Until now, close attention has not been paid to the essence and significance of doctrinal, scientific ideas about law in the framework of the spiritual life of Russia and the legal consciousness of society. At the same time, the legal doctrine as a system of ideas about law prevailing in society is capable of not only reflecting legal reality, but also creatively transforming all parts of the legal system of society - legal awareness, law-making, law enforcement and positive law.
The need to understand the nature of legal doctrine is determined by formal legal reasons. Firstly, scientists continue to argue in Russia regarding the concept and system of sources of law. Moreover, the disputes are aggravated by the fact that the federal law "On Sources of Law" has not yet been adopted, which would establish the types and hierarchy of sources of law in Russia, including the role of legal doctrine in the legal system.
Secondly, in Russia, among the legal acts adopted by the state, Doctrines (Military Doctrine, Ecological Doctrine, Doctrine of Information Security, etc.) have appeared, the place of which in the hierarchy of sources of law is not established by positive law.
Thirdly, according to articles 1191 of the Civil Code of the Russian Federation, art. 116 of the Family Code of the Russian Federation of 1995, art. 14 of the Arbitration Procedure Code of the Russian Federation of 2002 - the content of the norms of foreign law governing relations with a foreign element is established in accordance with their official interpretation, application practice and doctrine in the relevant foreign state. Article 38 of the Statute of the International Court of Justice of the United Nations refers to the sources of law applied by the International Court of Justice the doctrines of the most qualified specialists in the field of public law. "In other words, Russian law recognizes the legal doctrine as a source of international private, procedural and international public law.
Fourthly, the meaning and place of the legal doctrine in the system of sources of Russian law in the context of its actual application by law-making and law enforcement bodies remains uncertain.
Exist different approaches to the definition of legal doctrine. From the point of view of the etymology of the word doctrine, according to most philologists, is understood as a doctrine, theory and comes from the Latin word "docere" - to teach. But, a number of researchers find primordially Russian roots in the word doctrine, since its origin leads from the word "reached" who has come to something with his own mind. In philosophical literature, doctrine is defined as a concept, a theory that explains the world.
In Russian legislation since the early 90s. In the 20th century, a new legal act, previously unknown to Russian law, appeared - the Doctrine, which is approved by the Decree of the President of the Russian Federation and is defined as a system of principles, goals and objectives of state policy in a certain area. Legal doctrine is a system of ideas about law that expresses certain social interests and determines the content and functioning of the legal system and directly affects the will and consciousness of subjects of law, recognized as mandatory officially by the state by referring to the works of authoritative experts in law in legal acts or legal acts. practice due to their authority and acceptance.
It is possible to single out the characteristic features for it - these are systemic, rational, abstract, a reflection of reality.
By its legal nature, the legal doctrine in a rational form reflects the legal reality and has regulatory capabilities for ideological, educational impact on the will and consciousness of the subjects of law in order to convince them of the need for certain types of lawful behavior. The embodiment of the regulatory function of legal doctrine is that the latter is a source of law and acts as a form of expression and consolidation of legal norms.
Legal doctrine acts as an objectified source of law in all legal systems of the world for the following reasons. Firstly, the formal certainty of legal doctrine is achieved through the written form of expression of the works of lawyers and the popularity of the unwritten doctrine among professional lawyers and subjects of law. Secondly, the general obligatory nature of the legal doctrine follows from the authority, respect for legal scholars in society, as well as the generally accepted and generally recognized work of jurists in the legal corps and society. Thirdly, the implementation of the legal doctrine is ensured by state sanctioning in regulatory legal acts or judicial practice.
AT modern Russia legal doctrine is a source of law due to its actual recognition as generally accepted and authoritative in the creation and implementation of law, as well as formal legal consolidation as: a source of law of international private and public law.
Its ways of expression are: principles of law, legal definitions, doctrinal interpretation of the rules of law, legal constructions, rules for resolving legal conflicts, legal axioms, presumptions, maxims, rules for the preparation and execution of legal acts, legal dogmas, legal prejudices, legal positions.
Legal doctrines can be classified:
According to the form of expression - written and non-written;
In relation to religion, religious and secular;
By scope - international and national;
Depending on the method of authorization - mandatory and advisory;
Depending on the circle of creators - personalized and collective;
By distribution - universal and private;
Forms of external manifestation - draft regulatory legal acts, opinions on the interpretation and application of law in specific cases, the works of scientists recognized as binding by the state in resolving legal disputes.
The effect of legal doctrine in legal practice is associated with the presence of the following circumstances:
Emergence of gaps, contradictions, uncertainty in positive law;
The generally accepted doctrinal views in the corporation of lawyers and society;
The ways of sanctioning the legal doctrine are:
Giving the works of lawyers binding in regulatory legal acts;
Inclusion of legal doctrine in the text of a normative legal act.
The absence of state approval of the legal doctrine does not mean its impossibility of actual operation as a source of law.
The properties of the legal doctrine as a source of law are reliability, validity, generally accepted, flexibility, accessibility for subjects of law and law enforcers, authority, voluntary action, individuality, predictive and regulatory qualities. The legal doctrine has a number of shortcomings - the abstractness and generalization of the language, the danger of reflection by the legal doctrine of narrow social interests and corporate claims, rationalism and possible errors in understanding the law.
Legal doctrine can be distinguished from other sources of law according to the following criteria:
According to the form of expression, the legal doctrine acts as an unwritten source of law, while the normative legal act, the normative legal contract have a written expression;
The creators of the legal doctrine are persons who are knowledgeable in law, experts in law, while the normative legal act, legal treaty, legal precedent, judicial practice are formed by the authorities. state power, and the legal custom is formed in the actual life of the whole society;
Legal doctrine is characterized by an abstract, general character, in contrast to the casuistry, specificity of judicial practice, legal precedent and legal custom;
The legal doctrine, like the legal custom, is implemented by the subjects of law voluntarily, on the basis of the belief in the authority, generality of pre-criminal provisions, while other sources of law are observed mainly under the threat of state coercion;
The legal doctrine is formed purposefully by a corporation of lawyers, and the legal custom is formed spontaneously by society;
The process of creating a legal doctrine is lengthy and not subject to procedural rules;
The legal doctrine is distinguished by its peculiar ways of acquiring universal validity - the recognition by the state in legal acts of the binding nature of certain ideas or works of lawyers, the use by the judiciary of the works of experts in law as the legal basis of the case when making decisions, the actual operation of the legal doctrine due to its observance by subjects of law.
NON-STATE EDUCATIONAL INSTITUTION OF HIGHER PROFESSIONAL EDUCATION
"MOSCOW PSYCHOLOGICAL AND SOCIAL UNIVERSITY"
Branch in Krasnoyarsk
Faculty of Law
Correspondence department in the direction: 030900.62 Jurisprudence
Course work
discipline: "Theory of state and law"
legal doctrine
Performed:
Kochan Lyubov Alexandrovna
2nd year student, gr. 13/BYuZ-3
Scientific adviser:
Shapovalova Tatyana Ianovna,
PhD, Associate Professor
Krasnoyarsk 2014
Introduction
The history of the concept of legal doctrine, and its definition
2 Legal doctrine as a source of law in states ancient world and its role in the formation of modern legal systems
Legal families
1Romano-Germanic legal family, or the family of "continental law"
Legal Doctrine for Russian Law
1Features of the doctrines of Russian law
2The role of doctrine in the process of improving the legal regulation of public relations
Conclusion
Introduction
The relevance of the topic of this course work to reveal the main aspects of the concept of "legal doctrine", to consider the relationship of its theoretical side as a science and its application in reality. To study the history of the initial knowledge, with the help of which there was an increment of scientific knowledge about the essence of law, about the operation of law, its interpretation and application.
The term “doctrine” is widely used in legal science, but to date there has not been a single definition of its essence, functions performed and place in the system of forms of law.
In modern Russian jurisprudence, there is practically no theoretical material that considers "legal doctrine" as a link in the legal system. The legal doctrine is especially much considered in the legal systems of foreign countries.
In the Russian legal system, the legal doctrine in our time looks like the comments of the Plenum of the Supreme Court of the Russian Federation, legal scholars and expert legal centers at different stages of the legislative process. The object of the course work is legal doctrine as a complex legal phenomenon, as well as social relations that develop in the process of formation and implementation of legal doctrines in the main legal systems of our time.
The subject of the course work is to study the characteristics of the doctrine at various stages of development of the state and law. Ways to implement the doctrine in modern Russia to ensure national and public security. The purpose of the course work is a theoretical and legal analysis of the content and forms of implementation of the legal doctrine in the main legal systems, to justify the formation of the legal doctrine of the modern Russian state and law.
1. The history of the concept of legal doctrine, and its definition
1 The concept of legal doctrine
Legal doctrine is a science expressed in the form of theories, concepts, ideas. It is of particular importance for countries that belong to the Romano-Germanic legal family.
Legal doctrine as a source of law:
) has a significant impact on the consciousness of legislators;
) develops legal terms and constructions;
) focuses legal activity on the progressive development of law and the state;
) determines the trends and patterns of development of the state and law.
Legal doctrine as a source of law is the provisions, constructions, ideas, principles and judgments about law developed and substantiated by legal scholars, which in certain systems of law are legally binding. Mandatory doctrinal law provisions are commonly referred to as "the law of lawyers". Legal doctrine was the main source of continental European (Romano-Germanic) law from the time of Roman law until the 19th century, when law (state rule-making) took the place of the main source. But even after that, the legal doctrine remains one of the sources in the systems of the Romano-Germanic legal family. Legal doctrine as a source of law plays a significant role in Islamic law. It also has a certain legal significance in systems common law.
1.2 Legal doctrine as a source of law in the states of the Ancient World and its role in the formation of modern legal systems
One of the examples of legal doctrine as a source of law found in the history of political and legal thought are the teachings of Confucius (551-479 BC).
Confucius saw virtue as an extensive set of ethical and legal norms and principles, which included rules for caring for people, respect for parents, devotion to the ruler, a sense of duty and other norms of moral and legal phenomena of that time.
Soon after its inception, Confucianism became an influential current of ethical and political thought in China, and in the 2nd century. BC e. was recognized as the official ideology and began to play the role of the state religion.
In the I millennium BC. statehood arises in Ancient Greece in the form of independent and independent policies - individual city-states.
In the VI-V centuries. BC. in different policies, the corresponding form of government is more or less firmly established and developed, in particular, democracy in Athens, the oligarchy in Thebes and Megara, the aristocracy with remnants of royal and military camp rule in Sparta.
These processes are reflected and theoretically comprehended in political and legal teachings Ancient Greece.
The sages persistently emphasized the fundamental importance of the rule of laws in the life of the city. the best state system of that time it was believed that citizens should be afraid of the law as if they were afraid of a tyrant.
Pythagoras acted in the transformation of social and political legal orders on philosophical foundations in the 6th-5th centuries. BC. According to his teachings, mutual relations were to adhere to justice. The law was considered - a great value, and law-abiding - a virtue.
But the doctrine flourished as a source of law in Ancient Rome in the form of the Edicts of the Masters and the activities of lawyers.
The term "edict" comes from the word dico (I speak) and, in accordance with this, originally meant an oral announcement of a magistrate on a particular issue. In the course of time, the edict acquired the special meaning of a program announcement, as, according to established practice, republican masters did (already in writing) when they took office. The following edicts were of particular importance:
) Praetors (both urban, in charge of civil jurisdiction in relations between Roman citizens, and Peregrine, in charge of civil jurisdiction over disputes between Peregrines, as well as between Roman citizens and Peregrines) and the rulers of the provinces.
) Curul edicts, which were in charge of civil jurisdiction over commercial matters (in the provinces - respectively, quaestors).
In their edicts, binding on the magistrates who issued them, these latter announced what rules would underlie their activities, in what cases checks would be given, in which not, etc. An edict containing this kind of annual program of activity of a magistrate was called permanent, in contrast to one-time announcements on separate random occasions.
Formally, the edict was binding only on the magistrate by whom it was issued, and, therefore, only for the year during which the magistrate was in power. However, in fact, those points of the edict, which turned out to be a successful expression of the interests of the ruling class, were repeated and acquired stable significance.
The praetor and magistrates who issued edicts could not repeal, change laws, or make new laws. However, as the head of judicial activity, the praetor could give a rule of law practical significance or invalidate one or another provision of civil law.
A special source of Roman law should include the activities of Roman lawyers, which were divided into the following categories:
) Consulting work of Roman lawyers (giving advice to citizens who turned to lawyers on emerging doubts in matters);
) Protecting the interests of a citizen when making transactions, also by advice not to include any unfavorable condition, for which a lawyer often compiled a contract form, wrote other business documents;
) Manage the proceedings of the parties (but do not act as a lawyer).
Lawyers held a high official position. Roman jurists had great prestige and influence. Without legislative power, Roman jurists influenced the development of law with the authority of their scientific and practical conclusions and consultations. Roman jurists interpreted laws by separate norms, thus, lawyers in their practice actually created norms, which then acquired authority, bordering on binding.
Roman jurisprudence reached its peak during the period of the principate (I-III centuries AD). The principses were interested in preserving the original authority of the jurists, since the jurists carried out their policies in most cases. Desiring to make the lawyer the direct instrument of their policy, the principses began to grant the most prominent lawyers a special right to give official advice. The conclusions of lawyers, endowed with this right, have acquired in practice a binding value for judges.
The strength of Roman jurists lay in the inseparable connection between science and practice. They created law on the basis of resolving specific life situations with which both citizens and representatives of state power came to them.
Even then, R. David put forward the idea of trichotomy - the allocation of three main families: Romano-Germanic, Anglo-Saxon, and socialist.
The assimilation of Roman law led to the fact that even during the period of feudalism, the legal systems of European countries - their legal doctrine, legal technique acquired a certain similarity.
2. Legal families
1 Romano-Germanic legal family, or the family of "continental law"
The Romano-Germanic legal family, or the system of continental law (France, Germany, Italy, Spain and other countries), has a long legal history. It took shape in Europe as a result of the efforts of scientists from European universities, who worked out and developed (twelfth century) a common legal science for all, adapted to the conditions of the modern world.
The Romano-Germanic legal family is the result of Roman law and in the first doctrinal stage was a product of culture and had a character independent of politics. At the next stage, this family began to obey the general regular connections of law with economics and politics, primarily with property and exchange relations. In this family, the norms and principles of law came to the fore, which were considered as rules of conduct that met the requirements of morality, primarily justice.
The main form of law in the countries of the Romano - the Germanic legal family, is the law. The law covers all aspects of life, it is not considered narrowly, it is widely interpreted through doctrine and jurisprudence. Lawyers recognize that the legislative order may have gaps, but these gaps are practically negligible.
All countries of the Romano-Germanic family have written constitutions, the norms of which are recognized as the highest legal force, expressed both in the conformity of laws and by-laws of the constitution, and in the establishment by most states of judicial control over the constitutionality of "ordinary" laws. Constitutions delineate the competence of various state bodies in the field of lawmaking and, in accordance with this competence, differentiate various sources of law.
In the Romano-Germanic legal doctrine and in legislative practice, there are three types of "ordinary" law: codes, current legislation and consolidated texts of norms.
Most continental countries have civil, criminal, civil procedure, criminal procedure and some other codes.
The system of current legislation is also very diverse. Laws regulate certain areas of social relations, such as joint stock laws. Their number in every country is great. A special place is occupied by the consolidated texts of tax legislation.
Among the sources of the Romano-Germanic legal family, the role of by-laws is significant: regulations, administrative circulars, ministerial decrees.
In the Romano-Germanic family, some general principles, which lawyers can find in the law itself, and, if necessary, outside the law. These principles show the subordination of law to the dictates of justice as it is understood in this era and this moment. The principles reveal the nature of not only legislation, but also the rights of lawyers. In Switzerland, the Civil Code establishes that the exercise of a right is prohibited if it clearly exceeds the limits set by good conscience, or good words, or the social and economic purpose of the right. The Basic Law of the Federal Republic of Germany of 1949 repealed all previously issued laws that contradicted the principle of equal rights for men and women.
The legal concept of this family is characterized by flexibility, expressed in the fact that lawyers are not inclined to agree with the solution of a particular issue, which in social terms seems unfair to them. Acting on the basis of the principles of law, they act, as it were, on the basis of the powers delegated to them. Searching for law together, each in his own field and using his own methods, the lawyers of this legal family strive for a common ideal to reach a solution that would meet the general sense of justice of private interests and the whole society as a whole.
Doctrine in this legal family identifies right and law. In the past, during the period of German occupation, it played a negative role, contributed to the implementation of anti-democratic laws and substantiated the need for their implementation.
The doctrine is widely used in law enforcement, in particular in the interpretation of the law. Today, in the countries of this legal family, the law enforcer seeks to recognize the independent nature of the interpretation process, insists on the need to take into account the real relationship between it and the doctrine. Commentaries published in France, Germany and other countries are becoming more and more doctrinal, and textbooks are turning to judicial practice and legal practice. French and German styles converge.
With the development of international relations, international law has acquired great importance for national legal systems. The German Constitution of 1949 provides that the general principles international law take precedence over national laws. A similar norm in a slightly different edition appeared in the Constitution of the Russian Federation.
In the system of sources of Romano-Germanic law, there is a provision of custom, both in addition and in addition to the law. The role of custom is very limited, but is not denied by the doctrine.
The doctrine on the issue of jurisprudence as a source of German-Roman law is very controversial, but it can be attributed to the number of auxiliary sources of law. This is evidenced by the ever-increasing number of published collections and reference books of judicial practice, as well as the importance of the cassation precedent, since the Court of Cassation is the highest court, therefore, the judgment drawn up by the Court of Cassation may be perceived by other courts when deciding such cases as an actual precedent. The rulings of the French Court of Cassation and the Council of State are studied and influenced in various francophone countries, neighboring or distant, as well as in relations with other European and non-European states that are members of the Romano-Germanic legal family. It is fundamentally important that the judge does not turn into a legislator. This is what they are trying to achieve in the countries of the German-Roman legal family.
2 Anglo-Saxon legal family, or "common law" family
Unlike the state of the German-Roman legal family, where the main source of law is the law, in the states of the Anglo-American legal family, the main source of law is judicial precedent - the rules formulated by judges in their decisions. The Anglo-American "common law" includes the group of English law that has retained its wariness of supreme power, its concentration and maintenance of the prestige of the judiciary against it. The family under consideration includes, along with the United States and England, Northern Ireland, Canada, Austria, New Zealand, as well as 36 member states of the British Commonwealth.
The “common law family”, like Roman law, developed on the basis of the principle: “Law is where it is protected”. At its core, law is case law created by the courts. This leads to an increase in the role of legislative law. The common law was created by the Westminster-by-place royal courts. In the activities of the royal courts, a sum of decisions gradually developed, by which they were guided in the future. A rule of precedent arose, meaning that once a judgment was formulated, it became binding on all other judges. Therefore, the English "common law" is considered to form the classical system of case law, or law created by the courts.
In the XIV-XV centuries. in connection with the development of bourgeois relations, it became necessary to go beyond the rigid framework of judicial precedents. The role of the court was assumed by the royal chancellor, who began to resolve disputes on appeals to the king in accordance with a certain procedure. As a result, along with the common law, the “law of justice” developed.
Before the reform of 1873-1875. in England there was a dualism of legal proceedings: in addition to the courts that applied common law, there was a court of the Lord Chancellor. The reform united the "common law" and the "law of equity" into a single system of case law. Today, English law continues to be a judicial law developed by the courts in the process of solving specific cases.
For the Englishman, the main thing remained that the case be dealt with in court by conscientious people and that the basic principles of legal proceedings, which are part of general ethics, be observed. Judges of "common law" do not create decisions of a general nature calculated for the future, they decide a specific dispute.
Once a court decision is the norm for all subsequent consideration of similar cases. However, the degree of precedent depends on the place of the court in the judicial hierarchy considering the case, that is, to the specified general rule correction is required in practice. With the current organization of the judiciary, this means:
a) decisions of the highest instance of the House of Lords are binding on all courts;
) the Court of Appeal, consisting of two divisions (civil and criminal), is obliged to comply with the precedents of the House of Lords and its own, and its decisions are binding on all lower courts;
a) The High Court is bound by the precedents of both higher instances, and its decisions are binding on all lower courts;
) district and magistrate courts are obliged to follow the precedents of all higher instances, and their own decisions do not create precedents.
The rule of precedent has traditionally been regarded in England as "hard", but there are facts of rejection of this principle in relation to themselves, for example, by the House of Lords.
If the judge, when considering a case, does not find anything similar to previously considered cases, then the judge himself creates a legal norm, which means he becomes a legislator.
For the centuries-old activity of the legislative body, the total number of acts adopted by it is about 50 volumes (more than 40 thousand). Every year the English Parliament publishes up to 80 laws. At the same time, there are about 300 thousand precedents.
The problem of correlation between law and judicial practice in England is of a specific nature. There is a principle according to which the law can cancel the precedent, and in the event of a conflict between the law and the precedent, the priority is given to the law.
The English settlers in the United States brought English law with them, but it was applied in the way that the rules corresponded to the conditions of the colony.
The American Revolution brought to the fore the idea of an independent national American law, breaking with the "English past". In 1787, there was the adoption of the written federal Constitution of 1787 and the constitutions of the states that became part of the United States. In a number of states, codes have been adopted: criminal, criminal procedure, civil procedure, and references to English court decisions are prohibited. For a long time England remained a model for American lawyers. US law in general has a structure similar to that of "common law", one of the very significant differences is related to the US federal structure. States, within their competence, create their own legislation and their own system of case law. There are 51 systems of law in the United States: 50 in the states, one federal. Approximately 300 volumes of jurisprudence are published annually in the United States. Many discrepancies in the law of the country are introduced by the legislation of the states, which makes legal system The US is complex and confusing, the Supreme Courts of the States and the US Supreme Court have never been bound by their precedents. This is due to the powers of American courts to exercise control over the constitutionality of laws. The Supreme Court of the United States uses this right especially widely, emphasizing the role of the judiciary in the American system of government. The rules of US law are established by the courts, and the principles are formed on the basis of these rules.
3 Family of religious-traditional law, Muslim legal family
The legal systems of many countries in Asia and Africa do not have the unity that is characteristic of the previously described legal families. However, they have much in common in essence and form, they are all based on concepts that differ from those that dominate in Western countries. Of course, all these legal systems borrow Western ideas to some extent, but to a large extent remain true to views in which law is understood in a completely different way and is not intended to fulfill the same functions as in Western countries. It is believed that the principles that guide non-Western countries are of two types:
) the great value of law is recognized, but the law itself is understood differently than in the West, there is an interweaving of law and religion;
) the very idea of law is rejected and it is argued that social relations should be regulated in a different way.
The first group includes the countries of Muslim, Hindu and Jewish law, the second group includes the countries of the Far East, Africa and Madagascar.
Islamic law is a system of norms expressed in religious form and based on the Muslim religion of Islam.
Islam proceeds from the fact that the existing law came from Allah, who at a certain point in history revealed it to man through his prophet Muhammad. It covers all areas social life and not just those that are subject to legal regulation. Islam is the youngest of the three world religions, but is very widespread. This religion specifies what a Muslim must believe. Sharia - instructions to believers: what they should do and what they should not. Shariah means in translation into Russian "the path of following" and constitutes what is called Muslim law.
This right indicates how a Muslim should behave, without distinguishing between obligations towards his fellow men and towards God, Sharia is based on the idea of duties incumbent on a person, and not on the rights that he can have. The consequence of failure to fulfill obligations is the sin of the one who violates them, so Islamic law does not pay much attention to the sanctions established by the norms themselves. It regulates relations only between Muslims. In Islam, the state plays the role of a servant of religion - it is a religion of law.
Islamic law has 4 sources:
) The Quran is the holy book of Islam;
) sunna, or traditions associated with the messenger of God;
) ijmu, or a single agreement of Muslim society;
) qiyas, or judgment by analogy.
Customs are not included in Islamic law and have never been considered as its source. In the countries of Muslim law, there was and still is a dualism of judicial organization: along with special religious courts, other types of courts have always functioned, applying customs or legislative acts of power.
Hindu law constitutes the second system of the religious-traditional family and is one of the oldest in the world. This is the right of the community, which in India, Pakistan, Burma, Singapore and Malaysia, as well as in countries on the east coast of Africa, mainly in Tanzania, Uganda and Kenya, professes Hinduism. One of the main beliefs of Hinduism is that people are divided from the moment of birth into social hierarchical categories, each of which has its own system of rights and duties and even morality. The caste structure of society is the basis of the philosophical, religious and social system of Hinduism. Each person must behave as prescribed by the social caste to which he belongs.
The customs are very varied. Each caste or sub-caste follows its own customs. The assembly of the caste resolves locally all disputes by voting, relying on public opinion. The government is allowed to make laws, but judicial precedents and legislation are not considered sources of law. The judge cannot apply the law to the fullest extent, he must reconcile justice and power in all possible ways. Judicial practice in this legal family does not act as a source of law at all.
During the period of colonial dependence, Hindu law underwent significant changes. In the field of property law and the law of obligations, the traditional norms were replaced by the norms of "public law". Family and inheritance law and other customs have not changed. The 1950 constitution rejected the caste system and prohibited discrimination based on caste.
Features of the systems of Chinese and Japanese law. The Chinese have a negative attitude towards the idea of law with its rigor and abstractness. Until the beginning of the twentieth century. it was believed that by using abstract norms, lawyers create obstacles to the compromises on which society is based.
The idea of a "society without law" was in China before the 1911 revolution. Externally, Chinese law was Europeanized and entered the family of legal systems based on Roman law. At the same time, traditions that prevailed in life continued to exist, such as Confucianism - observance of rits (rules), disrespect for the court, contempt for people who know the law. For many centuries, China did not know the legal profession. The court was created by administrators, guided by the advice of officials belonging to the hereditary caste, with the aim of reconciliation, they turned to the family, clan, neighbors, and noble persons. There was no legal doctrine. Not many laws were passed in 1949 alone. Law was based on Marxist teaching, as it was interpreted by Chairman Mao. Under him there was no principle of legality, the cult of personality dominated. In 1978, the Constitution of the People's Republic of China was adopted, and a number of regulations were issued. Many scholars argue that legislation in China cannot be implemented until the number of courts, judges, and lawyers increases substantially and the traditional hostility to laws changes.
The modern legal system of Japan in its main features was formed in the Meiji era, before that, for several centuries, Japan was under the strong influence of China. The people did not know the laws, but obeyed them. In the Meiji era, feudal ownership of land and formal distinctions between estates were abolished, and administrative freedom to choose a profession and place of residence was carried out. The first Constitution of Japan in 1889 was drawn up according to the Prussian model. Especially significant changes in Japanese law occurred after World War II, when the Constitution was adopted in 1946. American law has had a significant impact on the legislation in the field of regulation of trade and the functioning of industrial companies. Under his influence, changes were made to other branches of the current legislation (family, inheritance, etc.). The sources of civil and commercial law in Japan, along with codes and individual laws, are recognized as existing customs and moral standards. Intensively developed pension legislation, legislation on the protection of environment, labor law.
The modern judicial system of Japan includes the Supreme Court, the highest territorial, family and primary courts. The Prosecutor's Office in Japan is part of the Ministry of Justice. Overall, Japan has moved closer to the idea that the rule of law necessary condition dominance of justice and at the same time, a way of life is preserved there, paying tribute to customs and traditions.
4 Family of socialist law
The socialist legal family - was the third legal family, singled out mainly on an ideological basis. They retained a number of features of the Romano-Germanic legal family. The rule of law here has always been regarded as a general rule of conduct. The terminology of legal science dates back to Roman law.
With a significant similarity with continental law, the legal systems of socialism had significant features due to their class character. The only source of socialist law was at the beginning, the revolutionary movement, and later the normative legal acts, in respect of which it was declared that they express the will of the working people - the majority of the population, and then the entire people, which is led by the communist party. The socialist revolution was made with the goals of building socialism. Socialism was never built. Adopted regulatory legal acts, most of which were secret and semi-secret orders and instructions that expressed the will and interests of the party and state apparatus.
There was practically no private law, only public law. law was associated with public policy, was provided by party power and the coercive power of law enforcement agencies. Law was not based on the principle of justice.
Judicial practice was assigned the role of a strict interpretation of law. Judges at that time were supposed to have independence and obey only the law, but in fact the court remained an instrument in the hands of the ruling class, ensured its dominance and protected, above all, its interests. The judiciary did not control the legislative and executive branches of government.
On the socialist legal systems of Europe, Asia and Latin America constituting the "socialist camp", a significant influence was exerted by the first legal system, which was considered socialist - the Soviet one. The national legal systems of foreign socialist countries such as China and North Korea are varieties of socialist law.
3. Legal doctrine for Russian law
1 Features of the doctrines of Russian law
According to Russian legal science, modern Russian law belongs to the Romano-Germanic legal family. The validity of this position is confirmed by the similarity of systems of law, the dominance of a normative legal act in the system of sources of law, the separation of private and public law, and a number of other factors. But when studying legal doctrine, the Russian legal system has its own specific features.
Essential Features Russian law in the legal literature is associated with the historical conditions for the development of the Russian legal system. The Russian legal system came from Byzantium and was further transformed by the Marxist-Leninist period of the Soviet era.
There is intense debate about whether legal doctrine is the source of law in the Russian state. Although all normative acts are based on scientific data, the latter, in turn, are not spelled out in them, which means they cannot be a source of law. It is also known that many Russian laws brought to life by the theoretical developments of legal scholars. To understand the role of legal doctrine in the Russian legal system, it is necessary to study the manifestation of the doctrine at the main stages of the formation and development of domestic law. More ancient sources Russian law (treaties between Russia and Byzantium under Oleg, Russkaya Pravda) carried the essence of truth and law. The ideological influence on the political and legal processes in Russia was carried out by various reforms, for example, the baptism of Russia, the reforms carried out under Ivan the Terrible, Peter I, Catherine II, Alexander II, as well as the period of the formation of the Soviet state and post-Soviet democratic transformations.
The doctrinal influence on the content of Russian law is first manifested in connection with the introduction of Christianity in Russia. In support of this, a number of facts can be cited when new legal phenomena arose that corresponded to the legally significant provisions of the Christian faith.
For example, before the introduction of Christianity in Russia, it was considered justified to kill the perpetrators in the event of a blood feud of relatives, and the death penalty was also allowed. This was contrary to the Christian commandment that the life given to man by God cannot be taken away from him by anyone other than God.
"Russkaya Pravda" also contains examples of the direct inclusion of religious and legal norms in the current legislation. Thus, articles 21 and 38 reproduce the provision from the laws of Moses that the murder of a criminal caught at the scene of a crime is justified. Religious and legal influence is also manifested within the framework of procedural law. An example of this is the use of such a method of proof as the “oath by the cross”, which confirms the truth of the testimony of a participant in the process who converted to Orthodoxy. Refusal to accept Christianity entailed certain legal consequences - change legal status, social and even property status.
3.2 The role of doctrine in the process of improving the legal regulation of public relations
Under the legal regulation in legal science, it is customary to understand the effective, normative and organizational impact on social relations carried out with the help of a system of legal means in order to streamline, protect, and develop them in accordance with social needs. This impact is carried out through the mechanism of legal regulation - a set of legal means taken in unity, with the help of which the state exercises legal influence on social relations in the direction it wants, as well as special procedures for such influence.
In the process of formation of a legal society in Russia, approaches to the relationship between the state and the individual have changed. These changes are manifested in the legal regulation of the statuses of both the individual and the state. Now a person, his rights and freedoms should come first, and the legal regime with its restrictive functions should act primarily for the state.
The following features of the rule of law are distinguished:
a) popular sovereignty;
) the rule of law, namely the legal organization of the power of the state, which involves: limiting the power of state bodies by the rules of law, which are based on public will; direct, immediate action of the law as a fundamental legal document that can be created both by representative bodies and directly by the population;
) legal protection personality of a person from the arbitrariness of officials.
The Constitution, the Basic Law of the state, establishes the basic principle of the organization of power. In the Russian Federation, it is the principle of separation of powers. It was worked out in the process of development of democratic states, by the whole world practice.
Its essence is that:
) a democratic political regime can be established in a certain state only if the division of power between independent state bodies is observed;
) distinguish three main functions of state power: legislative, executive, judicial;
) each of these functions should be carried out independently by the relevant state authorities, since the combination of legislative, executive and judicial functions in the work of one state body will certainly lead to its excessive concentration, which creates the possibility of establishing a dictatorial political regime;
) each state body in the process of implementing one of the three functions of state power interacts with state bodies of other branches of power. This interaction is manifested in the limitation of each other by them. This scheme of relationships is called the system of checks and balances. It is the only possible organization of state power in a modern democratic state.
At the federal level of the organization of state power in the Russian Federation, the system of checks and balances in accordance with the Constitution has the following structure.
) The legislative body - the Federal Assembly - adopts laws, and also determines the regulatory framework for the activities of all state authorities, influences the work of executive authorities through parliamentary methods. An important tool for influencing them is the possibility of raising the issue of trust in the Government. The Federal Assembly, to one degree or another, participates in the formation of the Government and the judiciary of the Russian Federation.
) The executive body - the Government of the Russian Federation - implements executive power in the state. The government is responsible for enforcing laws and, by interacting with the legislature in various ways, influences the legislative process in the state. For example, it has the right of legislative initiative. If bills require the attraction of additional federal funds for execution, they must receive a mandatory opinion from the Government. The President of the Russian Federation has the opportunity to dissolve the legislative body of the state, which is a counterbalance, if he has the right to raise the issue of no confidence in the Government from Federal Assembly.
) Judicial bodies - the Constitutional, Supreme and Supreme Arbitration Courts of the Russian Federation - have the right of legislative initiative in their area of competence. These courts deal with specific cases within the limits of their competence, the parties to which are federal bodies of other branches of state power. In the system of separation of powers at the federal level, the main role is played by the Constitutional Court of the Russian Federation.
Conclusion
In that work term paper a study was made of the characteristics of the doctrine at various stages of development of the state and law. From this study it can be seen that the origins of the legal doctrine lie in the teachings of Confucius, then widespread use in ancient Rome and Greece. AT modern world great importance is attached to legal sciences, although there is no single concept of legal doctrine.
Also in this course work, we examined 4 main types of legal families, their features, customs and the impact of legal doctrine on their formation and development. An analysis of the content and forms of implementation of the legal doctrine in these basic legal systems was carried out to justify the formation of the legal doctrine of the modern Russian state and law. From which we can conclude that the legal doctrine is especially widespread in countries classified as Romano-Germanic and Anglo-Saxon legal families. In some legal families, only at the present time are the legal sciences beginning to develop, for example, in the socialist legal family. In the Muslim legal family, all legal laws are based primarily on religion and customs.
Currently, one can see significant changes in the legal system of Russia, which previously belonged to the socialist legal family. Russia has been proclaimed a democratic state, which makes it possible to predict the convergence of its legal system with the Romano-Germanic legal system. In Russia, litigation began to develop, as well as the role of case law.
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Legal doctrines at certain historical stages also acted as sources of law. For example, the scientific works of the most authoritative Roman jurists had the force of sources of law. Their texts and explanations were used by the courts in resolving legal cases. In English courts it was also not uncommon for judges to use the writings of well-known jurists as sources of law. Legal doctrines as sources of law are known to Hindu and Muslim law, etc.
Currently, legal doctrines, works, opinions of famous legal scholars in most countries do not act as direct sources of law, but are sources of legal knowledge, an ideological source of law and play a large role in the development of legal systems, legal culture of any country. The role of legal views, concepts, doctrines is extremely important in the formation of a model of legal regulation, in the development of legal concepts, and the improvement of legislation. Analytical works and explanations of scientists play an important role and assist in the process of implementing legal norms.
In the modern world, legal doctrine is sometimes used as a direct source of law in states with religious legal systems, in particular, in Muslim countries. Therefore, some authors consider these religious writings as a separate, independent source of law. At present, in a number of Muslim countries, the texts of sacred religious books - the Koran, Sunnah, Qiyas - are still quite common.
45. Religious Scriptures
Church norms occupied a significant place among the norms of feudal law. The dogmas of the church covered relations not only between clergy, but to a large extent extended to all members of society. The courts strictly followed their instructions. A significant part of family, hereditary relations fell under the influence of religious canons. On their basis, cases of heresy, witchcraft, etc. were considered.
Gradually, the scope of the norms of church law narrowed due to the strengthening of secular power.
At present, religious texts have lost their former significance as sources of law, but they have not completely lost it. In a number of Muslim countries, the texts of sacred Muslim religious books are still quite common sources of law. The main source of Islamic law is the code of religious and ethical norms of the Koran and some other scriptures. They contain provisions that are given a generally binding character.
46. The concept and features of a regulatory legal act
A normative legal act is a source of law in all legal systems of the world in view of its systematization, accuracy, certainty, mobility, and also in view of the fact that it is provided with a state character. In the Romano-Germanic legal system, this is the main source of law. It is defined as an act that formalizes, establishes, changes or abolishes the rules of law. In the Law of the Republic of Belarus "On Normative Legal Acts of the Republic of Belarus", a normative legal act is understood as an official document of the established form, adopted within the competence of an authorized state body, an official or by a referendum in compliance with the procedure established by the legislation of the Republic of Belarus, containing generally binding rules of conduct, designed for an indefinite circle of persons and repeated use.
This definition indicates the following features of a normative legal act:
· Normative legal acts are issued by the competent authorized bodies. State bodies adopt acts of a strictly defined type;
· Regulatory legal acts contain generally binding rules of conduct that are more or less general in nature;
· Normative legal acts must be documented, have a strictly defined form;
· If the executor of the act is not specified, then it applies to an indefinite circle of persons;
· Regulatory legal acts are aimed at regulating public relations of a certain type;
· Regulatory legal acts have legal force, which is understood as the property of legal acts to actually act, actually generate legal consequences;
· Normative-legal acts are state-imperious in nature, their execution is ensured by the coercive power of the state.
The term "doctrine" is used in jurisprudence in several meanings:
1) as a philosophical and legal doctrine, theory; 2) as the thoughts of prominent legal scholars on various theoretical and applied problems of legal science; 3) as scientific works of the most authoritative researchers in the field of state and law; 4) as comments on legislative acts (codes, laws).
So, legal doctrine - these are ideas, concepts and theories recognized by the legal community that are used as an aid to determining the content of legal norms.
For the first time, the professional opinion of prominent lawyers was actively used as a source of law in ancient Rome. When considering controversial issues, the parties involved in the process turned to recognized lawyers (Guy, Paul, Ulpian, Modestin, Papinian, etc.) with a request to express their opinion on certain issues regarding the proper application of law. The judge considered such thoughts as "a universally binding rule of conduct - the source of Roman law."
The legal doctrine played a significant role in the formation of Romano-Germanic law, it was formed under the influence of well-known legal scientific schools (glossators, post-glossators), the cells of which were the first European universities. Thanks to their activities, the doctrine for a long time remained the main source of law in the Romano-Germanic legal family. She also significantly influenced the formation of Anglo-Saxon law, which was based on the works of such well-known lawyers as Brakton, Glenville, Cock, Blackstone, etc.
On the early stages the development of religious legal systems was of decisive importance religious doctrine. It was understood in a broad sense: both as the writings of theologians, and as the opinions of various academic schools, and as views on ideas regarding the understanding and interpretation of religious texts.
Today, legal doctrine refers to secondary, persuasive (authoritative) sources of both Romano-Germanic and Anglo-Saxon law. Special meaning it stores in countries religious legal systems. The doctrine provides a critical analysis of law, identification of gaps and conflicts in law and determination of ways to overcome them.
In the XX century. In Europe, the practice of forming the doctrine by the highest judicial instances (primarily the constitutional and supreme courts) has spread, which made it possible to combine fundamental theoretical knowledge and significant practical legal experience.
In Ukraine, the Constitutional Court of Ukraine, which teaches its own understanding of the spirit of the Basic Law of Ukraine and current legislation, is an important subject for the formation of legal doctrine. The doctrinal provisions enshrined by him in legal positions are strengthened due to the general binding nature of the decisions of the body of constitutional jurisdiction. In turn, the Constitutional Court, when making its decisions, relies on the opinions of prominent legal scholars, the conclusions of leading legal scientific institutions and educational institutions.
Impact of Doctrine on Law Enforcement is manifested, in particular, in the fact that law enforcement agencies in their practice rely on doctrinal interpretation of legislative acts. Its authority lies not in formal obligatoriness, but in the persuasiveness of the proposed conclusions and the high qualification of those who carry out such an interpretation. Legal doctrine also has a significant impact on practical jurisprudence through scientific and practical comments to acts of legislation(CC, CC, etc.), which serve as important guidelines for law enforcement practice.
In addition, legal doctrine acts as a secondary, convincing source of law, providing additional legal reasoning when solving specific cases. So, in the Austrian court they still refer to the doctrinal views of G. Kelsen.
In the XX century. are becoming increasingly important holistic systematized doctrines which have developed as a result of many years of academic and practical activities of lawyers, on which the courts and other law enforcement entities directly rely. For example, in the countries of Anglo-American law, these include the doctrine of the obligatory observance of precedent (stare decisis), the doctrine of the supremacy of parliament. Numerous judicial doctrines are actively applied in the US jurisprudence, in particular the "political question" doctrine, according to which the courts cannot decide cases in which political issues are violated, since they are subject to resolution by the political branches of government (legislative and executive).
In Ukraine, the legal doctrine also plays important role in the regulatory process. Its influence lies in the fact that the legal doctrine:
1) creates a thesaurus (dictionary) of legal concepts and categories, which is used by the legislator;
2) performs methodological basis preparation of bills;
3) reflected in legislative acts, provided with state support.
For example, the Constitution of Ukraine is the embodiment of the philosophical and legal ideas of the priority of human rights, the rule of law, the rule of law, and the separation of powers. General theoretical and sectoral doctrines are embodied in legal prescriptions and at the level of ordinary (current) legislation. Consequently, the legal doctrine is reproduced in the sense of the primary sources of law and thus acquires a normative, universally binding character.
Legal doctrine as a source of law - these are provisions, constructions, ideas, principles and judgments about law developed and substantiated by legal scholars, which in certain systems of law are legally binding. Mandatory doctrinal legal provisions are commonly referred to as "jurists' law". Legal doctrine as a source of law plays a significant role in Islamic law. It also has a certain legal significance in systems common law.
In Russia, by tradition, legislation and science legal doctrine not recognized as a source of law;
- legal doctrine includes not only scientifically proven and reliable knowledge of law, but also probabilistic judgments that do not have the properties of truth and validity. In other words, the legal doctrine, being the result of human mental activity, is ideological in nature and often expresses certain ideals and values;
- legal doctrine expresses the interests of certain strata of society. Thus, the concept of natural human rights, the social contract arose in the depths of the bourgeois class that was emerging in Europe - merchants, industrialists, bankers, whose initiative was fettered by feudal orders of inequality of estates and royal absolutism. This or that legal doctrine can be used to justify the actions of state bodies that are contrary to the constitutional order;
- legal doctrine is the main and primary source of law. The legal doctrine officially recognized in a given society permeates the legal system, the mechanism of legal regulation.
Legislation is a reflection of the ideas prevailing in a given society about the essence and purpose of law in society.
The legal doctrine fills the content of legal education and forms the legal consciousness of both professional lawyers and citizens.
The legal doctrine has a regulatory nature and legal significance when it is part of the legal consciousness of the subject.
Rule of law: concept, signs.
Rule of law- this is a universally binding, formally defined rule of conduct, established or recognized (sanctioned) by the state, regulating social relations and provided with the possibility of state coercion.
The features of the rule of law include:
1. Compulsory
2. Formal certainty - expressed in writing in official documents, with the help of which it is intended to clearly define the scope of the subjects' actions.
3. Expression in the form of a state-power prescription is established by state bodies or public organizations and is provided by measures of state influence - coercion, punishment, stimulation
4. Non-personalization - it is embodied in an impersonal rule of behavior that applies to a large number of life situations and a large circle of people; the state addresses the rule of law not to a specific person, but to all subjects - individuals and legal entities.
5. Consistency
6. Repeated or repeated action
7. Possibility of state coercion
8. Representative-obligatory character
9. Microsystematic, i.e. the orderliness of the elements of the legal norm: hypotheses, dispositions, sanctions.
Types of rules of law:
1) depending on the content, they are divided into:
· initial norms that define the foundations of legal regulation of social relations, its goals, objectives, limits, directions (these are, for example, declarative norms proclaiming principles; definitive norms containing definitions of specific legal concepts, etc.);
general rules that are inherent in the general part of a particular branch of law and apply to all or most of the institutions of the relevant branch of law;
special rules that relate to individual institutions of a particular branch of law and regulate any particular type of generic social relations, taking into account their inherent features, etc. (they detail the general, adjust the temporal and spatial conditions for their implementation, ways legal impact on the behavior of the individual);
2) depending on the subject of legal regulation (by industry)- for constitutional, civil, administrative, land, etc.;
3) depending on their nature- material (criminal, agrarian, environmental, etc.) and procedural (criminal procedural, civil procedural);
4) depending on the methods of legal regulation are divided into: imperative (containing authoritative instructions); dispositive (containing discretion); incentive (stimulating socially useful behavior); recommendatory (offering the most acceptable behavior for the state and society);
5) depending on the time of action - permanent (contained in laws) and temporary (the presidential decree on the introduction of a state of emergency in a certain region in connection with a natural disaster);
6) depending on the functions- on the
regulatory(prescriptions that establish the rights and obligations of participants in legal relations, for example, constitutional norms that establish the rights and obligations of citizens, the president, the government, etc.) and protective(aimed at protecting violated subjective rights, for example, the rules of civil procedural law, designed to restore the violated state with the help of appropriate legal remedies).
The structure of the rule of law.
Hypothesis- an element of the rule of law, containing indications of life circumstances, in the presence of which the second element is activated - the disposition. In essence, the hypothesis contains an indication of legal facts, in the presence of which legal relations arise, change or terminate. The hypothesis in many cases begins to be formulated with the word " if". For example, if a person dies, his heirs receive the right to inherit.
Disposition represents the core of the norm, its main part, in which the measures of possible and (or) proper behavior of participants in the social relation regulated by this norm are fixed. In the disposition are fixed subjective rights, duties, prohibitions, recommendations, encouragement, through which the rules of conduct are formulated.
Sanction- such a structural element of a legal norm, which contains indications of measures of state coercion, influence on a person who has violated the requirement of disposition. Sanctions, depending on the content of the consequences, can be punitive or punitive, when additional encumbrances, punishments (for example, imprisonment in criminal law), remedial (aimed at restoring the violated state, for example, compensation for damages in criminal law) are imposed on the offender. civil law); there are so-called nullity sanctions (aimed at recognizing actions as legally indifferent, invalid, for example, recognizing a transaction as invalid).
It is believed that a legal norm should contain all three structural elements. At the same time, in the norms designed for continuous action (primarily in constitutional law), the hypothesis is not a necessary element. Without a disposition, any norm looks meaningless, since the norm remains without the very rule of conduct. Finally, a legal norm will be powerless if it is not supported by a sanction, coercive measures.