomena, the function of putting forward scientifically based hypotheses. It concerns both the directions of development of law in general, and the expected effectiveness of the adopted regulatory and legal decisions.
application function of the general theory of law is connected with the direct entry of this science into practice - law-making and law-realizing. The implementation of this function consists in the development of rules legal technique, methods of interpreting legal acts, formulating proposals for improving legislation, its systematization, in resolving other issues of a practical nature.
Other functions of the general theory of character are also called: heuristic(essentially, this is another name for the epistemological function), political(close in its characteristics to the ideological one), organizational(we can say that in general it is covered by the application function), scientific advisory and etc.
- Everything that is said about the functions of the general theory of law applies in principle to the theory of the state.
General theory of law in the system of legal sciences. The subject of the general theory of law. Jurisprudence means the science of law, it was defined as a science whose goal is to present the principles of concepts and characteristic features common to various legal systems Legal science jurisprudence the totality of knowledge about the processes and patterns of law of legal consciousness of legal relations.
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TOPIC 1: CONCEPT AND SUBJECT OF THE GENERAL THEORY OF LAW
- Legal science and its connection with other social sciences.
- General theory of law in the system of legal sciences.
- The subject of the general theory of law.
I. Science is an important area of human activity. Science aims to obtain and systematize objective knowledge about reality, and has a complex structure.
Science it is a system of reliable, continuously replenished knowledge about nature, technology, society and man, his consciousness and activity.
Each science considers a certain range of phenomena of nature or society, which is the subject of this science. Depending on whether this range of phenomena relates to the development of nature, society, or the world of technology, social and natural sciences are distinguished (some authors single out technical ones as well).
- natural physics, chemistry, biology, geology, astronomy and others study nature;
- public explore human society, the history of its formation, development;
The social sciences also include legal science, a field of human activity that studies the state and law as independent, but organically interconnected important spheres of society. Like every science, legal science also has as its task the acquisition of new objective knowledge about its subject, i.e. about the state and law, the systematization of this knowledge, description, explanation and prediction based on the social laws various state-legal phenomena and processes.
"Jurisprudence" means "the science of law", it was defined as a science, the purpose of which is to present the principles, concepts and characteristics common to various legal systems.
Legal science (jurisprudence)a body of knowledge about the processes and patterns of law, legal consciousness, legal relations. Jurisprudence studies the process of the emergence of law as a social phenomenon and is looking for answers to difficult, long-standing questions about when this phenomenon arose, what reasons caused it to appear, what stages law went through in its centuries-old development and why, under the influence of what social processes its development.
Jurisprudence is one of the most ancient sciences. The first systematic knowledge of law was presented in the works of the greatest thinkers Ancient Greece Plato (427347 BC) and Aristotle (384322 BC).
The most intensive legal science begins to develop in XVII century, in the era of the decomposition of feudalism and the beginning of bourgeois political revolutions, in connection with the need of the bourgeoisie to develop the principles of the bourgeois state and law and justify the legitimacy of the struggle against the feudal order and the feudal state and law.
A significant stage in the history of legal science is associated with the names of K. Marx, F. Engels and V.I. Lenin, who developed the doctrine of law from a materialistic, class position.
Attention to theoretical studies of law is not weakening. As before, all sides, aspects of law that are of scientific and practical interest are being studied in detail.
Being an element existing system Sciences, jurisprudence, in turn, can also be considered as a system
Currently, there are several classifications.
First classification:
- general theoretical sciences (theories of law and state; general theory of law, sociology of law);
- historical and legal (historical) sciences (history of law and state, history of political and legal doctrines);
- branch, special sciences that study certain branches of law (sciences civil law, administrative, criminal, etc.);
- applied (interdisciplinary) sciences of a complex nature (forensic science, forensic statistics, forensic medicine, forensic psychiatry, etc.);
- international legal sciences that study international law (international public and international private law).
Structurally, all legal sciences can be conditionally divided into three parts.
- legal sciences of a historical profile (history of state and law, political and legal doctrines);
- branch legal sciences (state, criminal, civil law);
- applied legal sciences (forensic medicine, forensic psychiatry, forensic science, forensic statistics, etc.).
II . Regardless of whether we divide law into public and private or not, there will remain a science that is called upon to study the fundamental and general methodological issues of law, which will integrate the knowledge accumulated by the branch sciences. And this science isGeneral Theory of Law (GTL).
The term "theory" is of Greek origin and in translation means "consideration", "research".
The general theory of law was formed as a result of the progress of the positive sciences. Appearing in late XIX in. It was conceived as a means to go beyond simple description rights. Fencing off theories natural law, the general theory of law was based on the idea that law can be "the subject of positive science".
General theory of lawis a science that studies the state and law in their historical development, interrelation, social, economic and political conditionality.
The general theory of law explores a wide range of problems, which can be divided into six relatively independent parts.
1. Problems of the essence, content and form of law as a regulator of social relations.OTP is designed to reveal the essence of law, its difference from other social phenomena, the place of law in the structure of society, the form of expression and existence of this phenomenon.
2. Problems of the structure, structure and operation of law.The main attention is paid to the analysis of the system of law as an integral entity and the totality of its constituent branches and institutions of law. Research is being carried out on lawmakingactivities of the state, ways and forms of the implementation of law in specific respects, as well as methods designed to ensure the strict execution and observance of legal norms by citizens and other subjects of law.
3. General problems of formation and development of law. - study of the patterns of formation and development of law, ways of transition from one historical type of law to another, as well as prediction of its future states.
4. Problems of ways and means of knowledge of law.OTP is a methodological science designed to develop ways and means of knowing the law.
5. Problems of functioning and development of legal science.Science of science is an integral part of the general theory of law and includes a description of legal science as a relatively independent complex scientific knowledge, specific patterns of development
6. Problems of using legal technique, legislative style, methods of interpreting law in the activities of law-making, law enforcement and other bodies and institutions of the state.AT this case we are talking on issues that are of an applied nature for the general theory of law and designed to ensure the implementation of its provisions and conclusions into practice.
The general theory sets as its task the study of not all, but only the most general patterns of the functioning of the state and law. Unlike other legal sciences, theory does not study any one area, area of legal reality, not the history of state and legal life, not the state-legal phenomena of any one country, but the general laws of development of the state and law as a whole. The theory of law, relying on the achievements of the branch sciences, studies only that which is common to all branch sciences. In relation to them, the theory of law acts as a general methodological science. It is in theory that the main categories and concepts are developed, without which it is impossible to study branch sciences.
The theory of law has the closest contacts with those sciences with which it is connected by the unity of objects (law and states) and, accordingly, the proximity and close connection of objects.
Theory of Law and History of Law and Statestudying the same objectslaw and state), but their subjects of study are different: if the task of history is to reconstruct in chronological order and in its entirety the processes that occur with law and the state in the history of society, then the theory is only interested in the general laws of these processes, cleared of layers of random historical facts. It is historical science that provides the theory of law with material for generalizations.
Theory of Law and political science ( political science) contact about, first of all, the state. The difference in their approaches to this object is that the theory studies the state mainly from the inside (essence, structure, mechanism, etc.), and political science considers it as an element political system society. At the same time, both of these approaches mutually enrich each other.
Of great importance for the theory of law are its connections with economic theory . Without analysis economic structure society, material factors, it is impossible to understand the nature of law and the state. Political economy explores the laws of development of production relations, that is, the economic basis of society. To reveal the essence of law, its conditionality by production relations, the general theory of law uses the provisions and conclusions of political economy, including its categories such as production relations, productive forces, property, mode of production, etc. However, the subject of general theory of law differs significantly from the subject of political economy. economy, since it covers the patterns of legal, rather than economic phenomena. Therefore, the lawyer's appeal to the sphere of economics is justified to the extent that it is necessary for the knowledge of the subject of the general theory of law.
OTP and sociology of law and philosophy of law.
The sociology of law tends to explore "law in life", the main task is to understand the effectiveness of the implementation of law in line with social justice.
Philosophy of Law" studies the similarities and differences between the naturalistic and anthropological foundations of law, while performing an educational function in the field of legal consciousness: in the end, justice remains the subject of the philosophy of law.
The general theory of law occupies an intermediate position between the philosophy of law and the sociology of law. At the same time, it accounts for the development of the main methodological issues of jurisprudence.
III. Each science has its own subject of study. The subject of science is what science studies, theoretically masters in any object.
Law as a social phenomenon has many aspects studied by legal sciences. The general theory of law deals with the knowledge of law in itself. general meaning and consequently, should give an answer to the question, what is law, how, why and for what it appeared, what are its regularities.
The subject of the general theory of lawis the essence, content and form of law, the laws of its emergence, development and functioning.
The subject consists of the following elements:
Essence this is the unity of internal aspects, properties, signs remaining in law throughout its existence.
The form it is a way of being, a way of expressing and functioning.
Law patternsare objectively determined and objectively necessary relatively stable trends resulting from the manifestation of repetitive relationships between entities
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General theory of law as a set of the most general knowledge about law, the patterns of its emergence and development has an important cognitive and practical significance, which is most fully revealed in its five functions: theoretical, methodological, ideological, educational, practical-organizational.
The theoretical function of the general theory of law is expressed in its ability to describe and explain the existing legal practice, legal systems, real phenomena and processes, as well as predict the future development of law, legal science and practice.
Concepts, categories of the general theory of law are intensively used in the process of research in the field of legal science, in the preparation of draft laws and drafts of other regulatory legal acts, in decisions made by law enforcement agencies. It's hard enough to find any official legal document, which would not include such widespread general theoretical concepts as the rule of law, law, objective law, legal obligation, responsibility, subject of law.
The role of the general theory of law is also very significant in explaining legal phenomena, processes, events, and facts. Its theoretical and conceptual apparatus reveals the most important, basic patterns, properties, signs of law and other phenomena. Using such knowledge, one can correctly and correctly understand a significant part of existing or existing phenomena: explain why these phenomena arose, how they are arranged, in what connection they are with each other. So, from the standpoint of the doctrine of the essence of law, legal norm, it seems possible for the system of legislation to distinguish truly legal establishments from arbitrariness erected into law, to systematize the rules of law by branches and institutions of legislation, to explain the legitimacy of the formation or withering away of a certain legal institution. General provisions about the system of legal acts, the rules of legal technique allow us to correctly explain the events and processes that are so rich in the activities of law-making and other law-making bodies, to identify gaps and contradictions in law, to detect imperfect legal regulations in a timely manner, since such legal phenomena are fully consistent with existing provisions of the general theory of law.
A characteristic feature of the general theory of law is that its theoretical and conceptual apparatus is used to explain and substantiate not only facts and events, but also theoretical provisions and conclusions formulated in the field of specific legal sciences. So, the doctrine of the essence of law, legal acts, legal consciousness, legal relations is used to reveal the essence industry norms law, their systemic structure, forms and methods of implementation in specific respects.
The function of the general theory of law as the basis of theoretical knowledge of the subject of other branches of jurisprudence is organically supplemented and developed by the methodological function. The creative development of the method of science has a direct impact on the process of researching the ways and means of cognition of the subject of other branches of jurisprudence. Representatives of specific legal sciences are very willing to use in their research the provisions of the general theory of law on the application of the philosophical method in jurisprudence, methods of interpreting law, comparative legal and concrete sociological methods, studying the effectiveness of legal norms and many other fundamentally important methodological problems.
The use of the method of the general theory of law by representatives of specific legal sciences is a natural phenomenon. Law as a relatively independent component of social life is studied, studied by a strictly defined set of methods of scientific knowledge, developed primarily in the field of general theory of law, in relation to its subject. However, the process of cognition of the subject of civil, labor, criminal law and other legal sciences basically repeats the process of cognition of the subject of the general theory of law. He consistently goes through the same stages of collecting and generalizing empirical facts, ascending from the concrete to the abstract, system analysis, etc. Accordingly, the same methods of scientific knowledge are used. Representatives of specific legal sciences do not need to re-develop the fundamental methodological issues of jurisprudence, but it is much more convenient and expedient to use the existing knowledge in the field of general theory of law.
The general theory of law also performs an ideological, educational and practical-organizational function.
The general theory of law is inextricably linked with legal ideology, that is, a set of views and ideas regarding the existing orders in society, legislation, as well as ways to further improve, change the current legal system, legal institutions and law enforcement agencies.
Thus, all the functions of the general theory of law as a fundamental, fundamental science in the system of jurisprudence ensure its transformation into a reliable theoretical and methodological basis for solving urgent problems. legal tasks in the field of science and legal practice.