The structure of the theory of law.
In another textbook M.N. Marchenko emphasizes: «Talking about the name of science as represented on the sign identifies it should be borne in mind, too, that the industry knowledge and academic discipline is not everywhere and always called and called the theory of law, or general theory of state and law, as it is often called.
In some cases, it is associated, for example, with what used to be called an encyclopedia of law».At one time, a famous Russian lawyer G.F. Shershenevich, studying the nature and content of the theory of law, wrote: «At the end of the beginning of the XVIII-XIX century encyclopedia of law is a compound of the elements of the legal, philosophical, and historical. Its content in this, as in the following, the period sees two major trends. On the one hand, is noticeably reduced for the traditional disciplines «overview of the different parts of the positive law. And on the other, «was nominated sketch of the basic concepts of law». Encyclopedia of Law began to approach the «philosophy of law».
«Despite the fact that in Russian and Western European universities the discipline initially received considerable attention, as it is often called the» science of sciences «and considered that» it is a necessary introduction to the study of specific legal science», yet the consistency of the encyclopedia of law as an independent branch knowledge and discipline suffered from a number of well-known at the time legal scholars questioned. Over time, the Russian encyclopedia of law in name and content gradually «moved to the theory of law», and in the West, along with her and under her some influence gained by such discipline as modern jurisprudence.
L.I. Petrazhitsky stressed: «Law is a very ancient science and scientific profession. The existence and development of this abundant academic profession is a typical companion legal life is at such stages of the development of culture, when the emergence and development of scientific and theoretical knowledge and research, the procuring and developing scientific world for its own sake, for the sake of knowledge and explanation of phenomena is not and out of the question».
Famous Russian legal scholars, Doctor of Law, Professor N.I. Ma- tuzov and A.V Malko believe that «the subjects of the theory of state and law are: 1. general laws of the origin, development and functioning of the State and Law, 2. the nature, type, form, function, structure and mechanism of action of the state and law, the legal system, 3. major state-legal concepts common to all legal science». Kazakh team of authors of textbooks on the theory of state and law says: «The subject of a special study of the theory of state and law are the general laws of historical development and the functioning of the state and law, the unity and conformity of types of state and law, laws governing the transition from one type of government and the rights to another, a combination of the state and in fact the right of their social purpose and function, the ratio of the type and form of the state and law, particularly the formation and functioning of the state mechanism and system of law, the development of democracy, rule of law, the formation of law and civil society».
Doctor of Law, Professor A.S. Ibraeva states: «Legal Science is a system of complete and comprehensive knowledge of the law and the state, which is based on a set of concepts, categories, and the scientific principles that reflect the patterns of occurrence, development and operation of data phenomena. Jurisprudence (Law) is a system of special public knowledge, in and through which the theoretical and applied development (learning) state-legal reality». In legal literature, the subject of the theory of state and law is ambiguous. So, Doctor of Law, Professor Andrey Denisov by subject of theory of law means «common patterns of occurrence, development and functioning of the state and the law itself, and specific patterns of occurrence, development and functioning of the state and the right of every individual in the class (usually use the term «historical») type».
Doctor of Law, Professor V.V. Lazarev convinced that «the subject of a general theory of law and the state, as follows already from the name of this branch of science, is the legal and public events, patterns of their origin, development and ultimate fate.
In the subject of the science and discipline, respectively, obviously, should include objective social laws defining specific properties, features, attributes and rights of the state, their relationships and interactions, their tasks and role in relation to other social phenomena».In another textbook V.V. Lazarev notes that «the subject of a general theory of law and state law and the state act as a social phenomena, laws of their origin, function, and their class-political and universal nature, content and form, the legal relations and communications, especially the legal awareness and legal culture». Many legal scholars on the subject and system concepts in the theory of state and law distinguish theory and the theory of the state law. Specifically, they believe that the theory of the state is a system of two theories: the theory of state and law theory. The author of this tutorial is also of the position. Outstanding legal scholar, Doctor of Law, Professor V.S. Nersesyants says: «This shows that defined the general theory of law and state common subject and method of legal science in general, it is both the subject and method as every law of science (discipline). Subject and method of the general theory of law and the state is the general theory and methodology of the entire law as unified, independent, system integrity of science. Subject matter and methods of the general theory of law and state, so are the common scientific foundation of all law, its subject matter and methodology, its system and structure, its ontology, epistemology and axiology».
The notion of essential characteristics also captures common objects and phenomena. The system of concepts of the theory of the state consists of the following concepts: the state, the type of state, the functions of the state, the state apparatus, form of government, the mechanism of the state, etc. The system of concepts of law includes the following concepts: the right type of law, sources of (forms) law, the legal system, legal system, the legal, law, rule of law, the offense, legal liability, legal culture, legal nihilism, etc.
2. The methodology of the theory of state and law. The term «methodology» is derived from the Greek words methodos - «the way to something,» and logos - «a word, concept, teaching.» It is used as a theoretical justification of methods used in science learning. A method is a way to achieve a goal, solve a particular problem, the set of modes or operations of a practical or theoretical understanding of reality.
Doctor of Law, Professor M.I. Abdulaev and S.A. Komarov categorically state that «the methodology of legal science is a complex entity, including a system of different techniques, and logical methods and means of knowledge of certain legal phenomena. The methodology of the study of law has three elements: 1) philosophical understanding of the phenomena, and 2) scientific methods, methods of research, and 3) private legal research methods, specific only for legal disciplines».
«With the development of the science complex problems with understanding the essence of the methodology of scientific knowledge never ran. Place, role, significance of scientific methodology has been and remains the subject of research, not only philosophers, but also a wide range of representatives from the natural and social sciences. Methodological aspects in the field of legal science are of crucial importance for a number of reasons, both utilitarian and global scale».The methodology of science is: a) part of the science that studies the methods of research used by this science, and b) are themselves used methods.
According to JD, Professor M.N. Marchenko, «methodology of theory of law is a system of special methods, principles, and methods for the study of the general laws, the formation and development of state-legal phenomena. For the theory of law peculiar existence of not one any single admission, principle or method of study of the state and law, and their systems together. Many of them are widely used in other sciences. This applies particularly to the study of the principles of public-legal and other matter, and philosophical approaches».
Theory of State and Law has the following methods:
1. General science (sets the philosophical direction) - the most common approaches to the study, the universal principles of knowledge shared by all sciences. Before embarking on any of the cognitive process, it is necessary to decide on some of the issues that are of fundamental importance: whether there is a real objective world, on whether there any laws, whether they are knowable, etc.
a) materialism (from the Latin «materialis» - is real, based on the assertion that the world exists independently of our consciousness. This philosophical direction that comes from the fact that the world is material, there is an objective, outside and independent of consciousness, that matter is primary, no one is created, there is forever. Consciousness, thinking is a property of matter, is usually approved knowable world and its laws;
b) idealism, based on the assertion that the world exists because of our consciousness;
c) the dialectic - the theory of development of being and thinking. In this case, the following principles: the principle of common development, the principle of the universal connection of phenomena, the principle of a comprehensive review of the facility, and the law: the unity and struggle of opposites; transition from quantitative to qualitative changes; negation. Dialectics is a universal method of knowledge and demands into account in the process of cognition of reality universal inter-dependence and the constant development of the phenomena.
d) metaphysics - a phenomenon seen as fixed.
«Thus, the dialectic method ofjurisprudence, principles, techniques and tools of dialectical study (the dialectic of unity and struggle of opposites as a source of self-reality, the ascent from the abstract to the concrete, the unity of thinking and being logical and historical, dialectical methods of analysis and synthesis, etc.) are used in their legally refracted and specified form, as methods and means of legal knowledge, and the means of achieving the legal expression of the dialectic, that is, specific dialectic specific legal subject».
2. Particularly-scientific (common to specific science) - these are the rules, techniques, methods of direct provision of specific knowledge. They are diverse and depend on the level and direction of the research and scientific exploration. Particularly-scientific discussed below methods are called is very conditional, because they are used in many sciences, not only humanitarian. This name emphasizes not so much at all the private nature of various methods of scientific understanding of reality as is the ratio of the latter to the methodological basis of so- called scientific method.
a) system method: The system being studied and the relationship between its elements, we study the appearance of the object, its formation and further development;
b) special techniques borrowed from other fields, are used only in respect of the research;
c) private law, used only in legal studies: Comparative Legal (compare effects on the region, time, and other branches of the law) the formal legal.
As rightly noted academician, Doctor of Law, Professor S.S. Alekseev: «The specific legal ideas give rise to a new start to approach the place and purpose of legal science and legal experts in the legal and social life, and some facets of the concept of law».
«The methodology based on the theory that has had a profound impact on the practice. In this practice has the ability to exercise significant influence over the content and progress of the theory. Interconnections of theory, methodology of scientific knowledge, their influence on each other, the total dependence on social practice queries and science, to some extent, the autonomy of their development can not categorically define the primary one and the derivation of others. Hierarchy in its general sense in the above chain is not only impossible, it is not necessary, because, in our opinion, in each case, depending on the continuously updated at the moment the goals and objectives established a hierarchy».
A method is a set of methods and techniques necessary for the study of the subject. According to Doctor of Law, Professor A.B.Vengerov, «methodology is objectively defined object of study, which follows from the general conceptual approaches, the level of scientific knowledge, a part of every science, its essential element. The methodology is a system of methods, a set of methods and techniques of research, knowledge about them».
«However, the political and ideological diversity, various philosophical and ideological positions and approaches to the study of state and law are not exclusive, but on the contrary, strongly suggest to obtain objective knowledge, comprehensive information about the study of matter, the use of a number of private and common principles and techniques characteristic of not only for the theory of law, but also for the humanities and academic disciplines».
Methods of the theory of state and law is techniques, methods, approaches that are used by it for the knowledge of his subject and obtaining scientific results. We have already noted that all methods are classified as: general method (metaphysics and dialectics), scientific methods (analysis, synthesis, system approach, the functional approach) particularly-scientific methods (specific sociological, statistical, cybernetic methods) and private law practices (formal-legal, comparative legal methods).
The main method of theory of law is the dialectical method. Theory of law in this case is studied using the three laws of dialectics:
1. Law of the transition of quantitative changes into qualitative means the state in the development process accumulates changes to their system.
2. The law of negation means that any phenomenon, denied today, maybe tomorrow realized.
3. Law of the unity and struggle of opposites means that in the same place at the same time there may be events, mutually exclusive. It should be noted that the methods of the theory of state and law are varied, but together they contribute to the knowledge of such complex phenomena of society, the state and law.
Known legal scholars of CIS emphasize that «the methods of the theory of state and law is the techniques, methods, approaches that are used by it for the knowledge of his subject and obtaining scientific results». Russian jurists writing team selects a method such as a predictor, which is defined as «a set of tricks to make evidence-based predictions about the future state of legal phenomen».
3.