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The concept of wide comprehension
The basic concepts of comprehension. The general theoretical study of the concept of law, its nature, content and form of existence in the context of the value of basic types of law and distinguishing features broad approach to understanding the law.
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1. GENERAL DESCRIPTION COMPREHENSION
1.1 Comprehension as one of the main categories of the theory of law
2. DESCRIPTION OF WIDE APPROACH TO UNDERSTANDING THE LAW
2.1 Concept and features a wide comprehension
2.2 Value of wide comprehension of other legal
3. ISSUES OF IMPORTANCE AND WIDE COMPREHENSION IN LEGAL PRACTICE
Issues understanding of the law, without exaggeration can be attributed to the "eternal". Since the emergence of professional legal practice until today did exist, apparently, no lawyer who has not pondered the question, what is right, and not try to answer it.
Relevance of the topic due to the fact that legal science today is not produced a single position on the understanding of the concept of law. Undoubtedly, the right is one of the objects of knowledge and nayvazhkodostupnishyh mostly defined as a product and a tool of the state, a vehicle for political purposes rather than as a complex world, multifaceted reality with its own laws, its arrangement and the logic of development that distinguishes it from other areas of human being.
In numerous publications on the problems of comprehension are updated on methodological issues and general principles of the analysis of these problems. Positivist methodological doctrine comprehension, which had long been recognized widely, gave way to other teachings, including essentially been singled multidimensional, broad comprehension as a priority Modern Social Sciences.
When writing a term paper were used work of scholars such as N. Varlamov, M. Kelman, M. Kravchuk, A. Kolody, B. Kopyeychykov, P. Rabinovich, A. Skakun, A. Surilov et al.
A variety of approaches to understanding the complexity of the law is determined by law, ontological, political, ideological and religious reasons.
The aim of the course work is integrated general theoretical study of the concept of law, its nature, content and form of existence in the context of the value of basic types of law and distinguishing features broad approach to understanding the law. To achieve a certain goal outlined in the following tasks:
- Analyze comprehension as one of the main categories of theory of law;
- To highlight the essence of the basic concepts of comprehension;
- To characterize and define the features of a broad approach to the understanding of the law;
- Analyze the importance of wide comprehension problems and its application in the practice of law.
The object of study is the comprehension as scientific, intellectual and creative process.
The subject of research is basic types of comprehension, their theoretical and methodological and theoretical and practical significance at the present stage of development of legal science.
The methodological basis of the study is general scientific principles of objectivity, historical, research completeness. Given the specific themes, goals and objectives appropriate to use the following methods:
- Unity of history and logic - the disclosure of changes that have been or that theory, the concept of comprehension;
- Dialectic - the analysis of the ratio of natural and positive law, the relationship of the concepts of "right" and "law";
- Specially-law - when installing external signs legal phenomena, their differences between themselves and simulate their definitions.
To study the criteria for assigning types of law in the applied system-structural method, and to determine their characteristics, advantages and disadvantages - A comparative legal.
1. GENERAL DESCRIPTION COMPREHENSION
1.1 Comprehension as one of the main categories of the theory of law
Question comprehension belonging to major in theory of law. In the world there are many scientific ideas and beliefs about what is right, what is its essence. Comprehension - the process and the result of human intellectual activity aimed at knowledge of law, his perception (evaluation) and related to him as a holistic social phenomenon.
Right, like the state, is the product of social development. Legally it is formed in the state organized society as the primary regulatory control of public relations. Manners, moral and religious norms of primitive society sidelined, preferring the legal regulation of social relations. Views on the right, its origin, place and role in the regulation changed with the development of the society, maturity scientific and legal thought, the influence of objective and subjective factors.
Right so unique, sophisticated and socially necessary phenomenon for the entire period of its existence, the scientific interest in it does not fail, but rather constantly growing.
Comprehension is not possible without highlighting historical aspects of the origin, formation and development of the law, but the variety of interpretations of the nature of law, its essential features leaves its mark on pravoutvorennya problems [2, c.97].
Comprehension - a scientific category, which reflects the process and the result of purposeful mental activity a person who holds a knowledge of law, its assessment and treatment of him as a holistic social phenomenon.
The subject comprehension is always a particular person, such as: a) A citizen has the minimum legal philosophy, which is facing problems of law in general, and b) a practicing lawyer who has sufficient knowledge of the law, is able to apply and interpret legal norms in) scientist, a man with abstract thinking, which deals with the study of law, endowed with the sum of historical and contemporary knowledge, able to interpret not only the rules but also principles of law holding the methodology of the study. Comprehension is always subjective, original, although the idea of the right to be the same in the group of people walks.
The object of comprehension may be right on a planetary scale, the right of a particular society, industry, Institute of Law, certain legal provisions. This knowledge of the individual structural elements extrapolated to the law in general. It should be noted that the importance of cognitive load here are environment and interacting with the right social phenomena.
Contents comprehension skills are subjects about their rights and responsibilities, specific and general legal permissions, prohibitions, as well as evaluation and treatment of them as fair or unfair.
Depending on the level of culture, methodical provision of subject and object choice comprehension study can be complete or incomplete, correct or distorted, positive or negative [9, 113].
Normal people understand the right way it allows her own mind according to cultural traditions present era and society. For her understanding of the law in the time scale limited scope of her life. However, this does not mean that after her death comprehension disappears completely. Such elements of comprehension, as knowledge, assessment, can be transmitted to other people, and legal scholars leave behind besides writing of the law.
1.2 Basic concepts of comprehension
A fundamental problem of the theory of law is the essence of the problem and the social nature of law.
In studying the various theories and views on the right to consider the following facts: first, the historical conditions of existence of the right in which he lived researcher, and secondly, that the result of comprehension always depends on its religious, ideological, moral position, and thirdly which side is right is taken as the basis of a concept.
Modern theories of law have a common understanding of the nature of law. And while there are a set of individual concepts, trends in legal theory, among which are the basic ones. Particularly widespread in contemporary political science and the science of law were sociological, solidaristic, the normative (neo), psychological trends as well as the theory of "revived natural law" [13, 273].
According to the theory of natural law, whose ancestors were Grotius, Hobbes, Locke, Montesquieu and others., In society, along with the legal standards set by the state, there is also a natural right. Natural law belongs to the man from birth and includes the right to life, personal liberty, private property, the right to be happy. These rights are recognized as indispensable, and every encroachment upon them others, including the state, an offense or crime in general. Positive law is set by the state in the form of laws and regulations. Underlying this are natural rights. The law recognizes the extent it meets, develops and elaborates natural rights. Unjust law does not create a right - a fundamental principle of the theory [7, p. 133].
But for all its democracy theory of natural law has significant flaws that are easily found her opponents.
Firstly, this theory is anti-historical. It contains a list of rights that had always belonged to humanity and invariably accompany it in our time and nothing they can not cancel or change. A similar principle was nominated Grotius, which is recognized as inviolable natural right that it can not be changed even by God.
Second, representatives of the theory of natural rights have no clear criteria by which we could somehow distinguish natural law from positive. Yes, Grotius recognized natural slavery. As a form of government that is most consistent with the principles of natural law, Hobbes recognized the absolute monarchy, while Locke - limited monarchy.
Thirdly, the theory of natural law could not explain how on the basis of a relatively small set of natural rights grows a variety of legal systems [11, 83-84].
Neo-Scholasticism - the latest interpretation of the medieval doctrine of Thomas Aquinas. Divine law aims to eliminate the imperfections of human and positive law, if it differs from the natural law. Proponents of neo-Thomism emphasize the predominance of natural law over human, positive, that is set by the state.
"Secular" doctrine of natural law comes from ethical primordial law of necessity under legal statutes moral requirements of natural law, based on the standards of fair behavior. For this theory characteristic is recognized as the foundation of "correct", "legitimate" rights of some natural regulatory system that does not coincide with the positive law [6, p. 124].
Positive values of natural law theory as follows: Firstly, it argues the idea of natural, inalienable rights, and secondly, because this theory began to distinguish between right and law, natural and positive law, and thirdly, it conceptually combines the right and morality.
Two types of rights recognized by representatives of the psychological theory of law, the founder of which was a Russian lawyer LI Petrazhitsky.
The right is treated primarily as a psychological activity of individual human rights, "imperative-attributive 'emotions, feelings evaluation experiences. Emotions are divided into: a) experience positive law established by the state, and b) the experience intuitive and personal rights. Man feels himself bound by the claims of others who expect from it perform certain obligations. Such psychological experiences define specific acts of human behavior and act it really, really right [1, c.3].
In society, there is also an official right established by the state in the form of laws and other legal acts. Laws can affect the intuitive human right, the processes of formation of her will. Yet they do not always dominate the decisions that individuals make. The latter may take into account other social norms and act contrary to the installation of the official law. Therefore, existing in a society much broader right established by the state regulatory requirements and includes the totality of psychic experiences of people and not just her. Natural manifestations of psychological experiences representatives of this theory is found in ants, chimpanzees and other animals and insects and thus recognize their legal entities with someone.
The right is not seen as a social phenomenon, connected with the state, but as a somewhat intuitive, as a phenomenon that exists in the field of emotions, individual mental human experiences. Thus, government coercion is not acting as a significant criterion of law. In the foreground the personal attitudes of the individual.
The positive is that this theory draws attention to one of the most important aspects of the legal system - psychological. You can not cook and make laws without examining the level of legal culture and justice in society, one can not apply the law, not considering the psychological characteristics of the individual.
However, correctly highlighting some psychological aspects of law, the doctrine dissolves right in the individual psyche, making it identical to justice, thereby ignoring the real objective nature of law as a complex phenomenon of social life [3, c.14-18].
The most common in our country, the normative concept comprehension (or positivist). Right - a system of mandatory, formal set of rules that express and are designed to ensure the freedom of behavior in its unity from liability and thereby act as a state-powerful criterion of lawful and unlawful conduct. This definition gives the right SS Alekseev.
In the above definition clearly enough expressed normative view of law, which has many supporters, especially among practical lawyers, as well as among scientists - representatives of sectoral legal disciplines. Supporters of the main regulatory approach consider legal rules - legislation and other acts, and guided them and each lawyer practices in their daily activities.
Supporters of the normative approach considering law as a set of rules that contain the rules of "good behavior." This approach lies in the fact that the law is distinguished from other social norms (customs, traditions, moral, political, religious norms) on certain grounds.
Supporters of same "broad" understanding of the law (VS, RZ Livshits et al.) Based on the fact that the right is not identical legislation. In the understanding of the law emphasizes the special role of moral and legal, political and other principles.
Normatyvizmu positive value lies in the fact that this approach, firstly, enables you to create and improve the system of legislation, and secondly, provides a specific regime legitimacy, uniform application of the law, and thirdly, provides certainty formal law to clearly define the rights and obligations of the subjects fix measures and means of state coercion [16, c.204-205].
But for all its positive aspects, regulatory approach to understanding the law is still one-sided. Right when this approach is taken as given, as external to the individual system of rules designed to govern its behavior are ignored natural and moral principles in law (except for "broad" understanding), absolute state influence on the legal system. But at the same time understanding the rights should be covered and pravoutvorennya laws and legal superstructure place throughout the public system, and law in action - a combination of standards with real human activities.
Unlike positivists historical school (G. Hugo, Savigny, KF, G. Puhta) understands law as a product of the national spirit, the consciousness of the people who lived and manifested in the relationship of its representatives. Right, like language, is an integral component of the people or the nation and develops similar laws [17, p. 94].
Formation of rights effected by the gradual opening of the national spirit in the historical process. People's spirit determines the characteristics of public justice, and it blossoms in the law. The most comprehensive and consistent source of national spirit is folk customs. Laws also reflect people's sense of justice. But most people's minds is expressed insofar as perceived correctly and consistently carried out by the legislator. Therefore the main task of the legislator lies in identifying and fixing the laws of the national spirit. Formation of rights goes to the laws of objective necessity, and not at the request of individuals or bodies. The state, its agencies not invent laws and authorize the existing social order.
According to representatives of the historical school of law, every nation is inherent in its spirit and, consequently, their own sense of justice. Therefore, the law of one nation may not be suitable for other peoples and nationalities. To the people had a right to which he responds to discover his spirit, and this can only be achieved by conducting historical research. And the deeper leaving in the history of the people of the researcher, the more accurate and complete will the knowledge of the national spirit and the processes of its development.
The basis for the approach to the understanding of the law, which can be called "genetic" was the Marxist formula that class will, which forms the law determined by the material conditions of life of the class.
The genetic approach to understanding the law has developed in two directions. Supporters of one of them sees legal as early as objective preconditions law. Thus, according to EA Lukashov, "social conditionality of rights - not only determination of its content reached the level of social development, but also that certain public relations is programmed as legal" [14, c.208].
According to another right direction does not coincide with its source material, but the content adequate to it. Supporters of this area believe that the right to admit only such regulatory system, the content of which meets certain requirements such as: reflects the objective needs of society expresses functions equitable distribution of social benefits; embodies the general principles of social justice, etc.
In both areas there is an attempt to give meaningful description of the legal system in the class-historical formations or even all formations in general, and on this basis to recognize the right of a "good", "right" right.
Content rights of different ages do not match, it editable and reflects the nature of the particular formation, ruling in her social interests, perceptions and ideas.
"Right can never be higher than the economic structure and caused it cultural development of society" - Marx.
Right, which is not seen as inflexible set of rules as well as the activities of individuals and legal entities - citizens, government and public organizations that are respected, applied and enforced legal orders are subject to the sociological study that has become widespread in recent decades. On this basis, arose and comprehension, focused on the right to action. Sociological approach to understanding the law can be expressed in the formula H.V.Maltseva "Right - it is primarily social life" [14, p. 211].
The rules state, according to supporters of sociological trends in legal theory - is only part of the law. Along with them there is a "right to live", which is nothing like the actual relations existing in society. Above all, they argue, - the study of the real order, ie those requirements, which are set in a legal norm, and the process of law in society, the specific actions of the participants relationship. In this connection justified the idea of "flexibility Law", in other words, the ability to change the legal norms in the process of application. Hence - the rejection of "nezaperechnosti" law, the requirement of freedom of judicial "discretion." This theory is actually expanding "lawmaking" function of judge and humiliation as a law because the judge is not bound by legal rules and may, at its discretion, decide a particular case, relying on their own intuition.
Focusing on the study of the social roots of law and its effective parties, representatives of the "sociological" approach (it can also be called "dynamic") try to understand the law as an effective moment of real social life. Right LS Yavych, who argues that "legal norms dead, undead, do not constitute an effective law, if certain conditions can not be implemented in the actual behavior of people."
For sociological theory specific structural and functional approach to the law, the legal allocation as basic, most essential elements of the law. The right is not limited law.
Law in Action gives an idea about the meaning of regulation, its ultimate goals. The State will, embodied in the legal rules governing this stage materializes in public relations, giving them legal form. Law in action is its implementation, resulting in legal relations, law, legal behavior. Urehulovanist, law and order, which are provided in the community - the necessary elements of comprehension. It is based on the study of law arose the idea of expanding the subject comprehension, that should take into account not only some legal rules, and the whole mechanism of regulation, the entire legal system. In fact, the effect of law made by the implementation (compliance, usage and application) law. In this case the specified activity involved enforcement bodies, formed relationship, it affects people of justice. In other words, operating complex machinery of the legal system, which is not limited to legal norms. This in turn means that speaking about the law and its understanding, we can not ignore those parts of the mechanism, which is not regulated by law, but without rules can not act.
A positive aspect of the sociological approach to understanding the law is the desire to know the law in action during operation. This study legal phenomena and institutions pursues the transformation of social reality, namely, the right is seen as a tool for social transformation, a means of reaching an agreement between the interests of different social groups. This brings sociological theory of law with the so-called solidaristic (social) concept of law [12, c.67].
The basis of direction or solidaristic social concept of law (Duguit) is the idea of solidarity, that cooperation in the exercise of power of different social strata and groups who participate in political life. According to this theory, every member of society must understand the social function set right idea feel the need to commit certain actions to ensure the solidarity of all members of society. Law serves as the spokesman of solidarity, a tool that protects the "common interests" of all groups.
Thus, the social concept, considering the nature of law, presents it as a means of achieving harmony. It aims to find legal means to help eliminate possible social conflicts, ensure order in society. This involves consideration of the law is not in isolation but together with other elements of social reality - the economy, politics, morality - in their functional interdependence and interconnectedness. Hence - the emphasis on the social functions of law in society, for example, as a means of eliminating potential social conflicts, solving other social problems.
In the social concept of law the necessity of the study of law in its relationship with other elements of the social system.
Fundamentally different interpretation of law, its essence give the founders of Marxism. Looking at society as an organic holistic education, which operates and develops objective, independent of the will of the people by laws, Marx and Engels clearly and consistently distinguish between right and law. The right to understand the degree of freedom as members of society. Each class because of its special position in the economic relations of society has its own degree of freedom, their right. The degree of freedom of the members of the class society are not equal, as defined by their belonging to a certain class. Relation classes to the means of production is determined by the measure of their liberty, their class right. The contents of this law are claims to a share class of material and spiritual goods, which are produced by society, to participate in the political life of the society in managing state affairs and to freely express their attitude to the social structure and expression in literature and other artistic fields [10 , c.112].
So, in a society divided into classes, with their conflicting interests, there is no single measure of freedom, the only law. Each class has its own right, which is not only different from the rights of other classes, but also antagonistic towards him. Competing Rights decided that the economically dominant class - the owner of the means of production - takes over state power and holds his right in the form of laws, gives it a universal character and requires compliance with established his laws from all members of society under penalty of State coercion.
The idea of multi-dimensional, multi-faceted approach to the law is perhaps most accurately reflects the joint efforts of scientists to study it. Whatever the views on the right are not adhered, all against unilateralism. And life is confirmed by showing that the consideration of legal issues, such as the position of a particular sociology of information of a party or a psychological aspect can approach the opening of new features right to enrich under its concept. That means opening new relationships, parties, and rice is the process of deepening the concept of law.
Not one kind of right side - the standard, its genesis or right in the action - gives the concept of law. Each of them - just an abstract of his vision. The concept of law is as the amount of knowledge synthesis of all legal disciplines who study law in all its real manifestations sides, features, relationships, perspectives.
2. DESCRIPTION broad ap proach to understanding the law
2.1 Concept and features a wide comprehension
Wide approach to the law is fairly common in legal science, he developed in science (60-80 years of XX century.) And opposes "vuzkonormatyvnomu" approach to understanding the law. Wide approach is based on the concept of law as a unity of legal ideas, norms and relationships. His supporters included the content of the right ideas, norms, relationships. This position was originally grounded in the works of P. Lv, EB Pashukanysa, and further development was in the works. F. Kechekyana, A. Piontkovsky, AK. Stalhevycha, YM Mykolenko, NV Vitruka VD Zorkin, VP Kazymyrchuka, RV Maltsev, RZ Lifshits, EA Lukasheva, NI Kozyubry, VA Tumanov, VS Nersesyantsa, LS Yavycha et al. Under this approach, in turn, affected several areas: one group of authors was inclined to reduce the right to legal ideas (right - regulatory pronounced justice measure, the scale of freedom and so on.) Another group under the law understood ideas, norms and attitudes, and the third - right equated with a system of social relations, etc. [3, c.17].
A characteristic feature of the broad legal understanding is that all the theories, concepts, etc., justifying a broad understanding of the law, seeking to overcome the negative features of narrow comprehension. However, they are able to achieve this in different ways: some of the most someone to a lesser extent. It should be noted that, overcoming the disadvantages of a narrow understanding of the law school, based on a broad comprehension, have in turn very serious shortcomings.
The main disadvantages of wide comprehension due to the fact that within the theories that shape it, very often negate the regulatory side of the law (sometimes completely denying it), and push the state in legal proceedings on the background (or even the third, fourth etc.). And the school wide comprehension, trying to maintain these essential features of law as state-willed nature and normativity, is inherently eclectic, contradictory and difficult to deploy the whole legal theory [5, c.19-20].
At the same time, a broad comprehension proves very important for society and the individual position in the legal field, and in particular:
- Right in essence and content must meet the ideas of society and the individual of the proper, ie, to be fair;
- Law should not hinder the development of social relations, and promote their development;
- The state and its individual members can not violate those rules, principles, ideals, etc. in legal reality that society perceives as necessary;
- Right - a living social organism that develops and plays an independent role in the system of social relations;
- Has the right not only to external mechanisms for its implementation, but it is largely implemented through involvement of the right of psychology relevant social actors (both individual and collective);
- The right is realized not only in the context of the corresponding state mechanism, but also suggests involvement in legal processes of private institutions, such as ideology, morality, culture, etc.
Feature of the present stage of development of the domestic legal science is a tendency in the justification of integrative or natural law approaches to understanding law. However, it is also problematic comprehension, this trend is not adequately reflected in the theoretical constructs (including interpretation of sources, forms, tools and so on right). World-wide legal theory in general continues to evolve within a narrow comprehension (more specifically in this case to talk about normative comprehension) [8, 206].
Broad comprehension oriented to the right in legal, justice, law enforcement acts of subjective rights. However, the basis of the nature of law, this approach can not be taken. Proponents of this trend come from the fact that the concept of law includes not only the norm, but other legal phenomena, justice, legal, subjective rights, acts of law and others. This understanding of rights inevitably leads to the dissolution of his other legal phenomena. We can not agree with Russian scientist Vladimir Kudryavtsev, who wrote: "... professional lawyers should be characterized by a clear and defined position: no desire, belief or opinion can not be regarded as a legal norm, when they are not expressed in a legal act adopted properly ". Unfortunately, proponents of broad comprehension do not account for the fact that modern legal un
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