Objective and subjective in law.
Necessary to distinguish between the objective and subjective right to the right. Objective law - a system of mandatory, formally defined legal standards established and provided by the government for the settlement of public relations.
Objective law - a law, legal practices, case law and regulatory instruments of the period in a particular state. It is objectively in the sense that does not directly depend on the will and consciousness of the individual and not his.
Subjective law - a measure legally possible behavior, designed to meet the person's own interests. Subjective rights are the specific human rights (right to work, education, etc.), which are subjective in the sense that relate to an individual to belong to him and dependent on his will and consciousness.
The famous Russian lawyer N.M. Korkunov said: «The existence of law is not just the existence of legal rules, but also the existence of a legal relationship. Legal norms and legal relationship are two different sides of the right: objective and subjective. Legal relationship called right in the subjective sense, because the right and duty to make membership of the subject. Without a subject, they can not exist: the right and the duty must necessarily be someone's. On the contrary, there are no legal provisions in this regard to the subject. They have a more general and abstract nature, they are not confined to a particular subject, and because, in contrast to the legal relationship is called a right in an objective way».
Along with the right to a legal sense (objective and subjective), there is also a natural law, which covers, for example, the rights as the right to life, the right to liberty. Rights relating to the natural, there is no matter, they are fixed somewhere or not they are directly derived from the natural order of things, from life itself.
In contrast to the natural law, the law in a legal sense (objective and subjective) is seen as a positive right, i.e.
expressed in laws and other sources.Characteristic features of the positive law:
a) it is created by people, or public education - legislators, the courts, by the subjects of the law, that is, is the result of their work, targeted volitional activity;
b) it is in the form of laws and other sources, i.e. particular, the outward expression of reality, not just in the form of thoughts, ideas.
«Legal standards, as expressed in customs, case law, legislation, norms of positive law, is opposed to freely develop a subjective sense of justice... The positive law is only one element of public culture, and the whole culture in general, presenting the legacy of the past, the product has already gone through, can never replace them, and destroy the subjective sense of justice, called and sent directly to the needs of everyday life, and therefore condition the vital importance and the further development of the positive law».
Since the creation of the right and in the course of its development were revealed its two contradictory and simultaneously parties. First party is public law, the second is a private law.
Public law - an area of public affairs, that is, the structure and activities of the state as a public authority, all public institutions, built on the principles of power and domination, on the relationship of subordination. Public law includes such areas of law as constitutional, criminal, administrative, procedural, financial law, etc.
Private law - an area of private affairs, that is, the status of a free person, institution, built on the principles of autonomy, the legal equality of the subjects, and not hierarchy. The private law includes civil law, family law and some others
Construction of the rule of law and development of civil society are brought to one of the first places in the subordination of social factors of law and legal phenomena; put a secondary position the role assigned them by Marxist theory and practice of «socialist» totalitarianism with their allegations of imminent «withering away» of the right together with the state of the legal values as «the faculty of unnecessary things», which, it was assumed the victorious proletariat will throw the dustbin of history, along with other museum archaic.
First, from the point of view of Marxism, society has been analyzed as consisting of four major structures (systems) - the economic sphere of society, its social structure, the political organization of society and its spiritual life. In this case, the legal sphere of public life denied self the existence and functioning, it is included in the political organization of society; the law was, in fact, only an instrument of state policy. This provision is based on Lenin's well-known allegations that the law is a political measure, the law is politics. Such significant and very significant legal phenomena as legal awareness and legal culture, in the view of economic and materialistic monism, related only to the spiritual sphere of public life, slave, and mostly economic, social and political factors.
In the new socio-economic, spiritual, cultural, political and legal realities in all the post-totalitarian countries under pressure to not only qualitative renewal of the legislative and judicial spheres of public life, but also begin a more fundamental research and changes in legal and philosophical, theoretical, legal and practical areas of law field. Thus, activation of desire, both in theory and in practice organizes, harmonizes and unifies legal reality.
In this case, first of all, we have in mind the diverse characteristics of the system of law - cultural and civilizational, substantial and functional, the formation and social structure (national, group, personality, class, etc.). Also on one of the first places of the current, so to speak, of legal interest are generic legal associations - a natural and positive law, public and private law. They abut less common systemic association - the material and the formal (procedural) branch of law, conflict and human (social) rights.
Integrative approach to understanding of the law comes from the fact that it is unlikely there is actually quite a perfect right, and why the
members of this approach, taking various theories of the most rational, in their view, the parties withdrew the following definition. Right - a combination recognized in the community, and the protection provided by the official standards of equality and justice, fighting regulatory and approval of free wills in their relationship with each other.
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