The connection between method and science - science is born from the method, science contains methods.
Each scientific position that reveals patterns is at the same time a method of knowing the world. Those. any knowledge can be considered as a method.
Classification of methods by Raw:
1) the general philosophical method. Its ubiquity is expressed in the fact that this method used in all specific sciences and at all stages, 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 specific sciences, but the scope of which is limited to solving certain cognitive problems;
3) special methods legal science. They are made up of methods, techniques that were originally 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 for the knowledge of political and legal phenomena and can only be applied within the limits of legal science. These include methods of interpretation of law, comparative legal method and some others. Common classification of methods:
1. Universal - the method of dialectical materialism is used in all sciences, at any stages, stages of scientific research. He proceeds from the 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. objectively, that the surrounding reality, the laws of its development are accessible to human knowledge, that the content of our knowledge is objectively predetermined by the existence of a real, independent of people's consciousness of the surrounding world.
2. General scientific - these are those that are used in all or many branches of science and apply to all sides, sections of the relevant science. Among them, the following methods are usually distinguished: logical, historical, system-structural, comparative, methods of specific sociological research.
3. Special = specific = private scientific. - are characteristic of specific branches of scientific knowledge, with the help of them it is possible to achieve a certain deepening of knowledge of state-legal phenomena. They enrich the general and general scientific methods, concretizing them in relation to the peculiarities of the study of political and legal reality. For example, spectral analysis in physics, investigative experiment in legal science, etc.
Method - The path of research, theory, teaching - a way to achieve a goal, solve a specific problem; the set of techniques, methods by which this subject is studied, consists only of rules, principles of knowledge. Describing the role of the correct method in scientific knowledge, F. Bacon compared it to a lamp that illuminates the way for a traveler in the dark. He said that even a lame man walking on a road outstrips one who runs without a road.
These rules and principles are not formulated arbitrarily, but on the basis of and in accordance with the objective laws of the subject of research, reflected in the concepts and categories of science. The subject of knowledge determines the methods of research.
The theoretical-conceptual apparatus can be used as an objective basis for the methods of scientific knowledge, then it realizes its methodological function.
The methodology of legal science is a set of principles, techniques, and methods of scientific activity identified by science, used to obtain true knowledge that reflects the objective reality. 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, this is a conditional philosophical outlook a system of theoretical principles, logical techniques and special research methods that are used to obtain new knowledge that objectively reflects the state-legal reality.
On the one hand, methodology is understood as a set of methods, procedures used in the process of scientific research.
On the other hand, methodology refers to the doctrine of the scientific method, principles and methods of organizing research activities.
Methodology, in the second meaning, is a general theory of the method, which was formed in connection with the realization of the need to study and develop methods of scientific research, to systematize ways to obtain new knowledge. Methodology of science - philosophical discipline - part of epistemology (theory of knowledge)
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, universal philosophical laws and categories, general and particular scientific methods, i.e. not only a system of methods but also a doctrine about them. Therefore, it cannot be reduced only to the doctrine of methods. In addition, the methodology is not reduced only to its constituent components, it has its own patterns of development - the components of methodology interact with each other, and therefore acquire properties that are different from their single existence: general theoretical concepts permeate the worldview, universal philosopher laws and categories illuminate the boundaries of applicability public and private scientific methods research. The correlation of method and methodology is like a dialectical correlation of the whole and the part, system and 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 determined by the principles of materialistic dialectics.
3. From the point of view of A.D. Gorbuzy, I.Ya. Kozachenko and 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.
Social conditions for the emergence of the methodology of scientific knowledge appeared thanks to G. Galileo. In modern times, Bacon drew attention to experience and empirical methodology, Descartes developed a rationalistic methodology. In modern methodology, these two levels are considered as components of a single methodology.
Depending on the level at which scientific research is carried out and what goals it pursues, appropriate methods of cognition are also applied. Therefore, it is advisable to divide these methods into three more groups:
1) methods of empirical research,
2) methods used both at the empirical and theoretical levels of the study;
3) methods of theoretical research.
The methods used at the empirical and theoretical levels include: abstraction, analysis and synthesis, induction and deduction, modeling, historical and logical methods of cognition.
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Under method Any science is understood as a set of techniques, rules, principles of scientific activity used to obtain true (objectively reflecting (reality) knowledge.
The rules, principles of cognition applied at any one stage of scientific cognition or for solving one cognitive task, together form a separate specific method. So, the rules used in the process of interpreting the rules of law, in their system form a method of interpreting the rules of law, the rules governing the process of obtaining general knowledge from single facts - induction.
Currently, the whole variety of methods of cognition of the state and law is usually arranged 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 higher, inaccessible to the senses, only speculatively comprehended and unchanging principles of everything that exists in the world.
Dialectics- this is the science of the universal laws of development of nature, society, man, his thinking. It requires the study of reality in the interconnection of phenomena and their constant change and development. Materialism is a philosophical direction, which proceeds from the fact that the world is material, exists objectively, i.e. outside and independently of human consciousness; matter is primary, not created by anyone and exists forever. Consciousness, thinking is a property of matter. The cognizability of the world, its regularities is affirmed.
Based on the materialistic and dialectical approaches to the study of state-legal phenomena, conclusions are drawn that:
a) the state and law are real phenomena;
b) when studying the state and law, one must take into account their constant development and variability;
c) one should take into account the diverse links between various state-legal, economic, political, cultural, national and other processes;
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 the philosophy of agnosticism. Separate theories are based on philosophy objective idealism, which explains the fact of the existence of the state and law by objective reason, something like a divine force. Another philosophical direction subjective idealism connects the existence of the state and law with human consciousness.
In the domestic legal science for a long time dominated Marxist approach to the state and law, which connected the development of state-legal phenomena exclusively with economic factors, and the very science of the theory of state and law was ideologized.
In the modern science of the theory of state and law, a generally accepted approach to methodology has not developed, science is at the stage of search. There is an opinion that the general philosophical foundation for the study of the state and law remains historical materialism, which extends dialectics to the study of state-legal phenomena, considers them in mutual connection, in movement, development, the struggle of the new with the old, etc.
General scientific methods 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, socio-cultural roots.
Logical the method belongs to the abstract-theoretical and is based on the use of such techniques as analysis and synthesis, induction and deduction. Analysis is a process of mental or actual decomposition of the whole into parts, which allows you to identify the structure of the object under study, for example, the logical structure of the rule of law with the allocation 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 signs of law, state, legal relationship, elements of the status of an individual, etc., general concepts of the most important legal phenomena are formulated.
Induction how a logical device allows, on the basis of particular knowledge, to obtain knowledge of the general, 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 device that, on the basis of general knowledge, comes to knowledge of the particular. So, on the basis of common features 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 an integral phenomenon, consisting of many other phenomena, and imparts a new quality to the entire phenomenon. The state and law are complex systemic formations, therefore, they must be studied in conjunction, this focuses on the knowledge of the studied objects as a holistic phenomenon.
Functional the method makes it possible 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 in statics, but as active phenomena. Hence the consideration of the functions of the state, law, legal consciousness, etc.
Private scientific methods represent the use of the theory of state and law of scientific achievements of technical, natural, related social sciences. The most common methods include the following:
Method of concrete sociological research 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), the study of materials from judicial and arbitration practice, public opinion about the activities of law enforcement agencies, etc.
Modeling method- one of the main methods of studying state-legal reality. It consists in the study of state-legal processes, institutions in models, i.e. by ideal reproduction of the analyzed phenomena.
Statistical method- obtaining quantitative indicators of state-legal phenomena and processes. It is most used to characterize mass phenomena that are repetitive, for example, to identify the dynamics of crime. Modern statistics allows, on the basis of quantitative data: a) to obtain indisputable evidence of the presence or absence of links between the analyzed phenomena; b) to analyze the factors influencing this phenomenon.
Method of social and legal experiment- a way to test scientific hypotheses or a project of a solution. In domestic practice, this method was used, for example, during elections in industrial districts in 1989, the establishment of so-called free zones with a preferential customs and tax regime in the Primorsky Territory, in the Kaliningrad Region, etc. This method is assessed as promising.
mathematical method- a method of operating with quantitative characteristics, one of the formalized methods for studying state-legal phenomena. It is mainly used in forensics, forensics in the study of traces of crimes, etc.
cybernetic method- this is a technique that allows, with the help of cybernetics, to learn state-legal phenomena. It comes down mainly to using 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 the system so that it functions in a predetermined way. The cybernetic method is used to develop automated systems for obtaining, processing, storing and searching for legal information, to determine the effectiveness of legal regulation, to systematically record regulatory legal acts, etc.
Synergistic method in legal science began to be applied only recently. The term "synergy" comes from the Greek word "synergos" and means the joint effect of the interaction of various systems capable of self-organization, self-regulation. Synergetics helps the study of self-regulating systems (including random ones) and processes, for example, market relations, local self-government, i.e. phenomena and processes where state intervention is limited.
Among private scientific methods, it is customary to single out legal methods proper. These include comparative legal and formal legal.
Comparative legal the method consists in comparing various state and legal systems, institutions, categories in order to identify similarities or differences between them. Even ancient thinkers argued that the truth is known in comparison. This method is used in studying the typology of states, comparing various legal systems of the world, political regimes, forms of government, state structure, etc.
Formal legal method is traditional for legal science and constitutes a necessary step in the scientific knowledge of the state and law, since it allows you to study the internal structure of the state and law, their the most important properties, classify the main features, define legal concepts and categories, establish methods for interpreting 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, universal philosophical laws and categories, general and particular scientific methods, i.e. not only a system of methods, but also a doctrine about them. In addition, methodology is not limited to its constituent components, it has its own patterns of development - the components of methodology interact with each other, and therefore acquire properties that are different from their single existence: general theoretical concepts permeate the worldview, universal philosophical laws and categories illuminate the boundaries of applicability general and private scientific research methods. The correlation of method and methodology is like a dialectical correlation of the whole and the part, system and 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 determined by the principles of materialistic 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. Change of paradigms
Methodology of legal science- this is the doctrine of how, in what ways and ways, with the help of what philosophical principles it is necessary to study state-legal phenomena, this is a system of theoretical principles, logical techniques and special research methods conditioned by the philosophical worldview, which are used to obtain new knowledge that objectively reflects the state -legal reality.
Methodology in the science of law, its formation and historical development had a number of significant features. Since its inception in the XII century. and up to the XVI-XVII centuries. the methods of formal logic were predominantly used, and the law was practically not involved in the development of its own methods of cognition. Since the 17th century the attention of scientists is beginning to attract the methods of philosophical understanding of law, which leads to the formation of such a direction of legal thought as the philosophical methodology of knowledge. In the 19th century with the advent of scientific (theoretical) jurisprudence, methodological studies acquire fundamental importance in the knowledge of law, and in the 20th century. they begin 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 a philosophical status, but are applicable in most areas of science. In the XX century. In connection with the emergence of the so-called metascientific spheres of knowledge in the methodology of law, new research tools began to be allocated. They are the principles, forms and procedures of research used by all or at least most of the modern sciences. When referring to these research tools, the theory of state and law ensures its compliance with the current level of development of scientific knowledge. Modern science, in general, is characterized by a high degree of integration, and interscientific perception of the results and methods of research is one of the mechanisms for its development, attracting the most research common funds and methods of other sciences - 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. As applied to law, the method of alternatives is the identification of contradictions between various hypotheses about state-legal phenomena. The origins of this method in the most general form are in the philosophy of Socrates: the method of disclosing contradictions was called "maieutics" (assistance in the birth of a new one). Socrates saw the task in encouraging his interlocutors to find the truth through a dispute, criticizing the interlocutor and putting forward his hypothesis of the issue under discussion. During the discussion, all answers were recognized as incorrect and rejected one after another, new answers were put forward instead of them, which, in turn, were also recognized as incorrect, etc. Socrates believed that truth could be found by the method of maieutics.
The developer of this method is 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 in the knowledge of an object to existing hypotheses about it, and then, subjecting them to criticism and thereby pushing alternatives together, to identify new knowledge about the object. “The theory is criticized from many different angles, and criticism allows you to identify those points of the theory that may be vulnerable,” he says.
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 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 the memory, in which it is stored (conserved) until as long as it is not demanded by some social signal (the need for written or electronic reproduction, the exchange of oral information, practical activities, etc.)”.
Modern law, which has extensive methodological tools, cannot pass by those theoretical developments that appeared due to such a relatively new one that developed in the second half of the 20th century. scientific direction as synergetics. Born 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 was formed as an independent scientific direction in the second half of the 20th century. The term synergetics in Greek means "joint action". Introducing 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 cooperation of specialists from different fields for its development.
The ideas offered by synergetics relate not only to individual special cases in the field of physics and chemistry, but also to worldview 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 the multivariance (nonlinearity) of possible development, and are capable of deriving 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 relation to which 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 the 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 to exactly the same state as the original one). The openness of the system indicates that it can exchange energy, matter with the outside world (do not forget that initially it was about chemical and physical processes, and in relation to society, this can be any factors that affect 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) that develop, 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 temporal criterion, the progressive, and, therefore, irreversible movement of society, and therefore of state-legal phenomena, forward 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, the system of law and the 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 a combination 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 in the state-legal sphere there are complex open systems, then in their development and functioning they will also obey the laws of self-organization.
A.B. Vengerov believes that synergetics "offers a new perspective on the relationship between necessity and chance, on the role of chance in biological and social systems." It can lead to a paradigm shift in science and claim the role of "a worldview approach that includes dialectics as a particular method." Consequently, the neglect of synergetics can lead to a lag in legal science from modern life, from a 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 synergistic approach can help take a fresh look at the state-legal reality in general, at the role and value of the state and law in the life of society.
Secondly, the use of synergetics for the implementation of the prognostic function of the theory of state and law is no less important. The limits of legal influence, the content of law and the determination of optimal options for the 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 makes it possible to overcome the limitations (and sometimes even 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 undertaken criticism will help to look at the use of traditional methods of the theory of state and law from other positions.
26. Jusnaturalism and juspositivism in the understanding of law at different stages of the development of legal science
27. Principles of historicism, consistency and objectivity in the study of state and law
The principle of historicism. All phenomena must be studied with regard to their historical development; for example, it is possible to understand the essence and specifics of the state only by tracing the various historical types of the state, thus revealing its unchanging essential characteristics and eliminating transient factors.
Scientific knowledge of social phenomena invariably presupposes the application of the principle historical approach, which requires to study the history of the emergence of social phenomena and processes, the main stages of their historical development, and consider the current state of these phenomena as a result, the result of previous development.
Due to the fact that the world is in constant development, change, scientific knowledge also has a specific historical character; they are reliable insofar as they correspond to a certain state in the development of the subject. The subsequent development of this subject means that the scientific information available about him is outdated and needs to be changed, supplemented in accordance with the changes that the object reflected by them has undergone. Taking into account this circumstance, 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 are among the universal logical requirements. There is no abstract, suitable for all time truth, it always has a concrete historical character.
The principle of systematic research. All phenomena are interconnected, therefore 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.
The principle of objectivity means that in the process of cognition it is necessary to approach the studied phenomena and objects as they exist in reality, without conjecturing and without adding to them anything that is not in reality in them. 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 relations, to be able to distinguish the thoughts and motives of politicians and lawyers from the actual direction of legislation, ultimately determined by the economic relations of society.
Such a science is also initial and fundamental for branch sciences, since the general state of legal science as a whole, the effectiveness of its impact on public life.
The connection between the theory of state and law and branch sciences is mutual, bilateral and creative. The conclusions of industry scientists and their teams enrich the theory of law, aim at resolving the most pressing problems, allow specific examples and more deeply reveal the key concepts of jurisprudence, feed the general theory with factual material. Thus, the development in the science of criminal and administrative law of the problems of crimes and administrative offenses, issues of guilt, delinquency, sectoral responsibility made it possible to render in general terms a general theory of offenses, legal liability, causes of offenses and ways to overcome them. The studies of constitutional law specialists in the field of the legislative process served as the starting point for the development of general problems of lawmaking and legislative technique.
The theory of state and law is closely connected and interacts with the 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 solve 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 assess the conclusions of such sciences, to connect them with the needs of strengthening the rule of law and raising the level of the 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 is studying, 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-legal phenomena. Thus, the methodology of legal science 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 words of the English philosopher F. Bacon are known that the method of science is like a lantern that illuminates the path of science. Only a properly developed research methodology can lead to positive results of scientific research.
Centuries-old scientific studies of the formation and development of the state and law around the world have generated numerous, sometimes directly opposite, political and legal doctrines and theories, and they are usually based on mismatched methods and techniques of study, and this was one of the reasons for their difference in content. The state and law were studied from non-coinciding and often directly opposite philosophical and methodological positions - materialism and idealism, metaphysics and dialectics.
A number of theorists associated state-legal phenomena with the will of God or the so-called objective mind, others - with the psyche of people, their emotional experiences, others - with the spirit of the people, their customs, 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 rights of the individual, were fashionable and continue to exist today. The ideas about the geographical, natural factor as the basis for the creation of the state and law, about the primacy of national, ethnic, religious characteristics of these social phenomena were also proclaimed and substantiated. Finally, the existence of a state-legal superstructure, 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 respond differently to questions about the cognizability of all social, including political and legal phenomena. If some are sure that such phenomena, being created by the human will and mind, are completely cognizable, their essence and purpose can be fully disclosed, then the philosophical ideas of agnosticism proceed from the ideas that the human mind is unable to fully comprehend the essence of these phenomena, defend the theory of the primacy of faith over reason, the idealistic "basic idea" over the free will of people.
In domestic legal science, throughout the 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 coercive nature, and the conditionality of the economic conditions of the development of society were proclaimed to be immutable truths. Other theoretical ideas were usually rejected as idealistic, not reflecting the interests of progress, the will of working people.
It is obvious that such a situation did not contribute to the development of scientific thought, did not allow the maximum use of the achievements of various theoretical directions, 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, 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 the growth of scientific knowledge, deepening 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, its features impose a certain originality on the use of theoretical principles, techniques and methods in each of them. So, it is obvious that the techniques and methods of research, for example, in the history of the state and law, differ in many respects from the techniques and methods used in criminal law. If in history the comparative method is given paramount importance, then in criminal law more statistical, concrete sociological methods should be used. In the same way, for example, there is an originality in the theoretical principles and specific methods of research 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 system communications, as well as legal aspects of the 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 single system of concepts, principles, laws and categories, philosophy acts as a worldview basis for the knowledge of all phenomena of nature and society. It is a kind of key to the study, including the state and law. Only using such dialectical categories as essence and phenomenon, content and form, cause and effect, necessity and chance, possibility and reality, one can 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 stages, stages 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. objectively, that the surrounding reality, the laws of its development are accessible to human knowledge, that the content of our knowledge is objectively predetermined by the existence of a real, independent of people's consciousness of the surrounding world. The materialistic approach determines that the state and law are not self-contained categories, independent of the surrounding world, to something invented by great thinkers and rulers, that their essence is objectively predetermined by the socio-economic structure of society, the level of its material and cultural development.
The essence of the dialectical approach to scientific research, justified by the great German philosopher G. Hegel and developed further 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, the 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 the necessary laws of human cognitive activity.
Dialectics presupposes a constant struggle between the new and the old, the obsolete and the emerging, the denial of negation as stages in the movement of the elements of nature and society (the present rejects certain elements of the past, and the germs of the future, in turn, deny the present that has not justified itself), the understanding that there is no abstract truth, it always concrete, 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 in many branches of science and apply to all aspects, sections of the relevant science. Among them, the following methods are usually distinguished: logical, historical, system-structural, comparative, methods of specific sociological research.
The logical method is based on the use of logic in the study of state-legal phenomena - the science of laws and forms of thinking. In the process of scientific research, for example, such logical techniques as analysis are used, 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 constituent parts that make up into it and elements interacting with each other (for example, the definition of a legal system consisting of separate branches). Among such techniques can also be attributed induction - obtaining generalizing knowledge based on the 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 constituent parts 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 methods of formal logic as hypothesis, comparison, abstraction, ascent from the abstract to the concrete, and vice versa, analogy, etc.
The historical method boils down to the need to study the main events in the history of a particular state, the legal system, the stages of their formation and development, taking into account the mentality of peoples, their historical traditions, cultural characteristics, religions of individual countries and regions.
The system-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 task of the researcher is to determine their number. , order of organization, communication and interaction between them. Only after this is it possible to fully and comprehensively cognize the object as a holistic formation. At the same time, each object under study is an integral element of a more general structure (superstructure) and it is necessary to study its place in the superstructure, functional and constructive relationships with others.
its elements. So, in order to study the concept and essence of law as a whole, one should initially investigate 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 is made up of a certain system of bodies that differ in their functional purpose (legislative, executive, law enforcement, etc.). In turn, the state enters as an integral part of 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 is usually understood as the search and discovery of common, special and individual features in 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, main legal families of the world, etc.) in order to establish similarities and differences between them. The legal literature separately refers to 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 area 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.
Obviously, the active use of the comparative method should not turn into a 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. With the help of this method, the selection, accumulation, processing and analysis of reliable information about the state of legality in the country, the effectiveness of the work of the legislative and executive structures of power, the practice of the 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 generalizations, materials of judicial and prosecutorial practice, questioning, testing, organizing 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 actively used mathematical and computer data processing.
Concrete sociological research is aimed at studying the social conditionality of state-legal institutions, the effectiveness of their action, revealing their interaction with other social institutions, and determining the best 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, concretizing them in relation to the peculiarities of the study of political and legal reality. Among them, the following most important types can be distinguished:
1) the method of social experiment - the organization of a practical test of the action on a specific territory or in a limited period of time of new, drafted norms, an updated regulatory system to determine the appropriateness and effectiveness of the proposed measures. It was used, for example, to test the effectiveness of the creation of a jury trial in the country, the introduction of free economic zones with preferential customs and tax regimes;
2) statistical method - system-quantitative methods of obtaining, processing, analyzing and publishing quantitative data on the state and dynamics of the development of certain state-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-legal life that are characterized by mass character, 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 the establishment of general and stable quantitative indicators, the exclusion of everything random, secondary;
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, as well as be included in the system of techniques used in the process of specific sociological studies of state-legal phenomena;
4) mathematical method is associated with the use quantitative and digital characteristics and is mainly used in forensics, in the production of various kinds of forensic and other legal examinations;
5) A number of theorists single out the so-called cybernetic method as an independent method. It basically boils down to using both the technical capabilities of cybernetics, computer technology, and its concepts - direct and feedback, optimality, etc. This method is used to develop automated systems for managing, receiving, processing, storing and searching for legal information, determining the effectiveness of legal regulation, systematic accounting of regulations, etc.<См.: Морозова Н.А. Теория государства и права. М., 2002. С. 21.>
As you can see, the methods of scientific knowledge of the 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 the aggregate, close interaction can successfully and effectively solve the theoretical problems of the 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 the state and law arose a long time ago. The replacement of primitive social formations by 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 features of the functioning of the state becomes the main theme of the entire subsequent development of political and legal thought.
The emergence of various theoretical concepts expressing an understanding of the state, law and their main institutions, as well as ideas about the relationship between law and the state, is associated with antiquity. The development of views on the state and law in the era of early class societies was based mainly on general worldview 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 building legal concepts of the “better” organization of political life passed to the medieval burghers, the ideologists of the bourgeoisie of the period of early anti-feudal revolutions, and to subsequent conductors of ideas directed against authoritarianism and totalitarianism. Their teachings on law and the political organization of power constitute the history of the theoretical and philosophical science of law (its students of law faculties study in
course in 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 predetermined 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, employees of state institutions. By decree of Peter I in 1720, it was determined that in order to obtain the necessary legal knowledge to work in state institutions, the children of the nobility (“from the gentry”) had to be trained at the College of Justice or at a school specially established for this at the office of the Governing Senate. The training was “hands-on”; about the theoretical training of future lawyers, of course, was not discussed. After passing the course of practical assimilation of the basics of office work and the “practical wisdom” of jurisprudence and having received a “patent” - a certificate of educational training, experts proceeded to the administration of state affairs. Despite the harsh measures taken to attract the nobility to study, there were few “junker colleges”, and the organization of legal education remained at the level necessary for the acquisition of only elementary legal knowledge by future officials.
The business of training lawyers-managers did not make much progress after Peter the Great either. Under Catherine II, it was noted that the "junker colleges" did not receive the necessary knowledge in "decent sciences" and the Senate School was closed. Later, under Paul I, the institution of junkers was revived at all collegiums, except for the military ones. Jurisprudence or jurisprudence were the main subjects studied in them.
Professional training of lawyers was continued by Russian universities, and the first of them
- University of Moscow.
WITH the beginning of the study of special sciences at the Faculty of Law at first in Moscow, then in other universities, legal theory was neither an independent nor a single branch of knowledge. Universities were not supposed to study the theory of law and the state as a separate discipline. Separate general theoretical problems of law were studied in the course of "moral sciences" together with logic, psychology, 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 cadres of legal scholars for professorial work at universities. The first Russian professors who taught courses in Russian legislation were mostly practical workers, and general theoretical knowledge taught by foreign professors was perceived as nothing more than “abstract formulas”, “theoretical refinements of jurists in the West”. The 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 considerable 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 the universities of Western countries and was carried out by foreign professors, did not find sufficient support, and the positions 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 state work. An obstacle to the development of a general theory of jurisprudence was the disorder of Russian legislation.
The need to single out 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 diverse legal material accumulated over the centuries required reflection, when in social psychology the ideas of law began to acquire ideological meaning.
Early 19th century marked by major state reforms, the transformation of the central government, the liberalization of the political regime as a whole. In the first decades of the XIX century. Legislative creativity as one of the state functions in terms of significance is gradually being promoted to one of the first places. State transformations 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 examined for the quality of knowledge in law by a special decree of 1809.
The introduction of general theoretical legal training, the transfer of the training of lawyers to a deep theoretical basis, has become as necessary as the practical study of legislation. Legal training and obtaining an 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 equally successfully serving in the civil service, and in the judiciary, and in the scientific field. 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 change radically.
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 Review of the System of Law, Russian State Laws, i.e. Basic Laws, State Laws 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 mainly on the development of 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 reach generalizations 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 formulation 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, like the literature on legal sciences, was poor in the works of professionals. At the same time, the need for professional training in domestic lawmaking and law enforcement was great and became even more acute over the years.
An obvious shortcoming of the Russian legislation of that time was its disunity. The number of systematized normative acts was insignificant, and the total mass of legislation was made up of decrees, orders and resolutions issued specifically for each specific case. Some of their texts contradicted each other and, moreover, were not always available. The work to streamline 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, “knowledgeable” lawyers, lawyers for Russia is. The task of bringing the legislation "in order" could not be solved in the absence of a 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 of Moscow and St. Petersburg universities from among the most prepared were sent to Berlin to receive a complete and versatile legal education, and by the second half of the 30s. 19th century Russian science of law acquired an independent school of scientists who laid the fundamental foundations of Russian theoretical legal science. P.D. Kalmykov, K.A. Nevolin, P.G. Redkin, A.G. Stanislavsky entered the history of Russian
jurisprudence, including as one of the first Russian professors who combined the teaching of practical jurisprudence, 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, among which was a new science - an encyclopedia of jurisprudence. The encyclopedia of jurisprudence served as that part of legal science, which, studying the basic concepts of law, ensured 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 the basic laws, and the theoretical aspect in the teaching of jurisprudence was inferior to the practical one. In 1859, Professor of 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 jurisprudence and 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 the expansion of the range of legal disciplines taught at universities, since 1863 the courses “Encyclopedia of Legal and Political Sciences” and “History of the Philosophy of Law” were introduced. The course of the encyclopedia of legal and political sciences (otherwise
Encyclopedia of Law) was read for all law students, regardless of their further specialization. The main task of the encyclopedia of law was a systematic presentation of jurisprudence, a general overview of the system of state legislation and the state of jurisprudence. The encyclopedia of law was supposed to provide a certain set of sufficient knowledge, basic information about the existing systems of law, and legal thinking skills.
The training of legal personnel in pre-revolutionary Russia was carried out by the law faculties of universities. The Imperial School of Jurisprudence, which trained "educated figures for the public service," and the Demidov Lyceum, after its transformation into a legal one, were equated with the law faculties of universities, 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 relied primarily on scientific training. Education at the Faculty of Law was intended to provide a general scientific education along with specific scientific training. It was believed that the future lawyer should have scientific knowledge not only in the legal field; a lawyer must be an educated and comprehensively developed person, have a good humanitarian scientific background.
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 went on as part of the teaching of the course of history and the novelistic system of law. Later, abandoning the encyclopedia of law in this form, German universities introduced the course "Introduction to the study of law." The meaning of such a course was to teach students in a compressed public form the basic legal concepts without scientific and theoretical dogmatism, without reviewing individual branches of jurisprudence in their relationship, without explaining the significance of law as a phenomenon of social culture. All this students had to understand in the process of further education, 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 forerunner of modern science of the general theory of state and law; the general theory of law began with the 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 an independent science or to attribute it to an introductory discipline that serves as an introduction to the study of law.
Some researchers, following the Western jurists, saw the task of the encyclopedia of law as an introductory course in the study of law, serving exclusively the pedagogical purposes of preparing students for the perception of legal sciences. Others overly expanded its understanding to clarify the meaning of philosophical science in general and determine the influence of philosophical and legal doctrines on the formation of the science of law. Proponents of recognition for the university-taught encyclopedia
The rights of the significance of independent science saw its main significance in the systemic representation of the total amount of knowledge of jurisprudence in the form of basic, starting concepts that can later serve as the foundation for obtaining subsequent legal knowledge. N.K. Rennenkampf, M.N. Kapustin, S.V. Pakhman and many other domestic jurists, indisputably recognizing the independent importance of the encyclopedia of law among other legal sciences, linked the study of such phenomena as systems of law and legislation, the system of legal sciences only with the science of the encyclopedia of law; only the encyclopedia of law, according to the majority of Russian legal scholars, studies one of the most important issues of jurisprudence - the impact 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 one (introduction to jurisprudence, studying 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 being found.
The significance of the encyclopedia of law (or the general theory of law) as a science and its introduction as an academic discipline into 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 took place as a certain amount of knowledge was accumulated in individual branches of law, then later the science of law - jurisprudence - became so ramified, and its branch branches so specialized, that the need to combine this huge mass of special legal knowledge brought to life the birth of a general theoretical science of law, linking together a mass of special legal knowledge.
Such a synthesizing legal knowledge, knowledge about the phenomena of legal life and became an encyclopedia of law. The main task facing this science was formulated as follows:
- definition common system knowledge of legal sciences and the system of law as a social phenomenon.
TO early 20th century general theoretical legal science acquires the main features and properties that characterize its current state. Scientific works of D.D. Grimm, 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 there was still a discussion in jurisprudence 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 for some time she 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 made suggestions about the expediency and great benefit for future jurists to return to the most fundamental problems of general theoretical legal science at the final stage of students' legal education.
The general theory of law and the state still served as a reflection of the specific historical needs, interests, goals of certain social strata, influential groups, and society as a whole. The evolution of theoretical ideas about law and the state and about their main elements then determined the progressive gains of the bourgeoisie in relation to the authoritarian state. The assertion 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 self-will of the sovereign, required a revision of the conceptual provisions of the general theory of law and the state.
Since the beginning of the XX century. there has been a process of separation of political theory from legal theory. The theory of law and the theory of the state began to be considered differentiated from political science.
Immediately after the October Revolution of 1917, the general theoretical discipline taught in Russian universities still continued to be called an 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 under the titles “Technique of Legal Thinking”, “The Doctrine of Legal Consciousness”, “Psychology of Legal Experiences”, “Introduction to the Study of the Sciences of Law and the State”, “Technique of Legal Norms”. The textbooks were published under the headings “General Doctrine of Law”, “General Theory of Law”, “Theory of Law”, “Elementary Concepts of the 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 faculties of Soviet law, faculties of law and local economy were formed in Russian universities. Then the general theory of law and the state was studied in the course "Fundamentals of the Soviet Constitution in connection with the doctrine of law and the state." A few years later, by the end of the 1920s, the “General Theory of Law”, “The General Doctrine of Law, the State and the Soviet Constitution” appeared among the higher legal disciplines. At that time, the need for the introduction of
the educational process of a discipline that gives not only the most general, introductory idea of the problems of legal science in general, but that studies the legal form and essence of law and its relationship with the political institutions of the state<Там же. С. 142.>. During these years, the “revolutionary” theories of law and the state received the greatest development, explaining, among other things, the questions of the relationship between the “right of the proletarian state” and the “right of the bourgeois” after the completion of the proletarian revolution. I.P. Razumovsky, E.B. Pashukanis, M.A. Reisner, P.I. Stuchka were prominent representatives of this trend 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 the 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. BobrischevPushkin, N.V. Us-tryalov and others.
The same period is associated with the beginning of building a comprehensive system of knowledge about law and the state and the formation of the Marxist-Leninist theory of state and law as a legal science and academic discipline. In the history of the Russian science of law, this period was associated with a materialistic, class approach to the study of law and the 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 the dialectic - the materialistic approach to the study of law has long been predominant and has had a significant impact on state of the art 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, like legal activity, can differ significantly from one type of state
To to another, from one society to another. Exploring the permanent unchanging elements of legal systems, as well as specific, defining the fundamental differences between 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. The connection that exists between law and the state, Marxism recognizes as objective, invariably showing the influence of one phenomenon on another.
Therefore, the gap between the theory of the 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 on the ideas of the need to preserve the state as a political institution for the entire time of 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 shortcoming of general theoretical legal science is 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 successfully developed in industry research. The organization of research on the general theory of law was reduced to the study of the problems of the dictatorship of the proletariat and the class struggle, Soviet construction and the state apparatus, to criticism of the bourgeois state and law, and so on.
The politicization of the Soviet science of 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 excessively active inclusion of the ideological element in jurisprudence directed the development of general theoretical legal science towards the idolization of one political and philosophical doctrine as the only true one and took the form of a total apology of its individual provisions.
V In subsequent years, certain shortcomings in the theory of law and the state as a general theoretical and academic discipline were eliminated, and the approach to studying the institutions of state and law increasingly began to dominate creativity. Books, pamphlets, collections of articles devoted to certain issues of the general theory of state and law began to appear. Works by S.N. Bratusya, S.F. Kechekyan, V.S. Komarova, A.K. Stalgevich were devoted to the substantiation of the social value of law, 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 value is retained by general theoretical legal science to this day. The theory of state and law, thus, is the basis of other legal disciplines. “This is an independent science, and not a continuation of branch legal sciences; not a theory of other sciences, but a theory of special patterns of state and law - general, basic and most significant”,
and concepts / Ans. ed. G.N. Manov. M., 1970. S. 57.>. Indeed, which of the branches of science 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 beginning of the 20s to the end of the 80s. 20th century and the science of the theory of law and the state, including dialectical materialism, the basic prerequisite for formation is economic conditionality, and one of the basic principles for the development and functioning of law is its class character. The subject of attention of the general theory of state and law was not only the political issues of the theory of revolution, the dictatorship of the proletariat, the essence of the socialist state of the whole 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 awareness and legal culture, legal relations, general theoretical issues of the legal system, criteria for dividing it into branches. In connection with the publication of collections of the current legislation of the USSR and the union republics, as well as codes of laws of the USSR and the union republics, the issues of systematization of all-union and republican legislation, such as forms of systematization, limits of codification activities, features of codification in certain branches of law, etc. .
V Most Western universities, both before and now, do not study disciplines similar to the Russian theory of state and law. General theoretical questions of jurisprudence and state studies are taught in the course of political science, in the course of studying political institutions and political systems. In the West, a different approach to the study of 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 construction”, the application of which generates “new concepts, new meanings, new problems”<См.: Сандевуар П. Введение в право. М., 1994. С. 12, 14.>, currently
NOU VPO Siberian Institute of Business and Information Technologies
Department of Theory and History of State and Law
in the discipline "History and methodology of legal science"
on the topic "The emergence of the methodology of legal science and the stages of its development"
Khanty-Mansiysk 2014
Introduction
1. Methodology of legal science as a science
The truth of legal knowledge. The problem of determining the truth of a legal theory
Stages of formation of the methodology of legal science. Methods of scientific knowledge
Conclusion
Bibliography
Introduction
The emergence of jurisprudence is directly related to the problems of human society. With the development of general human activity, people are faced with the problem of streamlining relations among themselves, giving them certainty and consistency. As a result, with the emergence of the state, laws appeared that were the main regulators of social relations, and then jurisprudence arose - the science of laws and law, designed to work for the benefit of society.
Legal science (jurisprudence - jurisprudence) is defined as a social science that studies law as a system of social norms, branches of law separately, the history of the state and law, the functioning of the state and the political system of society as a whole.
Legal science is one of the oldest social sciences. Already in the philosophy of Ancient Greece, important problems of legal science were raised, and Roman lawyers formed legal concepts and structures that have retained their significance in the modern era. Legal issues play an extremely important role in modern society, the basis of which is democracy, and in the rule of law. Legal science occupies one of the leading places among the social sciences.
The current stage in the development of legal science is marked by the fact that, as it happened more than once in the history of domestic law, an active search is underway for the most effective strategy and ways to reform it in various areas.
1. Methodology of legal science as a science
Historically, the process of formation of the methodology of legal science is due to the development of the practical activities of society, the accumulation of experience of legal life in various spheres of life and, as a result, the development of public consciousness, its legal way of thinking. The history of ideas about law, its comprehension, interpretation and knowledge has gone approximately the same way as the history of science as a system of knowledge as a whole. As a rule, the following periods are distinguished in it: philosophical-practical, theoretical-empirical and reflexive-practical. The first period covers the legal thought of antiquity, the Middle Ages and a significant part of the New Age, while the second and third periods mainly fall at the end of the 18th century. and XX century.
In domestic legal science, they increasingly began to turn to issues of legal methodology, which is dictated by the need to more accurately and objectively understand and explain the process of evolution of law and the diverse legal world, to establish links (properties) between various legal phenomena that affect community development. In other words, legal science cognizes not only the legal phenomena themselves in their development (dialectics), but the very methods that allow one to penetrate deep into the legal and non-legal phenomena of the world around.
As the domestic legal theorist L.I. Spiridonov, at a certain stage, the methodology of legal knowledge stands out as an independent phenomenon and becomes a separate phenomenon in the study of the theory of state and law. In other words, it is required to show how and why the empirical study of individual manifestations of law is replaced by the need for a theoretical and generalized (philosophical) understanding of the unity of various aspects of legal reality, which allows developing a system of techniques and methods (categories and concepts) for understanding all legal phenomena from the position systemic, i.e. universal methodological view.
Among theorists of state and law, there are many different approaches to the interpretation of methodology in general and the methodology of the theory of state and law in particular. There are a number of levels of methodology in general and in the theory of state and law (these are philosophical, general scientific and concrete scientific levels).
Objectively speaking, the formation of legal methodology in the current period is accompanied by numerous conceptual difficulties and contradictions, primarily of an ideological nature: seemingly previously unshakable postulates are collapsing and on their basis many new provisions are born, some of which are introduced into legal consciousness in a short time, and then die off. . All this, first of all, is due to dynamic changes in the entire legal reality of modern society.
At the moment, more and more new methods and approaches of scientific knowledge are emerging, which are used in the knowledge of political and legal processes and phenomena. These include such methods and approaches as: active-procedural, information-communicative, structural-functional, system-elemental, normative-institutional, cultural-historical, civilizational, integrative aspect, cybernetic, etc.
Meanwhile, despite the emergence of many new approaches, according to leading theorists (V.V. Lazarev, D.A. Kerimov, G.V. Maltsev, V.S. Nersesyants, V.M. Syrykh, A.V. Polyakov , V. N. Protasova, V. N. Sinyukova, etc.) methodological problems in the field of knowledge of law and legal reality are developed very poorly, and in some areas are even outdated and irrelevant.
Unfortunately, all these circumstances do not allow lawyers to develop a single, objectively verified and coherent system of scientific methods of cognition, which, of course, does not contribute to the vigorous development of legal science and the solution of practical problems of jurisprudence. For example, D.A. Kerimov believes that the methodology of law is nothing more than a general scientific phenomenon that combines the entire set of principles, means and methods of cognition (worldview, philosophical methods of cognition and teachings about them, general and particular scientific concepts and methods) developed by all social sciences, in including a complex of legal sciences, and applied in the process of knowing the specifics of legal reality, its practical transformation.
According to V.N. Protasov, the methodology (system of methods) of the theory of law and legal science as a whole is based on philosophy, the laws and categories of which are universal, universal and apply to all phenomena of the world around us, including law and the state;
V.S. Nersesyants understands the legal method as the path of legal knowledge - this is the path leading from object to subject, from primary (sensory, empirical) knowledge about law and the state to theoretical, scientific-legal (conceptual-legal) knowledge about these objects. legal method as a path of knowledge - it is an endless path of deepening and developing knowledge about law and the state, an ongoing movement from already accumulated knowledge about these objects to its enrichment and development, from the empirical level of knowledge to the theoretical level, from the achieved level of theory to more high level, from the already established concept of law to a new, theoretically more meaningful and rich concept;
V.M. Syrykh believes that the methodology of law, being part of the theory of law or an independent scientific discipline, contains knowledge about:
· what techniques, methods of scientific knowledge should be used in the knowledge of the subject of the general theory of law; · what methods, methods of cognition should be carried out this or that research procedure; · what is the content of specific techniques, methods used for the knowledge of law, its laws; · how methods are interconnected in the process of cognition, movement to new knowledge in the process of ascent from the concrete to the abstract and vice versa. Such a diversity of ideas about the methodology of legal science is due to the versatility and complexity of not only the phenomenon of “methodology”, but also the very phenomenon of “law”, which is explored with the help of certain ways of thinking. The problems of the methodology of cognition of law require a thorough and constant research from a variety of directions in view of the conceptual importance of the means of cognizing legal reality: the result of cognition depends on which method of cognition. The famous Soviet theoretical physicist L. Landau said that "the method is more important than the scientific discovery itself, because it allows you to make new discoveries." The methodological problems of the theory of law and the state in their deep (fundamental) basis are connected precisely with the problem of legal understanding - what is law as a phenomenon. Without resolving the issue of the methodology of cognition as a means of studying legal reality, it is impossible to approach the problem of legal understanding. And vice versa. This circumstance, in turn, is due to the fact: what legal doctrine currently dominates in science, public consciousness and public policy - legal monism, when the state is recognized as the main source of the formation of law or legal pluralism, when society, its most diverse institutions create law on a par with by the state, i.e., they form the area of manifestation of law and the boundaries of legal reality (of all legal phenomena) of the diverse legal life of people. Legal methodology as an integral part of the theoretical science of law deals with the development of methods of legal knowledge. Recent works in this area show that without a thorough study of the methods of scientific knowledge, there cannot be a full-fledged scientific explanation of law and legal reality as the most complex phenomena of reality. Meanwhile, until now, there are different views of jurists on these issues, arising from different worldview positions. Thus, the methodology of legal science is a general scientific phenomenon (for all legal sciences), covering the entire set (system) of principles, means and methods of cognition (worldview, philosophical methods of cognition and teachings about them, general and particular scientific concepts and methods), developed all sciences, including the system of legal sciences, and applied in the process of learning the specifics of state-legal reality, its improvement. It is customary to subdivide the methods of legal science into four levels: philosophical (ideological), general scientific (for all sciences), particular scientific (for some sciences) and special (for a separate science). These methods make it possible to understand state-legal phenomena and processes, their form, content, functions, essence and various manifestations. For example, philosophical methods reflect people's views on the legal existence of a person and society in the context of jurisprudence, their place in the world, the value position of law and the state in the life of people, their meaning and purpose. They answer questions about how the legal world is arranged and what it consists of, what patterns underlie the functioning of law and the state, and how a person, society should use them in their activities. This level of methodology for jurisprudence implies a view of law and the state and their manifestations as one of the ways of activity in the vast and vast world of social, natural and informational connections in which they live and act, in an infinite variety of phenomena and processes of various orders. With a certain scientific development and approaches to deepening its knowledge, not so much new specific aspects of objects, their properties and essence are revealed, but their similarity and individuality are revealed, and a certain unity of the world and its power of influence on us through the general laws of its development are gradually realized. Knowledge about the most important regularities, properties of legal reality and legal consciousness appears from the side of philosophy in jurisprudence in the form of a system of general special-legal and philosophical categories. These categories are the so-called paired categories of the highest methodological order: idea - law, principle - regularity, being - consciousness, matter - spirit, soul, movement - development, development - evolution, time - space, quality - quantity, essence - phenomenon, purpose - result, purpose - meaning. Representatives of another philosophical trend - idealism - associate the existence of the state and law either with objective reason (objective idealists), or with the consciousness of a person, his experiences, subjective and conscious aspirations (subjective idealists). According to the basic ideas of pragmatism, the concept of scientific truth is elusive, because everything that brings profit, success is true. Whether ideas about the state and law correctly reflect social ties is revealed only when they are correlated with specific practical results. Intuitionism is based on the analysis of the integral problems of the state and law with the help of inspiration, insight. A legal scholar only in a state of mystical connection with the Higher Mind, God, can establish what the state and law are, what their meaning and purpose are. The axiological method is an analysis of the state and law as specific values, with the help of which social group or society as a whole regulate the appropriate behavior of people. Recently, the pragmatic approach has been used by supporters of the dialectical materialist method, but in a new liberal interpretation. At the level of general scientific knowledge, traditional methods of cognition of reality are used: the system method, analysis and synthesis, induction and deduction, the method of historicism, functional, hermeneutic, synergetic, etc. They do not cover all scientific knowledge, like philosophical methods, but are applied only at its individual stages. . They also include such methods as: systemic, structural-functional, hermeneutic, synergistic. The number of special scientific methods should also include such methods that allow the development of new knowledge about law and the state (for example, the interpretation of legal texts and norms). These methods are usually not used separately, but in various combinations. The choice of research methods is associated with various reasons. First of all, it is due to the nature of the problem under study, the object of study. The choice of methods is directly dependent on the worldview and theoretical position of the researcher. Thus, when studying the essence of the state and society, their development, a jurist-ideologist will most likely focus on the driving factors of their evolution, positive ideas of the creative activity of society, and a jurist-sociologist will analyze the effectiveness of the influence of certain ideas, norms and legal acts on the development of the state and public consciousness. With intensive, "breakthrough" scientific, technical and information development society is changing and the legal life of people. Law, using information and communication technologies, becomes the so-called "virtual law" or "virtual space law", changing its form, source and content. As a result, new scientific knowledge in this area appears - legal cybernetics. In fact, law becomes “elusive” and “invisible”, a more subtle “informational” instrument for regulating social interaction, taking into account the psyche of people and the influence of information on it. Thus, the social significance of the methodology of legal science, in fact, as well as the science itself as a whole, its constituent parts, is due to the useful and significant result that they bring for people and their communities. Methodology, in fact, is a way of thinking of a person, society, which makes it possible to improve not only the very ideas about the world and legal processes and phenomena, but also to really improve social life based on the objective principles of being. 2. The truth of legal knowledge. The problem of determining the truth of legal theory. In a natural way, legal science in its knowledge of law seeks to reflect in the scientific mind the essential characteristics of legal phenomena and processes. One of such important characteristics is the adequacy of the real properties and qualities of the objects under study obtained in the process of intellectual-volitional activity. This is called truth, which is directly related to the accuracy of our ideas about law and its various manifestations. In other words, truth is the correct reflection in our minds of ideas about law and legal phenomena, which are expressed through a system of scientific categories. The most important criterion for the truth of knowledge is legal practice or legal reality itself. It is the final results of legal activity that reflect the correctness, i.e. the truth of the legal knowledge that was used in the process of legal practice. The problem of the truth of legal knowledge is not at all accidental. In practical legal activity, the question of truth in law has been raised throughout the history of the existence of law as a way of proving certain life circumstances and cases. We are talking about that side of legal activity, which concerns the procedural issues of legal activity. In particular, for example, in criminal law, when determining the question of the guilt or innocence of a person, the problem of the so-called “fact” arises. For example, the participants in the process (judge, lawyer, prosecutor, etc.) determine the existence of a crime, its objectivity and truth, other issues of the criminal process, such as: did the person who is on the dock commit the crime, is there a causal connection between the actions of the defendant and the consequences that caused harm to the victim, etc. Also, the question of truth in law is raised in the context of the "correctness" of the rule of law, i.e. its adequacy, expediency and objectivity in the process of lawmaking and law enforcement, the functioning of the legal system. For example, in the legal literature there is a quite reasonable suggestion that the informational quality of law should be inherent in truth. As some jurists (V.M. Baranov) note, the truth of a rule of law expresses a practice-tested “measure of the suitability of its content and form in the form of a cognitive-evaluative image, respectively, to reflect the type, type, level or element of the development of progressive human activity.” But a more precise position on this issue was expressed by V.M. Syrykh, who believes that regulatory regulators are required to be correct, to fully correspond to the existing, existing theoretical provisions of science. However, it must be remembered that correctness is based on truth, but is not identical with it. In his activity, a person makes the transition from truth to correctness, which is equivalent to the transition of thought based on it to action. In correctness, we, as it were, move into a different sphere associated with truth and theoretical activity, but at the same time we go beyond its limits - we are already talking about human behavior, about assessing his actions, actions from a theoretical point of view and in accordance with practical needs (In .P. Kopnin). At the same time, the criterion of truth can be used to assess the social and legal goals that legal science in the person of certain subjects (for example, a law-making or law enforcement agency) is trying to achieve with the help of specific rules of law and which should be determined quite accurately before analyzing the results. actions of the studied norms of law. For example, those legal decisions that are made in accordance with objective reality by subjects of various types of legal activity - law-making, control and supervision, law enforcement, interpretation, etc., should be true. In particular, the same V.M. Syrykh writes about the truth of the conclusions of the court in a criminal case, which is ensured by full and comprehensive knowledge of the circumstances of the previously committed crime. The same requirement can be attributed to the entire system of law (legislation system), which reflects the entire system of social legal relations (legal system) for compliance and objectivity of its reality, i.e., the truth and suitability of existence. It should be noted that the question of truth is considered in the light of the assessment of incoming information in the functioning of the entire legal system as an integral living organism. This, in fact, is about one or another type of legal understanding (legal worldview), which sets the vector for the development of the legal system. It is necessary to take into account the provisions on the object, subject (patterns), as well as on the result of the functioning of the legal system, which make a significant contribution to the development of the legal system. The very state of the normal functioning of the legal system is reflected in its ability to manage, adapt and adequately respond to changing environmental conditions. This management, analysis and reaction of the legal system is due to the quality (truth) of the information coming to it. Information is almost the main factor in the development and life support of man and society. It participates in the formation of not only consciousness and subconsciousness, the spiritual abilities of an individual, but also society, the state and their legal systems. Information and its quality in the legal sphere determine the nature of the rights and obligations of the subjects, their legal personality and interaction, and the legal principles and legal ideology in this regard act as the “main” principles (patterns) of providing and filling with specific social content of the subjects’ activity. As lawyers rightly point out, neglect of legal information, misunderstanding of this information or its deliberate distortion (use for criminal purposes), i.e. inadequacy of legal consciousness (untruth), leads to the filling of legal material with inaccuracies, future dangers that contribute to the development of legal nihilism (theoretical and practical), excessive judicial discretion, abuse of law, offenses against justice, weakening the unity of Russian legality and other negative legal and related social consequences. Thus, the truth of legal knowledge is due to the conceptual methodological assumptions of understanding the legal life and verification of the findings practical actions subjects of lawmaking and law enforcement. In this regard, there is the only true way to check legal provisions for their correctness and truth, which is presented in the method of legal experiment. It is the legal experiment, as a method of scientific verification of the truth of the alleged conclusions, that makes it possible to predict the legal reality and avoid a number of subsequent errors in legal practice. So, the method of socio-legal experiment is to create an alleged "model" sample (for example, a norm, act or situation) using legal and state tools, which is placed in the real conditions of its proper existence. In particular, for example, the introduction of the institution of jury trial and legal acts related to its functioning in order to check its operation in specific social conditions, made it possible to successfully avoid many mistakes and revive this most important democratic institution of justice in Russian society. Experimentally, this institution was introduced sequentially, in stages, first in nine constituent entities of the Russian Federation, and then in the rest. Along with the method of legal or legal experiment, there is a method of legal modeling. The method of legal modeling is the mental reproduction of models of state-legal phenomena and their manipulation in the expected conditions. This method is aimed at finding the best options for solving specific problems in the process of lawmaking and law enforcement, which allows the introduction of legal novels of a recommended and optional nature (for example, a model code). There are other ways of legal modeling. Legal practice should not be understood as any actions that ultimately lead to a certain social outcome, result, but only those that create legally significant consequences, i.e., basically creating legal acts and actions. Legal practice is a purposeful objective activity of a subject of law to create and recreate a legal system as a set of all legal processes and phenomena. Most often, society or a person uses legal means to transform legal reality. An important difference between legal practice and other social practice is that a person creates complex legal instruments (acts, deeds, misconduct, etc.) for the transformation of legal activity, which are reproduced and transmitted from generation to generation as a special legal reality. 3. Stages of formation of the methodology of legal science. Methods of scientific knowledge The formation of the methodology of legal science is historically conditioned by the development of the practical activities of society, the accumulation of experience of legal life in various spheres of life and, as a result, the development of public consciousness, its legal way of thinking. The history of ideas about law, its comprehension, interpretation and knowledge has gone approximately the same way as the history of science as a system of knowledge as a whole. As a rule, the following stages are distinguished in it: philosophical-practical, theoretical-empirical and reflective-practical. The first period covers the legal thought of antiquity, the Middle Ages and a significant part of the New Age, while the second and third periods mainly fall at the end of the 18th and 20th centuries. In general, the evolutionary (gradual) development of law, the improvement of legal activity, law-making and legal technique, and at the same time a critical understanding of the created and functioning law was marked by the emergence of a special type of social activity - scientific and doctrinal, aimed at understanding the general laws of legal life and the evolution of law . This circumstance, in turn, gave a direct impetus to the emergence of the foundations of the methodology of legal science as a section of legal knowledge that deals with the development and application of certain methods of studying law and legal reality. To solve scientific problems, many methods are used that can be classified in different ways. The most common basis for classification is the degree of generality. In legal science, it is also customary to subdivide methods into four levels: philosophical (ideological), general scientific (for all sciences), particular scientific (for some sciences) and special (for individual sciences). Formal-logical and general scientific methods of scientific knowledge are of particular importance for legal science. Among the general logical methods of cognition, methods of formal logic are distinguished: · analysis is a method of mentally dividing the object under study into certain elements with the aim of in-depth and consistent knowledge of them and the connections between them; · synthesis is a method of mentally recreating the whole on the basis of the known parts and their relationships; · abstraction is the mental separation of individual elements, properties, relations of an object and their consideration in isolation both from the object as a whole and from its other parts; · concretization - correlation of abstract representations and concepts with reality; · deduction is a reliable conclusion from knowledge of a greater degree of generality to knowledge of a lesser degree of generality; · induction is a probabilistic conclusion from knowledge of a lesser degree of generality to new knowledge of a greater degree of generality; · analogy - a conclusion about the belonging of a certain feature to the subject under study on the basis of similarity in essential features with another subject; · modeling is a method of indirect knowledge of an object with the help of its model. General scientific methods are those techniques and operations that have been developed by the efforts of all or large groups sciences and which are used to solve general cognitive problems. These methods are divided into methods-approaches and methods-techniques. The first group includes substrate (content), structural, functional and system approaches. These approaches guide the researcher to the appropriate aspect of the study of the object under study. It is with the help of this group of methods that the main process of scientific cognitive activity is carried out - this is the study of the properties and qualities of the studied object of knowledge. At the level of general scientific knowledge, traditional methods of cognition of reality are also used: the system method, analysis and synthesis, induction and deduction, the method of historicism, functional, hermeneutic, synergistic, etc. They do not cover all scientific knowledge, like philosophical methods, but are applied only to its individual stages. In this group, methods are divided into empirical and theoretical. The universal empirical method is observation, which is understood as a purposeful sensory perception of the facts of reality. This method is characterized by relative limitation and passivity. These shortcomings are overcome by applying another empirical method. Experiment - a method in which, at the will of the researcher, both the object of knowledge and the conditions for its functioning are formed. This method allows you to reproduce the processes the necessary number of times. According to the historical method of cognition, the state and law must be approached as social reality changing in time and space. If, for example, in Marxism, when explaining the reasons for the development of society and the state, law, priority is given to the economy (basis), then in idealism - ideas, consciousness and worldview. The system method is the study of the state and law, as well as individual state-legal phenomena from the standpoint of their existence as integral systems consisting of interacting elements. Most often, the state is considered as a set of such components as the people, power and territory, and law - as a system of law, consisting of spheres, industries, institutions and rules of law. The structural-functional method is closely related to the system method, which consists in the knowledge of the functions of the state and law, their constituent elements (functions of the state, functions of law, functions of legal responsibility, etc.). In legal science, there are a number of provisions, categories, structures and trends (scientific schools) that are dogma, that is, generally accepted and recognized by all lawyers and jurists. For example, such concepts and legal constructions as the system of law, the rule of law, the system of legislation, the form of law, the source of law, the operation of law, the form of implementation of law, the mechanism of legal regulation, law in the objective sense, law in the subjective sense, legal relationship, subjective legal rights and responsibilities, etc., are generally accepted and are interpreted for everyone in basically the same way. The legal-dogmatic (formal-dogmatic) approach allows us to consider law as a sociocultural phenomenon and understand it as a system of fundamental legal institutions, rules and structures, means and methods of legal regulation, forms and concepts of legal activity, etc., formed in the process of historical development of law and embodied in specific legal systems that are established by the state. The hermeneutic method used in the legal sciences proceeds from the fact that law, legal acts, the rule of law are phenomena of a special worldview. Therefore, they need to interpret their "life integrity" on the basis of a person's "internal experience", his direct perception and intuition. Any epoch 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 invested in the relevant concepts in that era. The synergetic method is a view of phenomena as self-organizing systems. Out of the creative potential of chaos, a new reality emerges, a new order. In legal science, synergetics considers the state and law as random and non-linear, i.e., concrete historical and variable social phenomena. The state and law are constantly changing, as they are caused by many different reasons, factors and options for possible events. General scientific methods determine only general approaches to solving the problems of legal science. Therefore, along with them, private scientific methods are used, which allow one to gain knowledge on issues of state and law. These are methods of concrete sociological research, mathematical, cybernetic, comparative legal, etc. The method of specific sociological research involves the collection, analysis and processing of legal information (official documents, materials of the practice of law enforcement agencies, materials of questionnaires, surveys and interviews). It is aimed at establishing the social conditionality of law and legal norms, identifying the need for law in society and the effectiveness of legal regulation. The mathematical method is based on the analysis of quantitative indicators that reflect the state and dynamics of changes in a particular social and legal phenomenon (for example, the level of crime, public awareness of the main regulatory legal acts, etc.). It includes the observation of social and legal phenomena, quantitative data processing, their analysis and is used in the process of studying phenomena characterized by mass character, repetition and scale. The modeling method is the mental creation of models of state-legal phenomena and their manipulation in the expected conditions. This method is aimed at finding the best solutions to specific problems. The method of socio-legal experiment is to create an experiment using legal and state phenomena. For example, the introduction of the institution of trial by jury, legal acts or individual legal norms and verification of their operation in specific, real social conditions. The cybernetic method is a method associated with the use of concepts (“input-output”, “information”, “control”, “feedback”) and technical means of electronics and computer technology. This method is used for automated processing, storage, search and transmission of legal information. Special methods allow to detail knowledge about legal and state phenomena. The number of special scientific methods should also include such methods that allow the development of new knowledge about law and the state (for example, the interpretation of legal texts and norms). The methodology of interpretation is a separate area of legal knowledge and is understood as the doctrine of interpretation or, as they sometimes say, hermeneutics. Hermeneutics (from the Greek. hermeneutikos - explaining, interpreting) - the art of interpreting texts (classical antiquity, religious monuments, etc.), the doctrine of the principles of their interpretation. Legal science in its continuous development is in constant interaction with various branches of the humanities. Modern legal hermeneutics as a direction of modern jurisprudence is actively developing issues of interpretation, problems of the theory of the language of law, including in connection with the fundamental problems of understanding the meaning of legal texts. It explores the practice of interpreting the various legal meanings contained in official written documents and oral speech, in signs and symbols, in the judgments of lawyers about legal situations. It should be noted that the hermeneutic approach to the study and interpretation of law-significant texts is a legal direction in the field of humanitarian knowledge. Until recently, legal research, as a rule, was limited to formal-logical operations designed to produce the most in-depth analysis of legal material for its practical use in the process of implementing a particular law. For many centuries, numerous attempts have been made to interpret legal texts that have a sign-symbolic nature. The need to interpret these texts is caused by the following reasons: · ambiguity of legal monuments and texts, depending on the obsolete words contained in the law and the archaic text, or on the fact that the expression used by the law grammatically equally admits two different interpretations;
· specificity in the presentation of legal texts (doubts in understanding the law sometimes arise from the fact that the legislator, when presenting the law, instead of the general principle, puts forward individual, specific objects of the law); · the uncertainty of the law (sometimes doubts arise due to the use of general, insufficiently defined expressions by the legislator); uncertainty of quantitative relations in the law; · contradictions between different texts of the law; · interpretive fences around the law; · changes in living conditions (the main motive that prompted the teachers of the law to interpret the text, moreover, quite often in conflict with its direct, literal meaning, were changes in the cultural structure of people's life, etc.). The purpose of modern legal hermeneutics is, after all, in the search and implementation of the meaning of the legal text, the study of the problems of the plurality of meanings and interpretation. In modern conditions, the form of law cannot act otherwise than as a sign form, the source and embodiment of which is the language. Legal regulation and its elements act as ideal objects, an external form of expression of public consciousness, which is subject to understanding and application. These methods are usually not used separately, but in various combinations. The choice of research methods is associated with various reasons. First of all, it is due to the nature of the problem under study, the object of study. For example, when studying the characteristics of a particular state that organizes social life in a given society, one can use a systemic or structural-functional method. This will allow the researcher to understand what underlies the life of a given society, which bodies manage it, in what areas, who manages it, etc. The choice of methods is directly dependent on the worldview and theoretical position of the researcher. Thus, a jurist-ideologist, when studying the essence of the state and society, their development, will most likely focus on the driving factors of their evolution, positive ideas of the creative activity of society, and a jurist-sociologist will analyze the effectiveness of the influence of certain ideas, norms and legal acts on the development of the state and public consciousness. Conclusion legal science right truth Today in science there are many views on the methodology of legal science from the standpoint of various philosophical and theoretical schools. For example, from the point of view of the system-activity approach (V.M. Gorshenev, V.N. Protasov, R.V. Shagieva, etc.), structural-functional (S.S. Alekseev, G.I. Muromtsev, N. I. Kartashov and others), information and communication (R.O. Khalfina, A.V. Polyakov, M.M. Rassolov and others), normative (M.I. Baitin, A.P. Glebov and others). ), cultural and historical (V.N. Sinyukov, A.P. Semitko); integrative (V.V. Lazarev, B.N. Malkov) and even civilizational. The question of the very understanding of the methodology of jurisprudence in legal science is relevant. Opinions of theorists on this issue differ diametrically. This is partly due to the difference in understanding of the methodology and method of jurisprudence, as well as the tasks themselves, the object and subject of legal science. Perhaps the greatest differences in the understanding of the methodology of legal science are associated with ideas about the boundaries of methodological research in jurisprudence. Some authors limit the methodology of legal science to the study of research tools of jurisprudence, questions of applying a set of specific methods and means of scientific knowledge to the study of legal phenomena. Others supplement the instrumental approach with a study of the very process of cognition of law, its philosophical and methodological foundations. Still others talk about the consideration of the epistemological features of jurisprudence, argue that “an analysis of legal knowledge at the level of philosophical methodology is insufficient and overly abstract to identify the specifics of legal (theoretical) knowledge. One way or another, theorists are inclined to believe that a different, more specific methodology is needed, dealing not with theory in general, but with that kind of theory that is observed in legal science. You can also notice the actual identification of the methodology of jurisprudence with the entire set of principles, means and methods of rational knowledge. Thus, the methodology of legal science is a general scientific phenomenon (for all legal sciences), covering the entire set (system) of principles, means and methods of knowledge developed by all sciences, including the system of legal sciences, and applied in the process of learning the specifics of the state- legal reality, its improvement. The social significance of the methodology of legal science, in fact, as well as the science itself as a whole, its constituent parts, is due to the useful and significant result that they bring for people and their communities. Methodology, in fact, is a way of thinking of a person, society, which makes it possible to improve not only the very ideas about the world and legal processes and phenomena, but also to really improve social life based on the objective principles of being. The truth of legal knowledge is due to the conceptual methodological assumptions of understanding the legal life and verification of the findings by the practical actions of the subjects of lawmaking and law enforcement. In this regard, there is the only true way to check legal provisions for their correctness and truth, which is presented in the method of legal experiment. It is the legal experiment, as a method of scientific verification of the truth of the alleged conclusions, that makes it possible to predict the legal reality and avoid a number of subsequent errors in legal practice. The formation of the methodology of legal science is historically conditioned by the development of the practical activities of society, the accumulation of experience of legal life in various spheres of life and, as a result, the development of public consciousness, its legal way of thinking. Bibliography 1. Boshno S.V. Theory of Government and Rights. - M.: Eksmo, 2007. - 400 p. 2. Vengerov A.B. Theory of Government and Rights. - M., YuriditLit, 2008 - 624 p. 3. Grigoryeva I.V. Theory of Government and Rights. - Tambov: TSTU; 2009. - 304 p. 4. Engibaryan R.V., Krasnov Yu.K. Theory of Government and Rights: Tutorial. - M., Yurayt, 2008 - 272 p. 5. Ivanov A.A., Ivanov V.P. Theory of state and law. - M .: Unity-Dana, 2007. - 303 p. History of political and legal doctrines / ed. O. E. Leist. - M.: Zertsalo, 2009. - 677 p. Kerimov, D.A. Methodology of Law: Subject, Functions, Problems of the Philosophy of Law / D.A. Kerimov. - M.: SGU, 2009. - 520 p. 8. Kutafin O.E. Fundamentals of state and law. - M., Prospekt, 2008 - 335 p. 9. Lazarev V.V. Theory of law and state. -M., Yurayt, 2009 - 365 p. 10. Lazarev V.V., Lipen S.V. Theory of State and Law / Under the editorship of M.V. Krinova - M., Yurayt-Izdat, 2011 - 634 p. Melekhin A.V. Theory of state and law: textbook. - M.: Market DC Corporation, 2007. Protasov V.N., Protasova N.V. Lectures on the general theory of law and the theory of the state. M., 2010. S. 32. Rassolov, M.M. Theory of state and law: textbook / M. M. Rassolov. - M.: Yurayt, 2010. - 635 p. 14. Spiridinov. L.I. Theory of Government and Rights. - M., Zertsalo, 2007 - 258 p. 15. Theory of state and law / Under the editorship of Matuzov N.I., Malko A.V. - M.: Jurist, 2007 - 392 p. 16. Khropanyuk V.N. Theory of Government and Rights. - M., Norma, 2011 - 715 p. Cherenkova E.E. The system of law and the system of legislation of the Russian Federation: concept and correlation: Abstract of the thesis. dis.... cand. legal Sciences. M., 2006. - 20 p.
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. In the domestic legal literature on this issue, various views are presented. According to some authors, the specific method of legal science can only be represented by its theoretical and conceptual apparatus, while general and special methods are only used by legal scientists, but are not developed by them. Other authors believe that the method of legal science is made up of both rules, principles of cognition, and its conceptual apparatus: concepts, categories, principles.
Attempts to include the conceptual apparatus of legal science in its method are untenable, because they do not correspond to the actual relationship between the 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, no doubt, act as an effective means of scientific knowledge, but in comparison with the method they perform a different theoretical function inherent only to them.
Categories and concepts are used at all stages, stages of scientific knowledge due to the fact that they reflect the essential aspects of political and legal phenomena and processes and thus 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 is already in science as reliable knowledge, in particular, to identify the essence and form of the studied phenomena, their elements, connections, signs, functions. His attention should be focused on the study of those aspects, connections, regularities of the studied phenomena that have not been fully studied 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 their trends. further development. The acquired knowledge is reflected, fixed, mainly with the use of the existing conceptual apparatus of science. New categories, concepts are introduced into scientific circulation only in those cases when fundamentally new knowledge has been obtained that are not covered by the existing conceptual apparatus of science. In the same way, the explanation of new phenomena and processes identified during the study, their individual connections, signs is carried out using the available conceptual apparatus.
However, it should 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 forecasting. 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 delusions and errors.
K. Marx's doctrine of the 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 1930s-1950s, justification of the personality cult of I.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 laws of the state acting 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, positions - this is by no means a complete list of the "achievements" of Soviet jurisprudence. And all because Soviet lawyers failed not only to creatively develop the teachings of K. Marx, to cut off from him everything 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 fixed in the rules, principles that make up the direct content of various general and special methods. But these rules and principles themselves are not formulated arbitrarily, but on the basis of and in accordance with the objective laws of the subject of research, reflected in the concepts and categories of science. And where the theoretical and conceptual apparatus is used as an objective basis for the methods of scientific knowledge, it realizes its methodological function.
The development of rules, principles of knowledge is carried out in the course of special studies. On the basis of the learned objective regularities about law and other legal phenomena, rules and principles of knowledge are formulated. An example of such rules is the principles of interpretation of law. It is not difficult to detect the conditionality of the requirements of the methods of interpretation of law 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 significance for all the norms of a given branch is nothing more than a methodological expression of a well-known correlation between general and specific norms. In turn, the requirement, when interpreting the rules of law, to take into account the links between 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 normative legal acts.
On the basis of the learned patterns of functioning and development of the state and law, legal scholars develop a method of the theory of state and law. At the same time, they have to solve the following tasks: 1) determine the system of specific methods of cognition of law; 2) systematize methods, clarifying their epistemological nature and scope; 3) specify general and special techniques in accordance with the specifics of the subject of knowledge, develop private law methods.
Any method used in the theory of state and law contains requirements, rules that take into account the specifics of the state or law. So, in the comparative legal method, the general principles of comparison receive a concretized expression. Based on the theoretical provisions on law as a normative regulator of social relations, legal scholars develop specific criteria for the object and basis of comparison, and also determine the phenomena and their features 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 aspect of social phenomena. However, all these methods are still timidly used in jurisprudence, since methodological issues related to their adaptation to the knowledge of the specific laws of the state and law remain unresolved. Overcoming methodological problems that impede the widespread use of statistical methods in jurisprudence is the primary task of legal scholars. It is they 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, in jurisprudence, methods of mathematical modeling, experiment, which have received a fairly deep development in philosophical literature, are not widely used.
In this way, 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, principles, they realize the 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, which are not in the subject of research itself and the concepts that reflect it. It is these rules, principles in the aggregate that 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 grounds that they reflect the essential, natural aspects of legal phenomena means to present the theoretical function of concepts and categories as a methodological one. In practice, this would turn any theoretical study 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, such an approach creates a real danger of identifying methodological problems of jurisprudence with theoretical ones and substituting the former for 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 cognition, which are based on the known objective patterns and guide the researcher to obtain new objectively true knowledge.
The rules, principles of cognition, applied at any one stage of scientific cognition or for solving one cognitive task, together form a separate specific method. So, the rules used in the process of interpreting the rules of law, in their system form a method of interpreting the rules of law, the rules governing the process of obtaining general knowledge from single facts - induction.
The methodological arsenal of the theory of state and law is quite complex. It includes methods of various degrees of generality and cognitive tasks, including:
- 1) general philosophical method. Its universality is expressed in the fact that this method is used in all specific sciences and at all stages, stages of scientific knowledge;
- 2) common methods - analysis, synthesis, abstraction, system-structural approach, ascent from the abstract to the concrete, which, like the philosophical method, are used in all specific sciences, but the scope of which is limited to solving certain cognitive problems;
- 3) special methods of legal science. They are made up of methods, techniques that were originally 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 for the knowledge of political and legal phenomena and can only be applied within the limits of legal science. These include methods of interpretation of law, comparative legal method and some others.
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