Basically, in the educational literature, the legal and logical structure of the rule of law is distinguished.
The structure of the rule of law (legal)- this is its internal structure, characterized by the presence of interconnected and interacting elements, actually expressed in the sources of law.
Allocate a three-link structure of the rule of law, the elements of which include hypothesis, disposition and sanction.
Hypothesis is a structural element of the rule of law, indicating the conditions under which the rule is implemented. The hypothesis not only describes these circumstances, but also gives them the meaning of a legal fact. Any clause can serve as a hypothesis - “unless otherwise provided by law or contract”, “a list of cases when dismissal of an employee is allowed”, “the very use of words” under the contract” (the need to conclude a contract). In norms designed for continuous operation (primarily in constitutional law), a hypothesis is not a necessary element.
Classification:
1.on the number of circumstances indicated in the norm:
simple (one circumstance),
complex (the presence or absence of several circumstances in the aggregate),
alternative (connects the actions of the norm with one of several circumstances listed in the NPA article).
2.
abstract (contains general, generic features of the conditions for the operation of the norm)
casuistic (connects the implementation of the norm with strictly defined life circumstances)
Disposition is a structural element of the rule of law, which determines the very rule of conduct.
Classification:
1.By way of presentation:
direct - only indicates the rule of behavior itself, without fully revealing its content.
descriptive - reveals the content of the model of the necessary behavior, contains an indication of essential features behavior.
referential - contains a rule of conduct in the general form, referring the subject of implementation to another article or part of the NPA (for example, the same actions performed repeatedly).
blanket disposition - contains a rule of conduct in the most general form, referring the subject of implementation to other NPAs.
2. according to the degree of obligation of the prescription:
3. depending on the form of expression:
empowering
binding
forbidding
Regulatory norms of law, as a rule, establish the content of the rule of conduct, which is expressed in the extent of the permitted or proper behavior of the parties to the regulated relationship. That part of the legal norm, which fixes the rights and obligations as a measure of their behavior, is called disposition. In protective norms, the prohibition itself acts as a disposition, and the description of the illegal act is considered as a hypothesis.
Sanction
Indicates the adverse consequences arising from the violation of the disposition of the legal norm. Exists point of view that sanctions can be both negative, unfavorable - punishment measures, and positive - incentive measures (a bonus for the conscientious performance of official duties by an employee). And in this sense it is impossible to equate the sanction and punishment.
Classification:
1. by degree of certainty:
absolutely certain (precisely specified type of punishment, effects),
relatively certain (the law enforcer can determine the specific type of liability),
2. according to the nature of the sanctions envisaged:
simple (provide for only one type of punishment)
alternative (provide for two (less often - several) types of adverse effects).
cumulative (provide for basic and additional punishment)
punitive and
restorative.
It should be noted that the rule of law and the article of a normative legal act do not always coincide. An article of a NLA may contain several norms, it may be different: a norm is set out in several articles of one NLA, sometimes in different laws. It also happens that sanctions of certain norms are singled out in separate articles. Therefore, citing as an example a legal norm in the unity of all its three elements, it is necessary to analyze several articles of a normative legal act.
Also, in the text of the NLA, all three elements (hypotheses, dispositions, sanctions) may not be expressed. But this does not mean that the NPA is poorly designed. When developing legal acts, the law-making subject proceeds from the need to create a sufficiently compact text (but not to the detriment of the content). Therefore, those elements of the rule of law that a person can “think” on the basis of logic are not prescribed in the text of the NLA. For example, if you have entered into an employment contract, then there is no need to state in the text of the ILA that an employment relationship has arisen between the employee and the employer. It's obvious. Or if the Criminal Code provides for punishment for the commission of this or that act, then there is no need to prescribe that such acts cannot be committed. This is also clear to everyone.
The advantage of the three-element (three-link) scheme is that this scheme encourages law-making subjects and practitioners to carefully and comprehensively analyze the normative material in its entirety, to compare the inextricably linked articles of normative acts. In this way, paying attention not only to the central part of the rule of law - the disposition, but also to the hypothesis and the sanction, it is possible to create conditions for the proper implementation of the law. This is especially important for legal norms, the elements of which are contained in various normative acts (or articles, sections of the law). To do this, when solving any legal case, it is necessary to carefully study all those provisions of the legislation that are related to the applicable legal situation, i.e. should not be limited to the analysis of individual articles of normative acts.
Some authors distinguish in this way logical structure of the rule of law, which allows you to logically reconstruct the rules of law, if not all structural elements (hypothesis, disposition, sanction) are set out in the text of the NLA. It is expressed in the formula "if ... .. then ..... otherwise ...".
Disposition - a structural element of the rule of law, which determines the model of behavior of the subject of law, which has a legally significant character. If a hypothesis is a prerequisite for the application of an authoritative prescription, then the disposition is the core legal norm, because it contains the very rule of conduct, which entails legal consequences.
The disposition is the main regulatory part of the norm.
The dispositions of the rules of law are also very diverse and are classified on various grounds.
According to the degree of certainty of the rules of behavior fixed in them, the dispositions are divided into abstract and causal.
Casual dispositions are dispositions that list specific prescribed or prohibited actions, indicate the rights and obligations of the subjects of the implementation of the legal norm, leaving no room for any discretion on their part. The prototype of a causal disposition is a precedent - a court decision in a separate case. Norms with a causal disposition fail in technically, do not ensure the absence of gaps in the law and make it cumbersome.
Abstract dispositions are dispositions that provide for a certain type of behavior without specifying the details.
According to the method of presentation, dispositions are divided into simple, descriptive, reference and blanket.
Simple dispositions contain only the rule of behavior itself, without revealing its features, since they are quite obvious. This type of dispositions covers clear and precise prescriptions that do not allow doubts about their content and meaning.
Descriptive dispositions characterize the rule of conduct in detail, list its most important features. For example, the law characterizes theft as an illegal, secret, gratuitous seizure of another's property.
Reference dispositions, instead of describing signs of lawful or unlawful behavior, contain a reference to another norm of the same normative act, which describes the corresponding behavior. For example, when characterizing a qualified crime, the legislator refers to the signs specified in part 1 of the criminal law norm.
Blanket dispositions also do not describe the signs of an act, they establish a rule of behavior in the most general form. Explanation and concretization of the prescription are contained in other legal acts, to which the subject of the implementation of the norm is referred.
According to the legal orientation, there are: provisional-binding, binding, authorizing, recommendatory, restrictive and fixing dispositions.
Presumptive-binding dispositions - contain bilateral rules of conduct, for example, the seller and the buyer.
Binding dispositions indicate the nature of the behavior of an obligated person, for example, a debtor under a loan agreement.
Enabling dispositions - contain an indication of the type and measure of possible behavior, for example, the owner of the property.
Restrictive dispositions restrict behavior to strictly defined limits. For example, the rules labor law limit the duration of work of a minor.
Fixing dispositions fix general principles and tasks of the activities of state bodies.
Norm of law - coming from the state (directly established or sanctioned), a universally binding, formally defined rule of conduct that regulates socially significant social interactions and is provided by the coercive power of the state.
A legal norm is the primary cell of law, the initial element of its system.
signs rules of law.
1.rule of law - rule general, i.e., a behavior model. The rule of law is always not a specific indication, but a model, that is, it has a general character. It operates repeatedly and extends its effect not to a specific personified person (or persons), but to a certain category of persons, that is, to a personally unnamed circle of subjects. The general (model) nature of the norm is supported by its general obligatoriness, which is provided by the system of state-legal coercion. Thus, a legal norm is not an order for a specific person to commit certain actions. The rule of law is a model, a criterion of lawful behavior. This feature of the norm is called "normativity" to emphasize its general, model character. It is important to note the lack of personification in the rules of law, which apply to an indefinite number of situations and a large circle of people. The rule of law prescribes a certain course of action, indicates how, for what time and in what territory it is necessary for a particular subject to act. The rule of law is of a general nature, it is addressed not to specific individuals, but to all subjects - individuals and legal entities.
A characteristic feature of the rule of law is that it reflects the most important, basic, essential properties that are inevitably repeated, present in all specific legal relations arising on the basis of this rule of law. Take, for example, one of the most common relationships - buying and selling. Millions of citizens, organizations, institutions, and enterprises enter into such relationships every day to meet their immediate needs and requirements. Nevertheless, the whole variety of these legal relations of sale and purchase carried out in stores, kiosks, markets, as well as the subjects and objects of these legal relations are fully covered by several articles of the Civil Code of the Russian Federation.
2.The rule of law is a universally binding rule. The rule of law is not just descriptive judgments, but commanding orders, i.e., the requirements of due, addressed to the widest possible audience. General obligatoriness means the indispensable fulfillment by all members of society of the requirements contained in the rules of law. General obligatoriness is manifested in the fact that the norms of law are obliged to be executed by those to whom they are addressed.
3. A rule of law is a rule that comes from the state. The rule of law is formulated, authorized, established by strictly authorized subjects. Typically, these organs state power vested with legislative powers. Thus, the rules of law are created or sanctioned by the state and only by the state (or, with its consent, by some public organizations), they are also canceled, supplemented, changed. In this context, the state acts as the main "political creator of law", that is, lawmaking is the prerogative of the state, since law expresses not just the will of the people, but its state will. Thus, unlike other social norms, law is not just a social regulator of the behavior of people and their groups, but a state regulator. It is important that the state will, embodied in the rules of law, does not express the interests individual groups, clans, industries (for example, "siloviki"), but the key, priority goals are the interests of the entire population. That is, the will of the state should not be of a group, but of a general, universal character. Although in practice this is very difficult to achieve due to corruption, lobbying, conflicting interests of the elites in power in the state.
4. The rule of law is a formally defined rule. The requirement of formal certainty includes two aspects: (1) formalization - a certain procedure for the adoption, modification and cancellation of a rule of law; (2) certainty - the statement of the norm clearly, clearly, unambiguously, logically, concisely, in compliance with the rules of the Russian language and legal technique. For the implementation of a legal norm, it is necessary that each norm be adopted by the relevant state authority, in strict accordance with the law, in a special procedural order. Formal certainty is manifested in the fact that the rules of law are specific, unambiguous, clearly formulated and enshrined in writing in official documents. The uncertainty of the content of the legal norm, on the contrary, allows for the possibility of unlimited discretion in the process of law enforcement and inevitably leads to arbitrariness, and therefore to a violation of the principles of equality and the rule of law. The accuracy, specificity, unambiguity of the norm ensures legal unification, that is, uniformity in the understanding and application of law by all participants in legal relations.
4. The rule of law is a rule provided with state protection. The basis for the application of coercive measures is always misconduct. The use of state-legal mechanisms of protection against violation of legal norms is a universal characteristic of the norms of law, regardless of their sectoral affiliation. Legal norms are effective only when they are provided with effective measures of state-coercive influence - sanctions, the form of implementation of which is the form of implementation of responsibility.
5. Presumptive-binding nature legal norms means that the rule of law is a two-way rule of conduct that not only grants rights to one subject, but also imposes duties on other subjects, because it is impossible to realize a right without duty and duty without rights.
Under structure of the legal norm is understood as its internal structure, the presence in it of interconnected constituent parts. The structure of a legal norm is an ordered unity necessary elements providing its functional independence. This structure shows what parts the norm consists of and how they complement each other.
The structure of the rule of law combines three elements:
1) a hypothesis (conditions upon the occurrence of which the rule of law is subject to application),
2) disposition (the actual rule of conduct established by the rule of law)
3) sanction (negative legal consequences that should occur in case of violation of the disposition of the legal norm).
For more information about the elements of the norm, see question No. 65.
The unity of all three elements forms the rule of law. The absence of any of the elements means the absence of the legal norm itself. At the same time, it should be taken into account that the rule of law and the legal text
23.Natural legal theory of the origin of the state and law. Difference from other theories of the origin of the state and law .
The main theories of the origin of the state - theological, patriarchal, contractual, coercive, organic, materialistic, psychological, patrimonial and irrigation - focus on any one particular dominant mode of emergence of statehood.
The authors of the natural law theory of the origin of the state and law are G. Grotsia, T. Hobbes, J. Locke, J.-J. Rousseau, P. Holbach. Supported in Russia A.N. Radishchev. Separate provisions of this theory developed as early as the 5th-4th centuries. BC e. sophists of ancient Greece. “People gathered here! one of them addressed his interlocutors. - I believe that you are all relatives here, relatives and fellow citizens by nature, and not by law: after all, like is related to kindred by nature. The law, ruling over people, forces them to do many things that are contrary to nature.
The essence of the theory. The basis of the theory is the position that the state is preceded by the natural state of man. True, the living conditions of people and the nature of human relationships seemed ambiguous to thinkers.
So, for example, T. Hobbes thought about people very pessimistically and believed that they were characterized by rivalry (the desire for profit), distrust (the desire for security), love of glory (ambition). These passions make people enemies: "man is a wolf to man." Therefore, in the state of nature, where there is no power to keep people in fear, they are in a "state of war of all against all."
J. Locke thought much better about humanity. In the state of nature, he believed, everyone is equal and free, they have property (with the advent of money, it becomes unequal); the state of nature is basically a state of peace and benevolence. The law of nature prescribes peace and security to people. However, any law needs guarantees, for if no one has the power to protect it, curbing the violators, it will not be enforced and will be useless. The same applies to natural rights of people. Natural rights, according to Locke, are provided by the punishment of violators of the law to the extent that it can prevent its violation. In the state of nature, these guarantees are not sufficiently reliable, for the indiscriminate use by each of his power to punish the transgressor of the law of nature made the punishment either excessively severe or excessively lenient. In addition, disputes often occurred in the state of nature over the understanding and interpretation of the specific content of natural laws, for "the law of nature is not a written law and cannot be found anywhere except in the minds of people." In addition, Locke defined the state of nature not as the state of society as a whole, but the state of specific empirical subjects. The insufficiency of the non-political form of existence of subjects dictates the need to create institutions of state coercion.
J.-J. Rousseau, on the contrary, painted the past of mankind as a "golden age". According to Rousseau's description, at first people lived like animals, and they did not have anything public (speech, property, morality, etc.). They were equal. But as the skills and knowledge of a person, the tools of his labor, social ties developed. The period of exit from the state of savagery, when a person becomes public, continuing to remain free, seemed to Rousseau "the happiest era." However, he considers the further development of civilization a retreat, as social inequality appears and grows.
In the opinion of all these thinkers, people were forced to conclude an agreement of all with all for the sake of observing the law and the common good. They mutually agreed to give up the freedom to do everything for self-preservation. People gave up some of their rights in the name of peace and stability. Restricting themselves in their rights, they imposed a ban on doing what is harmful to life. Thus, an agreement was concluded between all and all, allowing peace to be established. Let's call it primary contract or contract-association . D. Diderot, being a supporter of the contract theory, explains the essence of this social contract in this way: “People quickly realized that if they continue to enjoy their freedom, their independence and unrestrainedly indulge in their passions, then the position of each individual person will become more unhappy than if he lived separately; they realized that each person needs to give up part of his natural independence and submit to the will, which would represent the will of the whole society and would be, so to speak, the common center and point of unity of all wills and all their forces.
But to whom did people give part of their rights?
Refusing to be the guarantor of their natural rights and laws, people transferred this part of their rights state, which now has the right to make laws, equipped with sanctions, and to use coercive measures to implement these laws, as well as to manage relations with other states. Otherwise, they entered into an agreement with the public authorities. The social contract between the rulers and the ruled will be conditionally called secondary contract or subordination contract .
However, A.N. Radishchev, state power belongs to the people, it is only transferred monarch and must be under the control of the people. People, entering the state, only limit, and do not at all lose their natural freedom, which belongs to them from birth. The state, created to guarantee natural rights (liberty, equality, property) and laws (peace and security), cannot encroach on these rights, it must be organized so that natural rights are reliably guaranteed. The main danger to natural rights stems from the privileges of bearers. powers of authority. Hence A.N. Radishchev following J.-J. Rousseau also deduced the right of the people to revolt and the revolutionary overthrow of the monarch, if he allows abuse of power and arbitrariness.
Thus, the state, according to natural law theory, is a product of the rational will of the people, a human institution or even an invention.
How did people make a social contract?
The social contract was conceived by supporters of the contract theory not as historical fact signing of any specific document, which formed the basis for the emergence of the state, but as a state of society, when people voluntarily united into a state-organizational form by tacitly recognizing the need to establish some kind of single center uniting all. According to Locke, the social contract is a constantly renewed process of transition from the state of nature to the legal state, which happens to each citizen individually, and not all at once together. This ensures, as it were, the continuity of the social contract, testifies that its participants are not only our distant ancestors, but also all people who lived, are living and those who will be born in the future. That is why, if the terms of the social contract are violated, then people can revise this contract.
Theory evaluation. The contract theory is a creation of the mind of prominent thinkers who lived in different time. In total, the period of creation of contractual theory is about 200 years. And, of course, she, having absorbed all the achievements of the collective mind of that period, should be appreciated. The first undoubted positive aspect of this theory is that its authors noted one of the characteristic human traits: fear and a sense of self-preservation are inherent in it. This is what pushes him to unite, to reach compromises with other people, contributes to the desire to give up something in order to feel calm and confident.
The contract theory is democratic in nature, since it proceeds from the fact that a person is valuable in himself, and therefore has rights and freedoms from birth. Rights and freedoms are so important to him that he must fight for them until he is overthrown. public authority, abusing the trust of the people who believed her and transferred part of their rights.
The theory of the social contract was created step by step and eventually undermined the feudal foundations. Gradually, an understanding arose that people themselves, and not a monarch or a feudal lord, should control their own destiny, because they are equal from the moment of birth and each of them is valuable to society.
It is impossible not to note one more advantage of the contract theory: it broke with the religious idea of the origin of the state and state power. True, at first, before its creation, it took a breakthrough in the field of natural science, which went to mankind very hard. Let us recall that Giordano Bruno was burned at the fire of the Inquisition precisely for creating a new picture of the vision of the world, where there was no place for God. On the one hand, it was easier for humanists to follow in the footsteps of natural scientists, and on the other hand, it was more difficult, since it was impossible to verify their ideas in practice. And yet, theological doctrine from the XVI century. gradually began to give way to the secular. A great contribution in this regard was made by the authors of the contractual theory of the origin of the state.
And, finally, the merit of the social contract theory lies in the fact that it was based on social practice, and was not speculative. It's about about the agreements that took place in history, concluded between the population of individual feudal cities and the princes who were invited to exercise power. These agreements stipulated their material support, which was provided in exchange for the management of the city, for the protection of the city. Although this social practice was not of a comprehensive nature, it gave thinkers food for thought. In the future, social practice expanded and became a clear confirmation of the contract theory. This refers to the formation of a state on the American continent (USA), as well as the adoption, first in the USA, and then in other countries, of constitutions that, in essence, represent such a social contract between the population and public authorities.
However, for all the attractiveness of the contractual theory, one cannot help but see the shortcomings inherent in it.
1. Some provisions of the contract theory are controversial. So, in particular, Hobbes and Locke argue that a person initially (in the “state of nature”) feels the right to freedom and property and wants them to be protected from encroachment, and at the same time is inclined to encroach on the freedom and property of others. . The result is a struggle of all against all, ultimately anarchy and chaos. Anarchy and chaos do not arise even in animals in which the psyche is developed to an incomparably lesser degree. Hierarchical pyramids emerge. The presence of governing bodies in primitive society speaks precisely of the existence of such a hierarchical pyramid. It is preserved, but only in a different form and with the formation of the state. Thus, the individualistic understanding of society, where the individual dominates everything, does not correspond to reality. Primitive society also had its own order, the basis of which was collectivist consciousness.
Hobbes' thesis that selfishness is the starting point of humanity is false. If you think about it, then it can be recognized as an echo of Darwin's theory of natural selection. In society, everything is somewhat different than in the animal world: if only biological laws act in the animal world, then in society there are also social norms, which have a moderating value and neutralize natural selection. Even in the earliest stages of human life, we can find elements of altruism: obedience to religious traditions, self-denial. And if we remember how much a person obeyed traditions, customs, beliefs, then everything in the life of an ancient person will seem to us altruism, although this, of course, is an exaggeration.
2. Supporters of the contract theory, correctly paying attention to the rights and freedoms of the individual, considered a person as if he existed on his own. But there was no man in nature wandering alone in the wide world! Man has always existed only in social structures, and was inseparable from them. These were families, communities, settlements, tribes, unions of tribes, etc. Man is a social being, and he has been such from the moment of his birth. Exactly these social groups are the real subjects of the historical process.
3. The desire to be free is inherent in man. But what is meant by freedom? If “freedom” is the ability to do what you want, not to depend on anyone and not to obey anyone, and to have everything you want, then such freedom can be achieved only by occupying the top of the hierarchical pyramid. If freedom is a non-participation in hierarchical clashes, then few people want to live in accordance with it. After all, it assumes that a person is not only obeys no one, but also subjugates no one yourself. This means that it is better for him not to have a home, property, family and children, because, on the one hand, they need to be protected (but these are conflicts, skirmishes, and there is no desire to participate in them!), And, on the other hand, they themselves limit their own freedom. So it turns out that this is some kind of hippie freedom. So is man really free from birth?
4. Supporters of the contractual theory represent the process of creating a state as a conscious creation of man. Is it so? The human mind was weak and could not grasp all connections and mediations. This time. A contract is otherwise an agreement. But consent can only be reached by highly developed people who have called for this all the power of their intellect and are able to understand that one cannot be guided only by one's own interests, but one must also take into account the interests of other people with whom one has to interact. This is two. So that all individuals who are completely different by nature and perform different types of activities in society (agriculturists, cattle breeders, merchants, artisans, military leaders, etc.) come to an agreement on the basis of social organization, it is necessary that each person come out of his social role and all as one played the same role: the role government people and organizers. But this is impossible to imagine even theoretically.
5. In order to consciously create something, you need to have at least some idea about it. But after all, there was no experience of state-legal life, then, could people consciously create such a mechanism as the state? Maybe they were helped by intuition, and not awareness?
6. If we assume that the social contract is nevertheless concluded by people, then it turns out that it was not of a legal nature, since at the time of its conclusion the state itself did not exist. However, only the state can guarantee, secure the agreement and give the treaty a legal character.
7. If, as supporters of the contract theory argue, the state is created by the will of the people, then, probably, by their will it can be destroyed? In this case, it remains unclear why, once having arisen, the state does not disappear anywhere. Perhaps its transformation, modification, but not disappearance. The separation of part of the state is also an absolutely incredible event. Even attempts at such a separation were suppressed in the harshest way and often ended in blood. And only recently, before the eyes of the astonished world community, accustomed to the forceful suppression of such plans, peaceful methods of separating (or separating part of) states began to be used, for example, the division of Czechoslovakia into two states: the Czech Republic and Slovakia.
And the last. Some of the authors of the contract theory, in particular Rousseau, allow the violent overthrow of rulers who abuse the power transferred to them by the people, and justify the right to revolution. From the history of our country, whose past is so rich in "revolutionary traditions", we know that the revolution does not lead to anything good. It's always a regression. As a result of the revolution, chaos and anarchy arise that did not exist even in primitive society.
Thus, with all its merits, the contract theory is not able to give a complete picture of the process of the origin of the state.
24. Acts of application of law: concept, types of requirements for them, difference from regulatory legal acts .
The application of law is the activity of the competent authorities in the implementation of legal norms by issuing individually specific prescriptions. The publication of a law enforcement act is the final stage of all law enforcement activities.
The application of law is accompanied by the issuance of an individual law enforcement act emanating from the subject of law enforcement. It has text that is drafted in accordance with the requirements for the use of legal terminology, clear legal structures. Over time, typified, standard forms of acts-documents are developed and consolidated in normative acts and in the habits of practice, which streamline legal work, bring into it the necessary certainty, legal and documentary rigor. An act of law enforcement is a variation of the concept of "act of management" and is used both to characterize the action of the relevant body and the form of expression of this action. Moreover, in the field of management, such a form can be both relevant documents and oral individually-specific orders - the result of law enforcement activities.
Act of application of law – official declaration of will of an authorized state body or official, aimed at individual legal regulation public relations . These acts are the result of law enforcement activities. They fix the decision made on the case, give it official meaning and domineering character.
The act of applying the law ultimately completes the process of law enforcement. The law enforcement act is a form of expression of the result of the interaction of the subjects of the law enforcement relationship. In addition, law enforcement acts as legal facts changing the legal status of subjects of legal relations.
Law enforcement acts are extremely diverse. They can act in the form of decrees, orders, commands, sentences, judgments, instructions, orders and other acts.
Law enforcement acts classified on a branch basis into operational-search, arbitration-legal, customs, tax, administrative-legal and others; according to the subject of publication for judicial, executive-administrative, prosecutorial, etc.; on the main and auxiliary; on a single and lasting action; on regulatory and protective; into simple and complex; to those adopted unilaterally and collectively. Other classifications are also possible.
Forms of law enforcement acts:
1. Written documentary;
2.Oral;
3.Conclusive(gestures, signals, movements, other signs expressing the will of an authorized subject).
There are several parts in the structure of a written act: introductory containing the required details; descriptive stating the actual circumstances of the case (plot); motivational, where justification is given decision; resolutive- decision on the case, the so-called. “ legal qualification". Among law enforcement acts, the most complex in structure and content are court decisions.
Signs of a law enforcement act:
1.Legal character. Law enforcement acts are issued on the basis of legal norms and must comply with them. Moreover, the act must correspond not only to the letter (content), but also to the spirit (meaning) of the law. Only in this case will he meet the requirement of justice.
2.real character. In a law enforcement act, a managerial decision is clothed in an official form. Thus, the imperious will of the competent subject is objectified in external environment, takes on outwardly expressed “shapes”. This does not necessarily mean the written (documentary) execution of acts, they can have both oral and implicit forms. We are talking about the fact that a law enforcement act is not just intentions, ideas, considerations of an imperious subject, but its clearly expressed outward will.
3.State-imperious character. Law enforcement acts are issued on behalf of the state by authorized state bodies and officials within their competence. They implement the tasks and functions of public administration. Therefore, they contain prescriptions binding on addressees. The state controls the execution of the law enforcement act, applying, if necessary, coercive measures. On the other hand, there is the possibility of appealing (protesting) law enforcement acts to a court or a higher state body.
4.Individual legal character. Law enforcement acts contain specific instructions designed for a single application in a specific, actual situation. They are always addressed to specific recipients and are limited to a single application. This is what distinguishes them from laws and regulations.
5.Formalized character. We are talking about strict observance of the prescribed stages and procedures for the preparation, examination, and issuance of law enforcement acts. Each act is issued in a certain form, has an appropriate name and mandatory details.
6.Creative, grounded, expedient character . The law enforcement act should express the optimal variant of managerial influence, be based on a comprehensive study actual circumstances, their objective and unbiased assessment. To do this, the power subject is endowed with a certain freedom in the sphere of making managerial decisions. The main requirement is a combination of expediency and legality of the act, where legality has unconditional priority.
Acts of application of law have common features with normative legal acts: a) they are written acts-documents; b) come from the state; c) have legal force(generate legal consequences, protected by the state). At the same time, they differ significantly: if regulations contain state-power orders of a general nature, then the content of law enforcement acts are individual, concretized both by subjects and by their rights and obligations, power orders.
Law enforcement acts implement the function individual legal regulation, used as a means operational management. They are always a kind of legal facts that entail legal consequences. The law enforcement act is aimed at the emergence, change, termination of legal relations.
Some documents are official, legal in nature, but are not law enforcement, since they do not directly express the state-imperious will, do not contain management decision, do not give rise to legal relations. These are various kinds of certificates, certificates, diplomas, licenses. AT this case, the law enforcement decision will be the previous and properly executed decision on the promotion of a diploma, the issuance of a certificate, license or certificate.
25. Concept and signs of law. Basic approaches to the concept of law .
Right - it is a system of generally binding, formally defined rules of a general nature (norms) established or sanctioned by the state, provided with state protection. This definition was developed by the so-called. "normative" school of law and is considered traditional in domestic jurisprudence.
signs of law.
1.normativity. Power orders coming from the state can be divided into two groups - individual legal and normative. The former are specific instructions, the latter general rules. Law is precisely a system of norms, that is, not specific instructions - to whom, what and how to do, but the most general, typical behavior patterns. That is why legal norms are often called samples, standards, criteria, the scale of lawful behavior, in accordance with which the behavior of each person who finds himself in a normatively regulated situation is built. The normativity of law is due to the typicality, homogeneity, mass character, repetition of individual social situations, phenomena, and interactions. Semper quasi hoc legibus inesse credi opportet, ut ad eas quod iudicio populi receptae sunt (translated from Latin) - laws are characterized by the fact that they apply to persons and to deeds that in the future will be similar to the present (Tertullian).
Legal norms do not regulate any particular case, but a wide range of homogeneous circumstances, social relations, extending their regulatory effect to all cases of this kind. The rule of law shows how one should behave in one or another normatively described situation, what behavior is lawful, what can, should or cannot be done in a certain social interaction regulated by law. Thus, in contrast to individual legal prescriptions, norms are universal models lawful behavior of a person.
Addressees regulations not specific, listed by name subjects, but homogeneous categories of persons - military personnel, pensioners, foreigners, accused and victims, joint-stock companies, organs local government etc. Thus law governs behavior. personally indefinite circle persons acting continuously(permanently) up to the repeal or modification of the relevant legal regulation. At the same time, the effect of the norm is not one-time; it does not lose force after a single implementation, continuing to further regulate the behavior of persons who find themselves in the sphere of its action.
2.obligatory. Non-legal social norms are local in nature, locking themselves in a certain community of people. Law governs behavior. each person in a statutory situation. No one falls outside the scope of the law. All subjects, without exception, must comply legal requirements. The right bears general character, extending its effect to the entire territory of the country, to its entire population. At the same time, legal norms are binding on everyone, including the state. Sometimes the rules of law govern a narrow, limited range of social relations or subjects, they operate for a strictly defined period of time; but this is rather an exception, since right is originally intended for an indefinite and universal action, binding on everyone and everyone.
Imperative, binding law does not depend on the discretion or consent of individuals to obey legal effect. “The rule of law is a rule of conduct, according to which this or that person (group of persons) must act in a certain direction, regardless of whether he wants to behave in this way or not” (G. Kelsen). “The conditions of social life require that certain prescriptions be fulfilled at all costs, no matter whether they correspond or not to the desires and opinions of individuals” (P. Novgorodtsev). In addition, law has unconditional supremacy in the system of social norms. In case of conflict with corporate rules, morality, religion or customs, it is the legal norms that apply.
The obligatory nature of law creates the basis for the formal legal equality of subjects before the law and the court, for the elimination of any discrimination. Right in its essence is the same “rules of the game” for all. As a result of this, in public life elements of justice, unity, equality, fundamental sameness are introduced.
3.Formalization. Law is characterized by documentary fixation of legal norms in certain sources adopted according to the established procedure. Legal norms are formally enshrined in laws, decrees, resolutions and other legal forms containing mandatory details (name, numbering, date, signature of an authorized person, etc.). From ancient times, legal regulations were engraved on the walls of temples, on granite pillars, and were repeatedly read out in the squares.
Rules of law are not just ideas, thoughts, intentions, forms of public consciousness; they are always outwardly expressed (objectified) and fixed materially. At the same time, the norms are not simply objectified outside, they must be adopted on the basis of certain procedure, approved and signed by competent officials, published. Thus, the right is stated in a certain form, which is unacceptable to violate. The adoption of sources of law is carried out through officially established and strictly mandatory procedures (law-making process). Procedural (procedural) aspects in jurisprudence are of great importance.
An unpublished law is not applicable. Non obligat lex nisi promulgata (translated from Latin) - an unpublished law does not oblige. That is, a norm that is not brought to general knowledge does not give rise to legal consequences. Thus, law is characterized by general accessibility, public perception.
4.Certainty. Legal norms are distinguished by a special legal language, a special legal technique. First of all, we are talking about the clarity, clarity, unambiguity of the presentation of the normative material. The law must accurately fix the requirements for human behavior, the scope and conditions of possible, proper and prohibited behavior, describe in detail the possible or required options for lawful actions, the consequences of their violation. At the same time, legem brevem esse opportet (translated from Latin) - the law should be short.
In addition, the language of the law must be accessible to everyone, understandable to everyone, designed not for a narrow specialist, but for the “average” American, German, Russian. Leges intellegi ab omnibus debent (translated from Latin) - laws should be clear to everyone.
Accuracy, specificity, unambiguity of the norm provides legal unification, that is, a uniform understanding and application of law by all participants in legal relations. The uncertainty of the content of the legal norm, on the contrary, allows for the possibility of unlimited discretion in the process of exercising the right, which leads to disagreements, arbitrariness, and legal conflicts. “If every individual must obey the law, if he must adapt his behavior to his requirements, then it is obvious that the first condition for an orderly life is the certainty of these requirements. Any ambiguity contradicts the very concept of the rule of law and puts a person in a very difficult position: it is not known what to do and what to adapt to ... An individual, placed face to face with society, the state, has the right to demand that he be exactly told by this latter what they want from him and what limits are placed on it. Ubi jus incertum, ibi nullum (translated from Latin) - when the law is indefinite, it does not exist. The certainty of law provides a uniform for all, stable legal order in society.
5.state nature. State and law are inextricably linked, interact, mutually condition each other. There are many different social norms in the society. But only law comes directly from the state. Thus, the law is given an official, public character. Rules of law are not formed spontaneously, but as a result of purposeful law-making activities, which is an attribute of the state.
Rules of law are always established or sanctioned by the state. All government bodies publish within their competence normative acts. Some state bodies, for example, representative ones, specialize in the implementation of the rule-making function.
The state reveals the economic, political, social claims of certain classes, groups, sections of the population, and then forms and elevates into law a certain agreed will of society. Thus, the general, integrated will of the population is expressed in law. At the same time, it should be remembered that law and legislation are not identical concepts. Only a law that corresponds to democratic legal ideas, principles, values, inalienable rights and freedoms of a person is legal.
6.State protection. This sign follows from the general obligatory nature of law and complements it. While moral, corporate, customary, religious and other social norms are supported exclusively by public sanctions, the right is protected and guaranteed by the state. If necessary, law and order is provided by state coercion, a kind of “legalized violence”. In case of violation of legal norms, voluntary non-fulfillment legal obligations and prohibitions, state sanctions are applied. Thus, the state controls the observance of the law by the participants in legal relations, suppresses offenses, attracts violators to legal responsibility. Of particular importance here is judiciary that resolves legal conflicts and guarantees everyone the protection of their violated rights and freedoms.
7.Consistency. Law is not a random collection, but a coherent, integral system of norms - an organized set of structural elements, interconnected and interacting in a certain way. Of course, this system does not exclude possible collisions. But in general, law has internal unity, structure, consistency.
Historic School of Law(Hugo, Puchta, Savigny). Law is considered as a product of the national spirit, national self-consciousness. Like culture, traditions, language, law develops gradually in the process of historical development folk spirit. The defining source here is customary law. “Law exists in the general spirit of the people and, therefore, in the general will, which is to that extent also the will of each individual” (Savigny). The task of the legislator is to establish and clothe in normative prescriptions those ideas, rules, customs that have existed in the depths of the national consciousness since ancient times. At the same time, national law is always specific and cannot be accepted by other peoples.
Normativist School of Law(D. Austin, K. Bergbom, P. Laband, G. Kelsen, P. Novgorodtsev, G. Shershenevich). Traditionally the dominant direction in jurisprudence. Law is considered as a system of norms, that is, established and protected by the state, generally binding, formally defined rules of a general nature that regulate the behavior of participants in public relations. “Law is the totality of coercive norms operating in the state; the state is the only source of law” (R. Iering). Thus, the right is actually identified with the current legislation. The formation of law is the prerogative of the state, any participation in lawmaking by non-state actors is denied. The classical normative doctrine considers law “in its pure form”, without its connection with any non-legal phenomena - politics, morality, economics, and the culture of society.
Marxist school of law. It is an extreme expression of normativism. The origin of law is associated with the division of society into classes, the emergence private property and class struggle. Law is completely determined by the economic level (basis) of the development of society. The class nature of law is absolutized, which, according to Marxists, always expresses the will and interests of the economically dominant class, that is, the minority. This will is imposed on the rest of the population. Such a conclusion is extremely negative, since law is perceived as a necessary evil, an instrument of domination, violence, and suppression. Law is considered as a phenomenon derived from the state, and therefore not independent, an auxiliary means of state administration. Marxism substantiated the historically transient role of the state and law, which, with the transition of society to the highest - the communist stage of development, will disappear and give way to public self-government.
Psychological theory of law(L. Petrazhytsky, Tarde, Ross, Olivercon, Reisner). Representatives of this theory believe that, first of all, the psyche of people determines the development and qualitative state of law. This right is always subjective, exists only in the individual and public consciousness. Law is people's ideas about it, legal emotions, “experiences legal nature". (L.I. Petrazhytsky). Since each person has his own idea of legislation, there are many individual legal systems. Thus, law is actually identified with legal consciousness. Rules of law are not legislation as such, but the result of a person's legal understanding of the current legislation.
Sociological theory of law(E. Erlich, R. Pound, L. Dugi, Llewellyn). Sometimes referred to as "sociological jurisprudence". The process of functioning and implementation of legislation is put at the forefront. That is law enforcement practice. According to this theory, law is, first of all, not a system of norms, but “a set of legal relations (legal order)” (S. Muromtsev). Legislation itself is still “dead”, “bookish” law; the main thing is the so-called. “effective”, “living law” (law in action), that is, the implementation of legal norms in practice. A law that is not applied cannot be called effective law. This is still a potential right. Legal relations always precede positive law, which only consolidates already established social relations. “Law is primarily certain order in society,” R. Kh. Livshits notes. In addition to legislation, sources of law include judicial and administrative acts, contracts and agreements, corporate norms, and customs. Supporters of the sociological direction attach great importance to public self-regulation, the search for a social compromise, and the legal activity of participants in legal relations. The initial thesis is the non-recognition of the state's monopoly on lawmaking; substantiates the presence in society of many social associations, each of which creates legal norms. Thus, legal and corporate norms are identified.
natural law theory(Ch. Montesquieu, T. Hobbes, J. Locke, J. J. Rousseau, later Stammler, Fuller, Kaufman). He distinguishes between two systems of law - natural and positive. Positive (or objective) law is current legislature, formed or sanctioned by the state. Natural law follows from the very nature of man and includes the basic, inalienable rights and freedoms that belong to every person from birth. These include freedom, security, human dignity, property, equality, resistance to oppression, the pursuit of happiness, and others. These values are universal, eternal in nature. The task of the legislator is to discover and express these natural law rights, ideas and principles in normative prescriptions. Legislation contrary to them is unjust, illegal. The purpose of the state is the implementation and protection of natural human rights and freedoms.
"Norms and branches of law" - Customs. Hypothesis. The structure of the branch of law. Refers to the benefit of individuals. Right. Lesson plan. Tax. Administrative. material and procedural law 3.Public and private law. Law system. Prosecutor's supervision. Institute of pledge (civil law). Constitutional law(municipal, electoral, parliamentary).
"Norms of nutrition" - Moderate nutrition. The energy value of 1g is equal to 9 kcal Value, features and sources of fats. Diversity and balance in nutrition. Otherwise, you need to consume seaweed (dry, in the form of a salad). The recommended intake of vitamin C is 100 mg. It is necessary to increase the intake of complex carbohydrates and limit the consumption of simple ones.
"Placement of elements" - For the number of choices of two elements from n data: For any natural numbers n and k where n>k, equalities are true: In combinatorics, a combination of n by k is a set of k elements selected from given n elements. Combination. Accommodation. Placement and composition. Formulas: Combinatorics.
"Social norms" - The value of social values and norms in the regulation of human life. Legal regulation social relations has its own characteristics. Classification of values. Law from sociological positions. Rules of law only regulate, but do not create social relations. Social values and norms. Values are characterized by abstractness, speculation.
"Sanitary and hygienic standards in the 1st grade" - The state of health of children: Watching a video film - 15-20 minutes; viewing presentation, videos - 15 minutes. The optimal duration of the use of TCO in a lesson in grade 1: Difficulties of subjects. Hygienic assessment of student learning in modern school. (G.N. Serdyukovsky, S.M. Grombakha). Sanitary and epidemiological rules and norms.
"Names of chemical elements" - Silver. They swirled, then flashed, Then they danced, Then they exploded, then they blazed, Then they hissed, then they sparkled. About the author. Mercury. Signs chemical elements. Goals. Designation of chemical elements by alchemists. A. Gold. D. I. Mendeleev was born in Siberia, in Tobolsk, and was the seventeenth child in a large family.