Source and form of law. Traditionally, in the legal literature, when analyzing the problem of the relationship between the source and the form of law, two different approaches are used. From point of view first approach these two concepts are intertwined. So, for example, in the Soviet legal literature in the 60s, it was generally proposed to abandon the concept of “source of law”, replacing it with the concept of “form of law”, which allows a more meaningful analysis of those real forces (of a state-imperious nature) that give rise to law in its national specifics. Others, in order to avoid misunderstanding when considering the form of law, as a rule, when using this term, nevertheless pointed to the term “sources of law”, however, enclosed it in brackets, which also spoke of the identity and equivalence of these concepts. As an example, we can cite the definition of the form of law given by M.I. Baytin. He notes that "the form (source) of law is understood as certain ways (techniques, means) of expressing the state will of society." At the same time, the author of the monographic study notes that “the correct solution to this issue (the relationship between the form and source of law - author) can be found by considering law from the point of view of its state-volitional and normative features.” Further, the scientist believes that only with the help of the form (source) is “giving the state will an accessible and obligatory character, officially bringing this will to the executors. Through the form, the right, as it were, receives a "start in life", acquires legal force. As can be seen in this case, the understanding of the source of law in formal legal terms is defended. It is in this case that these categories coincide, other factors (sources) generating rights are not taken into account. Thus, under the source of law they mean mainly state activity, identifying it with formal legal sources in the form of laws, decrees, resolutions, judicial and administrative precedents, i.e. with the law (in the collective sense) - with what officially endows at a given time and in a given place with legal (imperious-coercive) force. And the "power-coercive" force itself is interpreted as an initial, law-forming and law-determining factor, as a forceful (and violent) primary source of law.
Second approach differs, as mentioned above, in a pluralistic point of view, analyzes a whole system of law-forming factors, as well as the mechanisms and degree of their impact on the formation of national law. So, for example, pointing out the difference between the categories “form” and “source”, V.E. Chirkin notes that in traditional legal systems ah, this difference manifests itself in the most obvious form. In the customary law of a number of African countries, established customs and traditions act as a form of law, which are converted into legal norms as a result of the sanctioning activities of state power. In Islamic law, the form of law is the theological doctrine set forth in the works of major theologians, and the source of law is the activity of the courts in the application of these books.
Consequently, the sources of law generally reflect a set of factors that create law, influencing the formation and development of the form of law, its content, as well as the legal form of regulation of social relations. In turn, the evolution of the state and law throughout the history of human development testifies to the existence of a whole variety of forms and sources of law. Each legal system develops specific ways of external organization and expression of law (i.e. form of law), as well as its own structural-hierarchical system of factors that determine the content and forms of expression of law (i.e. . sources of law).
Legal form and form of law. The concept of "legal form" should not be identified with the category "form of law", since they do not match either in content or in their meaning. Their similarity is manifested only in the fact that, firstly, they act as one-order phenomena, i.e. are forms; and, secondly, they correlate with the same type of matter - legal.
The difference lies in the fact that the form of law organizes the legal matter itself, i.e. is a way of internal organization and external expression of law, and the legal form reflects the legal means and methods of mediating non-legal relations through the legal regulation of these relations. Thus, the legal form is used to explain the relationship of law with other social phenomena and processes, while acting as a legal form of organization of economic, political, social, religious and other relations. Considering the difference between the concepts of "legal form" and "form of law" D.A. Kerimov rightly notes that “the first can act as a form economic development, forms public policy, forms of scientifically based management of social processes, forms of humanistic or moral ideals of an individual or society, as for the second concept, it can be considered both as a form of an expedient legal system, and as a form of a part of the whole (system, structure and elements of law), and as a form of systematization of legislation (incorporation and codification), and as a form of implementation law (legal relations and other ways and means of the impact of legal norms on regulated social relations) ... It is impossible, for example, to identify economic relations with their mediation in legal relations or the form of external expression of a legal norm (or its structure) with the forms of its implementation.
Law, as a relatively independent phenomenon, influences political, economic, spiritual and other non-legal phenomena and processes through normative and regulatory influence. It is in this context that law manifests itself as a form (legal form) in relation to any non-legal objects (non-legal content, social institutions, relations), fully mediating them and actively influencing them.
Types of forms of law
AT modern theory law, the main forms of law most often include legal custom, legal precedent, legal act and legal contract.
Legal custom. Customary law or a set of legal customs is the oldest form of law that preceded the law, arose before the emergence of the state. According to many researchers, it was on the basis of customs that all the national legal systems of the world were originally built. Almost all the first laws (the Code of King Hammurabi - Ancient Babylon, the Laws of the twelve tables - Ancient Rome, the Law of Manu - ancient india etc.) were codes of customary law, tk. the period of the formation of law and the state was characterized by the coexistence of old, tribal, and new, political and legal institutions, the interaction of which preserves, in essence, the pre-class perception of custom, as well as the mechanisms of its action and forms of external expression (myths, epics, proverbs, sayings, etc.). .d.) . This fact reflects the fact that in general the process of maturation of legal and state institutions long and goes into deep historical layers.
However, before early XIX centuries, legal custom was not recognized as an independent form of law, the state was the only source and form of positive law, it was believed that only it could act as a force that attached mandatory importance to certain rules of conduct. Only thanks to the works of H. Thomasius, the historical school of law of G.F. Pukhta, F.K. Savigny this species forms of law began to be analyzed as the original, historically early form of positive law. So, for example, in his fundamental work "Customary Law" G.F. Pukhta argues that customary law has an independent meaning, not in the least determined by the will of the legislator, which has primacy, precedence over the law. Noting at the same time that the basis of customary law is rooted in the natural commonality of the convictions of an entire people. Therefore, mores, religion, customs, in fact, are also the original form of law. In this regard, he highlights mediocre"creation of law", through law and legal activity, and immediate through the people's consciousness (legal consciousness), without which, as G.F. Pukht, there would be no state, no lawyers, no laws, and, consequently, no law at all.
These provisions made it possible to argue that customary law, both in human history and in modern legal systems, is one of the forms of objectified legal consciousness. Developing this idea, the Russian lawyer N.M. Korkunov noted that “when I act according to custom, in the custom I observe, my legal consciousness is expressed in accordance with the legal consciousness of all others who observe the same custom, since otherwise it would not fit into the custom and therefore the custom expresses a legal norm, not only by me accepted by one, but by all who belong to the community where the custom exists. In other words, the basis of its obligatory nature lies not in the prescription of a custom, but in its generality. Another researcher at the beginning of the 20th century noted that the understanding of a legal custom only as the sanctioning by the government of a spontaneously formed rule of behavior suffers from one-sidedness, since it does not reflect the connection between custom and the nature of legal understanding.
Indeed, many authors define customary law as a traditionally established rule of people's behavior that has developed as a result of its long-term application and has passed into a habitual form of behavior, or as customary legal behavior of people in a particular society, local community, which has a subconscious, automatic character. In other words, by customary law, as a rule, they mean the historically established rules of conduct, sanctioned by the state authorities, which make the latter generally binding. However, the basis for the obligatory nature of customary law, as E.N. Trubetskoy, is not only their sanctioning of state power or their historical prescription, but also, mainly, the authority of the social environment, subject to custom. Therefore, for the recognition and protection of a custom, only the sanction of the state is not required, on the contrary, acts of state power are based on existing customs, and in popular legal consciousness are equal to it in terms of the strength of the regulatory impact. It follows from this that legal customs are not so much the most ancient regulatory system that has given way, due to the development of civilization and state-legal forms of organization public life, its place for legislation, how much a special form of law, based on the legal consciousness of citizens, is also valid in modern national legal systems. In this regard, the words of A.B. Vengerov, who in his course of lectures on the theory of state and law noted that “the idea that customary law is just an ancient form of law that gives way to other, more advanced forms, that bourgeois and socialist formations require exclusively statutory (written , positive - auth.) law that customary law is dying out in these societies are very approximate.
However, it is obvious that in modern states legal customs have lost their dominant position in the formation of the system of law. However, today it can be stated that the legal custom is not a frozen form, which since ancient times has had an “unconscious”, “automatic” impact on the formation of the national legal environment, but, on the contrary, a constantly developing phenomenon. The development of the latter mainly proceeds in three channels: firstly, most of the legal customs are “absorbed” by legislation (that is, they are sanctioned by state power) or by case law (as is the case in Anglo-Saxon legal systems); Secondly, within the framework of the legal life of society, a new “layer” of customs (constitutional, judicial, administrative, etc.) is being formed, which, not being sources of law, have a significant impact on the development of the latter; third, part of the legal customs continues to operate in pure form(for example, in regulation marriage and family relations, in the private law sphere, etc.).
At one time, R. David, dwelling on these trends in the development of legal custom, singled out three main types of it, depending on their role in the formation and development of the legal system. customs second legem(in addition to the law) facilitating the understanding and understanding of the meaning of those terms and phrases of the law or a court decision that are used in a special way from the generally accepted meaning (for example, abuse of the right, reasonable price, etc.). This type of legal customs, in his opinion, play the most important role in the legal system. customs praeter legem(other than the law) apply in cases of gaps in the law. Customs contra legem or adversus legem (against the law) which are against the law. In such cases, i.e. in the event of a conflict between custom and law, the law usually prevails.
It should also be taken into account that legal customs as a form of law is an essential factor in the process of succession and reception of law. Under continuity understand the preservation and reproduction of previous forms of law and methods, models of legal interaction of citizens when updating their content. By themselves, the forms of law, the established models and methods of legal communication of citizens are more stable in relation to socio-economic, political and ethno-cultural changes. Continuity, in this regard, involves the perception of the most successful, historically tested political and legal experience, the transfer and assimilation of forms and methods of positive socio-legal and ethno-political interaction that develop in the life of different generations. Therefore, customary law usually serves continuity factor legal development of society, ensures the stability of the main legal and political institutions, the adaptation of newly formed norms to the established legal life of a given society, and during periods of transformation of state and legal order, they prevent a socio-political split in society, guarantees the processes of slow ordering of social relations, minimizes conflicts related to with the crystallization of a new legal and political system that meets modern conditions and future tasks.
In turn under reception of law understand the borrowing of content, some forms of law, as well as ways of legal regulation of social relations from the legal systems of other countries or from past development experience. Of course, the reception of law does not mean blind copying and mechanical transfer legal material, forms and content of law. It is rather a process of perception, social and cultural adaptation of the received law to the specific conditions of the national legal environment.
An important problem is how to distinguish, single out legal customs from the array of customs existing in society. by the most simple solution This issue is a positivist approach to understanding the nature of a legal custom, it is noted that a legal custom becomes in those cases when the state authority recognizes such a status for it, i.e. authorizes it and enforces it by legal enforcement. However, with this approach, the emergence, change and termination of the legal force of a custom is not associated with the very nature of the custom. On the contrary, another, broader approach derives the legal essence of a custom from its own nature, which is determined not so much by its connection with the state, but by the presence of certain features and traits in it. So, according to the domestic lawyer G.F. Shershenevich, legal custom must meet the following requirements: firstly, contain norms that are “based on legal conviction”; Secondly, do not contradict reasonableness; third, do not destroy good morals; fourthly“not to have error as its foundation. It is possible to speak about the formation of a legal custom only when, the researcher notes, when “the basis of a uniformly repeated norm is legal consciousness or popular belief”, which is then recognized and consolidated by state power. The difficulty lies in the fact that, in relation to legal custom, it is impossible to fix quite accurately the moment from which time the action of one or another norm expressed in them begins, since the custom is formed imperceptibly, gradually, and it is impossible to distinguish any definite line between the still crystallizing and the already established legal custom. At the same time, customary law has a distinctive feature; it is formed and changes depending on the locality and group of persons.
legal precedent. Legal precedent has much in common with custom. So, like a legal custom in judicial and administrative practice, norms can be formed regardless of the will of the legislator. In addition, these rules are always addressed to individual, particular cases, the solution of which becomes a model by analogy with which similar disputes are resolved. legal issues. Russian lawyer Malyshev generally saw in judicial practice private form of customary law. However, this is not the case, although the judicial precedent has similar features with legal customs, including the law, nevertheless, it is an independent form of law.
Legal precedent is also referred to as judicial precedent - this is a narrower understanding of this form of law, since case law (system common law) is formed not only through judicial, but also administrative practice, although in the basis of common law was originally and mainly laid down and still remains the decisions of the highest judicial bodies(Royal Court in England, the Supreme Court in the USA, etc.). The system of case law is characteristic of Anglo-Saxon (common) law, it is especially developed in England, the USA, Canada, Australia and other English-speaking countries. So, for example, in England the principle of strict adherence to precedents has developed, according to which the authority of old precedents is not only not lost over time, but, on the contrary, increases significantly. Such strict adherence to an already formed decision reflects the English proverb: “ The judge is the slave of the past and the despot of the future". In other words, the judge, when making a decision on a particular case, is completely dependent on previous court decisions, by analogy with which he formulates a new model (rule) that becomes mandatory for future court cases on similar, similar issues.
Thus, under legal precedent it is customary to understand the decision (written and unwritten) of a judicial or administrative body in a particular case, which is taken as a model in the subsequent consideration of similar cases. Legal precedent is the most mobile form of law, responding almost “instantly” to the needs of the legal regulation of certain relations, since direct legislation is an overly cumbersome and slow apparatus, whose activity often lags behind life and does not have enough time to satisfy emerging needs quickly enough. In addition, by general rule in all modern states, the court cannot refuse to consider a case under the pretext of incompleteness, ambiguity, inconsistency of existing laws or the absence of a rule of law governing disputed relations. Therefore, the court is not limited to the application of laws alone. Paying attention to this fact, E.N. Trubetskoy noted that “indisputably arising controversial legal issues, quite often cannot wait for their decision by the legislator; before he begins to solve them, in some cases, incidents, they are resolved in addition to his participation, by practice. And the decision made in one controversial case becomes a precedent for a number of other homogeneous cases. In this way, Rules are created by precedents... Legislation, even the most perfect, cannot foresee everything and contains inevitable problems, which are compensated judicial practice» .
For example, in this way Ancient Rome almost all were formed civil law(jus gentium) which replaced the ancient jus civile. Ensuring constitutional equality between men and women in the American legal system was also served by a judicial precedent (the Rawlinson case). It is also noteworthy that England owes the destruction of slavery as a phenomenon not to law, but again to judicial precedent, since at the end of the 12th century the court ceased to recognize the ownership of one person over another, ceasing to resolve disputes about slavery, which caused the process of abolishing the latter in England. Has its own history of case law in Russia. Thus, the Supreme Court of the USSR, considering the case of Martynyuk, who destroyed socialist property, while receiving severe burns, ruled that Martynyuk has the right to compensation for the harm caused. It was after this case that the institution of compensation for harm appeared in the domestic legal system. These circumstances allow us to say that case law, one way or another, influenced the development of almost all legal systems.
Unlike other forms of positive law, legal precedent has a number of features:
· firstly, the doctrine of precedent (stare decisis) determines special meaning courts in the formation and development of law. Whereas in other legal systems judges merely apply the rules of law, in the common law system decisions or judgments are made that simultaneously proclaim or create law, i.e. act as a legislator. In this regard, judicial precedents are not of the same legal nature. Some, declarative, repeat already existing rules of law, others give an interpretation, and still others, creative ones, fill in the gaps in the legislation and thus create new normal rights ;
· Secondly, the common law system, in comparison with other legal systems, has a “casual” character (case law), i.e. characterized by the predominance of "judicial" law over the statutory (statutum - legal act, resolution). This affects the fact that in case law there is almost no systematization of law, or rather codified legislation. Therefore, the number of precedents on the basis of which the legal system operates is quite large. For example, in England alone there are more than 500 thousand precedents, and in the USA 350 volumes of court decisions are published annually, which greatly complicates the very practice of law. Therefore, if unified codes are created here that regulate certain types of relations, then they are not identical to European codes, since they are not a single legal act, but “simply the fruit of consolidation more or less successful, and not the basis for the development and development of a new law, as it is in the countries of the Romano-Germanic legal family.
· third distinguishing feature system of case law is related to the fact that the main importance is given to procedural law compared to material law. Therefore, as the French lawyer R. David notes, the common law system in its essence “is not the law studied at the university, not the law of principles. On the contrary, this is the right of proceduralists and practitioners ”in this regard, the courts in their daily practice pay increased attention not so much to the judicial decision itself, but, due to established traditions, to the order, procedure for making this decision;
· fourthly, in the system of separation of powers, the judiciary has a fairly high level of independence and autonomy. Her independence extends both in matters of organizing her inner life and in the administration of justice itself;
· fifth feature of the common law system is the accusatory nature of the trial. As the modern researcher M.N. Marchenko, “unlike other legal systems, where the court is entrusted with the duty of both collecting and evaluating the collected evidence (according to Western terminology, the “inquisitorial” process), the trial in common law countries has a different, accusatorial character (accusatorial). . In accordance with the criminal procedural and civil procedural norms, the obligation to collect evidence is assigned to the parties - participants in the process, while the court (judge) remains neutral, hears and evaluates the arguments of both parties ";
· At sixth, in case law there is no such division into private and public. Here, historically, there has been a division into common law and the law of equity. In this context, under common law(common law) understand the legal system that has developed on the basis of customs and generalizations of the practice of royal courts, in turn under justice(Equity law) refers to the part of the case law that consists of the decisions of the chancellor's court. In addition, there is no sectoral division, and the rules of law themselves are not divided into imperative (imperious-subordinating nature) and dispositive (permissive nature).
And finally, the judicial precedent has a special structure; it consists of several parts. The first is the so-called ratio decendi, which is an obligatory part for further application in resolving disputes, i.e. these are the principles underlying the judgment. It is this principle that becomes a model, by analogy with which court decisions will be applied in the future. The second part of the judgment is obiter dicta(in passing noticed, said), this is a conclusion based on facts, the existence of which was not the subject of consideration by the court, or those facts that are relevant to the case, but do not constitute the essence of the decision. In addition, precedents are divided into mandatory and persuasive. Thus, if the ratio decidenti is a binding precedent, the obiter dicta can become such only because of its persuasiveness.
Legal act is the most common form of positive law today. The leading place of this form of law, considered the most perfect, clear and accessible in comparison with other forms of law, is determined by the ever-increasing role of the state in regulating social processes. Legal act covers the whole variety of legal norms and is an official written document containing generally binding rules of conduct (rules of law) established or recognized (sanctioned) by the state power, thereby providing the possibility of state coercion. However, in addition to the mechanism of coercion, the government uses an extensive system of right-stimulating and right-restricting means to ensure a certain public order, socially useful and fair interests, rights and freedoms of citizens.
This type of form of law is characterized by three main features: state-volitional character, normativity, power-regulatory nature. State-volitional character means that the current norms of law express the state-formed will of the whole society, due to the socio-economic, demographic, political, spiritual and other conditions of the life of the people. Regulatory character reflects the fact that the state will of the whole society is manifested in Everyday life nothing else than a system of official written documents - legal norms issued by the state in strictly defined forms and in sign systems. Power-regulatory nature consists in the fact that the totality of legal norms included in a particular legal act is a state-legal instrument of regulatory influence on social relations. Moreover, the consequence of this impact for the participants in public relations is the emergence of certain legal consequences. In other words, the state imparts a legal character to certain types of social relations, which entails the emergence of rights and obligations for the subjects of these relations, provided for in the legal norm.
The legal act as a form of positive law is widespread in continental Europe and is typical for the Romano-Germanic legal system. It also has a number of features:
· firstly, legal systems in which the main form of positive law is a normative legal act have a pronounced doctrinal, conceptual character. The construction of this legal system is based on certain fundamental legal principles, abstract legal concepts, theories and doctrines. Essential for the formation and development of law is played here by “general legal principles”, “principles of interpretation”, “doctrinal provisions” about the essence of law, legal order, legality, etc., which, in the words of the French lawyer J.-L. Bergel are not direct, but indirect sources of law. Thus, not only legal practitioners “participate” in the formation of law, but also a corps of legal scholars who form the principles and priorities of legal development. I note this feature, R. David writes that, in contrast to the common law system, where “legal norms are developed by the courts when resolving controversial issues in relation to each specific, specific case”, then in the system of Romano-Germanic law, in the process of formation and development of law, not from specific controversial cases or cases, but from the definition of general principles and legal doctrines, on the basis of which not only certain rules of law are created, but also specific cases are resolved;
· Secondly, this is the special meaning of the law in the system of sources and forms of law. Thus, it is believed that the best way to establish a fair, appropriate decision is not an appeal to previous legal practice, but an appeal directly to the law. At the same time, the rule of law is a factor that ensures the effectiveness of the application of law, clarity and unity of the entire legal system, where, despite the vastness of the territory, the difference in ethno-national needs and interests, local local legal customs, legal norms are understood and evaluated in the same way. At the same time, the legal doctrine in this system of law implies not only the formal consolidation of the rule of law in the system of forms of positive law (other forms of law - legal precedent, customary law - are additional, auxiliary in the legal regulation of social relations), but also the existence of a system of political and legal guarantees the rule of law (the principle of separation of powers, constitutional control, etc.), as well as a number of other factors (a certain level of legal awareness of citizens, their level of material well-being, awareness, etc.).
· third the peculiarity lies in the fact that this type of legal systems has, in contrast to common law systems, a strict division of law into private and public. The criterion for such a division is, first of all, interest. Public interest has its expression of socially significant interest, in turn, private law reflects private interest, which is found in the property and non-property interests of individuals;
· fourth the difference between legal systems, where a normative legal act is the main form of positive law, lies in the clearly expressed systematized, codified nature of law, expressed in the strict ordering of all existing legal material, combining this material into a single, harmonious and internally coordinated system;
· fifth, a normative legal act, unlike other forms of positive law (judicial precedent, legal custom), is always drawn up in the form of an official state document that has the following mandatory attributes: the name of the act (law, decree, resolution); the name of the body that adopted this act (parliament, president, government, local government).
As a result of the issuance of regulatory legal acts, a national system of legislation is formed, which determines the rights and legal obligations of citizens, state and public organizations, officials. In turn, the system of legislation lays the foundation for law and order in society, establishes legal guarantees and legal mechanisms their provision and protection.
Normative contract(or contract with normative content) is also an independent form of positive law. It has much in common with a normative legal act, however, its specificity is that on the basis of a normative agreement, normative legal acts are formed that regulate the entire system of legal relations between the parties to this agreement. Agreements with normative content are classified on the basis of scope, community of parties into international, interstate, domestic, they are also founding and ordinary, standard and current.
It is important that any normative contract has a number of distinctive properties that distinguish it from common systems forms of law: firstly, the contract contains norms of a general nature, i.e. does not have a personalized, individual-one-time character, but implies rules of conduct of a general nature; Secondly, presupposes the voluntariness of its conclusion; third, is based on the common interests of its participants and agreement on all existing provisions of the contract; fourthly, is based on the equality of the sides; fifth, implies mutual responsibility of the parties for failure to comply with improper execution obligations assumed; At sixth, the contract is always legally enforceable.
In modern legal systems, normative contracts are becoming more and more widespread in various branches of law. So, for example, the Labor Code of the Russian Federation assumes such a type of agreement with a normative content as a collective agreement concluded between the administration of an enterprise, on the one hand, and a trade union organization representing the labor collective of this organization, on the other. This agreement establishes the principles of regulation of labor relations, rights and obligations between these parties. Model agreements are also very common, which establish the mandatory basic conditions for certain agreements (for example, in the field of intellectual property, federal relations etc.).
In addition to the above-mentioned forms of positive law, the following are also distinguished as forms in religious (traditional) legal systems:
· sacred texts - these are various kinds of sacred texts, the content of which formulates religious and legal rules that are generally binding. For example, the Bible, Torah (Pentateuch of Moses) in Jewish law; Quran, sunnah in Islamic law;
· doctrinal statements, formulated in books of a religious and legal nature, which contain a professional interpretation of sacred texts, interpret the main religious and legal provisions and requirements scriptures. So, for example, in the system of justice in the Muslim legal system, a judge, when considering a specific case, practically never refers directly to the Koran or the Sunnah, but refers to an authoritative and generally recognized author who gives a doctrinal interpretation of the scripture.
CHAPTER 5. REGULATION OF THE LAW
The source of law can be considered:
■ in the material sense - these are social relations that need legal regulation;
■ in the ideal sense, it is a set of legal ideas that determine the content of the rules of law, i.e.
Legal consciousness (legal ideology);
■ in a special legal sense - this is a form of law, i.e. a way of external expression and consolidation of the content of the legal norm. In the theory of state and law, the concept of "source of law" is considered as a form of law. Types of forms of law:
1. A legal act (NLA) is a legal act adopted by a competent law-making subject and containing the rules of law (law, by-law, statute). It is the main source of law in the Romano-Germanic legal system.
2. Legal custom - a historically established rule of conduct sanctioned by the state; Sanctioning is carried out by referring to the custom without textual fixing of the rule in the normative legal act, otherwise the custom turns into a legal act. It is the main source of law in the countries of equatorial Africa and Oceania.
3. A normative contract is a voluntary agreement reached by the subjects of lawmaking, containing the rules of law binding on the parties. If the agreement is concluded not by the subjects of lawmaking, it is subject to state registration (an agreement on the delimitation of joint powers between the federal center and the subjects of the federation) or ratification (an international treaty).
4. Legal precedent (judicial or administrative) is a decision in a specific legal case, which later becomes a model for resolving similar cases. It is the main source of law in the Anglo-Saxon legal system.
5. Doctrine (legal science) - these are the works of legal scholars, on the basis of which the law enforcement body makes a decision on a specific legal case. Common in Anglo-Saxon and Muslim legal systems.
6. Legal consciousness - a set of ideas, feelings, emotions, on the basis of which law enforcement acts are adopted. It is the only source of law during revolutions, when the old law has already been destroyed, and the new one has not yet been created.
7. Religious texts are now characteristic of Islamic law; this is the Koran - a sacred book containing the commandments and teachings of Allah, the Sunnah - a collection of biographies of the Prophet Muhammad, who brought to life all the precepts of Allah. The Bible is the source of law in the Vatican. Generally religious texts are sources of law in theocratic states.
8. General principles of law - the fundamental principles of the legal system that determine the essence and purpose of law in society. They are used to overcome gaps in the law.
Thus, there is a variety of sources of law. In the Romano-Germanic legal system, as sources of law, a normative legal act (the main source), a legal custom, a normative contract and general principles rights.
The concepts of "form of law" and "source of law" are closely interrelated, but do not coincide. If the form of law shows how the content of law is organized and expressed outside, then the source of law indicates the origins of the formation of law, a system of factors that determine its content and forms of expression.
If we proceed from the generally accepted meaning of the word “source” as any beginning or foundation, root and cause, starting point, then in relation to legal phenomena, three factors should be understood as the source of law:
1) a source in a material sense (material conditions of society, forms of ownership, interests and needs of people, etc.);
2) source in the ideological sense (various legal teachings and doctrines, sense of justice, etc.);
3) the source in the formal legal sense - this is the form of law.
There are four main forms of law:
- a normative act is a legal act containing the rules of law and aimed at regulating certain social relations. (Constitution, laws, by-laws);
- legal custom is a historically established rule of conduct contained in the minds of people and has become a habit as a result of repeated application, leading to legal consequences (certain property relations can be regulated by business customs);
- a legal precedent is a judicial or administrative decision on a specific legal case, which is given the force of the rule of law and which is guided by the resolution of similar cases (predominantly common in countries of a common legal family - England, USA, Canada, etc.);
Regulatory agreement - an agreement between law-making subjects, as a result of which a new rule of law arises (for example, the Federal Treaty of the Russian Federation of 1992).
The concept and types of political parties. Place and role of political parties in the political life of society
Political parties is a public organization whose goal is to come to power as a result of an election campaign.
1) ruling party is the party whose members form the government. A) In a parliamentary republic, the ruling party is the one that occupies maximum amount parliamentary seats. B) In a presidential republic - the party that brought the president to power. B) mixed.
Ruling party: 1. Members of the ruling party are recruited into the government 2. Put their party programs in the basis of accepted legal norms. 3. Develops a program line for the development of society for the period of his stay in power. The ruling political party should not replace the state. Its decisions should not have power over the entire population of the country.
2) opposition party- 1. Parliamentary - not having a majority there. She forms a shadow cabinet (a group of people who oversee the activities of the president from the opposition)
Recognition of political diversity in the Russian Federation is enshrined in Article 13 of the Constitution of the Russian Federation. Multi-party system - a system of power based on the interaction and "balances" of parties and associations. Being one of the types of public associations of citizens, political parties are a tool through which political activity citizens, their participation in the public life of the country.
One can speak of a multi-party system only when more than two political parties participate in the electoral struggle for power. The principle of voluntariness is fundamental for the creation and functioning of any political parties.
The laws of the Russian Federation establish restrictions on the right to membership in political parties for judges, employees law enforcement, military personnel and civil servants. The Constitution prohibits the creation and activities of parties and other public associations whose goals or actions are aimed at forcibly changing the foundations of the constitutional order, violating the integrity and undermining the security of the state, inciting social and national hatred.
Place and role of political parties in the political life of society.
Political Party- it is a formalized political organization with its own structure (leading bodies, regional branches, ordinary members), expressing the interests of certain social classes, social strata, groups, uniting their most active representatives, setting, as a rule, its task to conquer and retain power for implementation of a certain program of social, economic, political transformations, achievement of certain goals and ideals, as well as the implementation of direct and feedback links between society and the state.
Besides, Feedback helps the party to fulfill a unique role - identifying, coordinating, bringing to the political level real, specific, partial interests that exist or are newly emerging in society. Acting on several levels, parties link society and the state. They act as an essential and sometimes decisive element of the political system of society. The principal side of the activity of the parties is their ideological impact on the population, a significant role in the formation of political consciousness.
The most important features of a political party are:
Participation in political life, including in public administration;
The desire to seize state power and institutions that implement state power;
Communication with the electoral system - participation in the elections of representative bodies of power;
Form of organization social groups and segments of the population;
The bearer of a certain ideology and a form of political education for the masses;
A means of recruiting and promoting individuals to become political leaders.
These features determine the functions of political parties, among which the following are determined:
a) social representation;
b) the struggle for state power;
c) ideological;
d) personnel;
e) political socialization, i.e. the inclusion of the individual in politics and ensuring stability and continuity in the development of society;
f) the development and implementation of a political course, which, however, depends on the position of the party in political system- Whether it is ruling or oppositional.
There are close ties and various forms of interaction between political parties and the state. So, both the state and political parties are political organizations. They are directly related to the concept of state power: only the state directly exercises state power, and parties aim at coming to state power. At the same time, they retain great autonomy in relation to each other. But under a totalitarian regime, the state apparatus and the party apparatus often merge, and one party is not only the ruling one, but also the state one.
The concept and types of social norms. Correlation between the norms of law and morality
Social norms are rules of behavior of a general nature, which are formed in relations between people in society in connection with the manifestation of their will, and are provided by various methods of social influence.
Types of social norms by scope:
Economic: regulate social relations; associated with the interaction of forms of ownership, with the production, distribution and consumption of material goods;
Political: regulate relations between class, nations, nationalities; associated with their participation in the struggle for state power and in its implementation;
Religious: regulate relations in the sphere of religion, between different religions, specific cult activities based on the belief in the existence of God;
Environmental: regulate relations in the field of environmental protection.
Types of social norms according to regulatory features:
moral norms;
Norms-customs;
Rules of law;
Corporate norms are rules of conduct that regulate relations within various non-governmental organizations and between their members.
33. Correlation of forms and sources of law. Types of sources of law.
The term "source of law" has a long history, it is traditional. However, the word "source" is so ambiguous that its special legal meaning is specified by the additional word "form". Let's consider these concepts in isolation. Let's start with the concept of a source of law, which has three meanings. In the material sense, the source of law is those social, political, economic conditions that determine legal norms. Thus, these are the social relations from which law arises. The term "source of law" in the ideal sense means legal consciousness. In this case, legal consciousness is understood as the desired right, ideas about the future right. In fact, the ideal meaning is inseparable from the material, since the wishes of a certain right are connected with the existing conditions. In the formal (legal sense), the source of law is the form of expression of the normative will. It is the formal meaning of the term "source of law" that is equated with the term "form of law". Thus, the source (form) of law is the rules of social practice objectified in a certain way, which, due to objective reasons, are recognized by society and the state as mandatory. The rules created by society and approved by the state by giving them some external shell, protected by state coercion, are the source (form) of law.
When studying the interaction between the concepts of “form of law” and “source of law”, it is first necessary to turn to generally recognized and not so debatable forms of law. In this case, we are talking about the following forms of law: normative act, legal custom, legal precedent and normative contract.
a normative act is a legal act containing the rules of law and aimed at regulating certain social relations. These include: the constitution, laws, by-laws, etc. A normative act is one of the main, most widespread and perfect forms of modern continental law in Germany, France, Italy, Russia, etc.;
legal custom is a historically established rule of conduct contained in the minds of people and has become a habit as a result of repeated application, leading to legal consequences. Customary law is chronologically the first form of law that dominated the epoch of feudalism. And although legal custom is used in a number of modern legal families (traditional, religious), in the Russian legal system the role of legal custom is insignificant (for example, according to Article 5 of the Civil Code of the Russian Federation, certain property relations can be regulated by business customs);
A legal precedent is a judicial or administrative decision in a specific legal case, which is given the force of the rule of law and which is followed in resolving similar cases. It is distributed mainly in countries of the common legal family - Great Britain, USA, Canada, Australia, New Zealand, etc. All of these states publish court records from which information on precedents can be obtained. The recognition of a precedent as a source of law means the recognition of the law-making function of the court;
normative contract - an agreement between law-making subjects, as a result of which a new rule of law arises (for example, the Federal Treaty of the Russian Federation of 1992; a collective agreement that is concluded between the administration of an enterprise and a trade union).
In modern conditions, the role of normative agreements in Russia is noticeably increasing. They are becoming more and more widespread in the constitutional, labor, civil, administrative and other branches of law.
In order to more clearly understand its essence, it is necessary to distinguish between a normative contract, on the one hand, from simple contracts, and on the other, from normative legal acts.
Unlike simple contracts (contracts-transactions), normative contracts are not of an individually-one-time nature. If two firms enter into a particular deal, they do not create a new rule of law (this rule is already in the Civil Code of the Russian Federation). The participants, concluding a normative contract, create a new rule of conduct - a new rule of law, acting as law-making subjects.
In contrast to the regulations government bodies, normative contracts are the result of an agreement between equal subjects on activities of their common interest.
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They must necessarily be objectified, expressed outwardly, contained in various forms, which are the way of their existence.
Forms of law It is a way of expressing outside the legal rules of conduct.
Legal form and form of law
Before analyzing various forms law, it is necessary first to consider the relationship between the concepts:
- form of law,
- legal Form,
- source of law.
under legal form almost all legal means involved in the legal regulation and mediation of certain social processes, in solving social problems (for example, legal forms of economic regulation), the category "legal form" is used primarily to structure social ties and show the role of law as a formal legal institution in its relationship with the socio-economic, cultural, moral and political content - diverse social relations.
Forms of law- only specific "reservoirs" (S.S. Alekseev), which contain the rules of law; the form of law is designed to streamline the content of law, to give it the properties of a state-imperious character.
In the literature there are two main points of view on the problem correlation of the concepts "source of law" and "form of law":
- the named concepts are identical;
- the concept of "source of law" is broader than the concept of "form of law".
The latter point of view is the dominant one today. Indeed, if we proceed from the generally accepted meaning of the word "source" as "any beginning or foundation, root and cause, starting point", then in relation to legal phenomena, three factors should be understood as the source of law:
- source in the material sense (material conditions of society, forms of ownership, interests and needs of people, etc.);
- source in the ideological sense (various legal teachings and doctrines, sense of justice, etc.);
- source in the formal legal sense - this is a form of law.
Types of form of law:
- legal custom;
- regulatory legal acts (NLA) of state bodies;
- normative legal acts (NLA) of public organizations (with the sanction of the state);
- legal (normative) contract;
- precedent.
legal custom - this is a historically established rule of behavior contained in people and has become a habit as a result of repeated application, leading to legal consequences. Customary law is chronologically the first form of law that dominated the epoch of feudalism. And although legal custom is used in a number of modern legal families (traditional, religious), in the Russian legal system the role of legal custom is insignificant (for example, according to the Civil Code of the Russian Federation, certain property relations can be regulated by business customs).
Normative act is a legal act containing the rules of law and aimed at regulating certain social relations. These include: the constitution, laws, by-laws, etc. A normative act is one of the main, most widespread and perfect forms of modern continental law in Germany, France, Italy, Russia, etc.
Normative contract
- an agreement between law-making subjects, as a result of which a new rule of law arises (for example, the Federal Treaty of the Russian Federation of 1992; a collective agreement concluded between the administration of the enterprise and the trade union). Unlike simple contracts (contracts-transactions), normative contracts are not of an individually-one-time nature. If two firms enter into a particular deal, they do not create a new rule of law (this rule is already in the Civil Code of the Russian Federation). The participants, concluding a normative contract, create a new rule of conduct - a new rule of law, acting as law-making subjects.
Unlike normative acts adopted by state bodies, normative contracts are the result of an agreement between equal subjects regarding activities of their common interest.
legal precedent - this is a judicial or administrative decision in a specific legal case, which is given the force of the rule of law and which is guided by the resolution of similar cases. It is distributed mainly in countries of the common legal family - Great Britain, USA, Canada, Australia, New Zealand, etc. All of these states publish court records from which information on precedents can be obtained. The recognition of a precedent as a source of law means the recognition of the law-making function of the court.