Doctrinal nature of law. Religious monuments (ancient religious texts)

State coercion can manifest itself in different ways. Changing views, attitudes, principles is carried out by ideological and mental coercion; it suppresses a person’s own opinion, transforms his attitude towards the world around him, thus influencing his behavior. Another “opposite” type of coercion is coercion that limits the freedom of action of people, causes moral and physical suffering and can cause harm to individuals or categories of citizens or even lead to their death.

In the literature, one often encounters the following statement: “regulation that is not secured by state coercion will lose its legal quality,” that the power of law lies in its coercion and, therefore, the norm that is not accompanied by coercion is “powerless.” The scientific and theoretical justification for the incorrectness of the conclusion that the effect of law is associated exclusively with the coercive power of the state belongs to H.A. Gredeskulu. Representatives of the sociological school in jurisprudence and many other jurists paid attention to this. As Georg Jellinek notes: “A norm is effective if it has the power to influence as a motive, to determine the will.” One can hardly agree with the statement that coercion plays a decisive role in this. Most people do not commit illegal acts not because of fear of punishment or any manifestation of coercion, but because of their own beliefs, views,

which are formed under the influence of many factors, including the state.

Based on the essence of legal authorization, we can formulate its concept - these are all cases of the state giving legal force to existing and newly created social norms, conditioned by the requirements of social development, falling within the circle of state interests and as a result acquiring a legal character.

1. Alekseev S.S. General theory of law. M., 1982. T. 2.

2. Bratus S.N. Legal responsibility and legality (Essay on the theory). M., 1976.

3. Vitchenko A.M. Theoretical problems in the study of state power. Saratov, 19X2.

4. Goiman V.I. Action of law. M., 1992.

5. Jellinek G. General doctrine of the state. Ed. 2nd. correction and additional S.-Pb., 1908,

6. CarbonierJ. Legal sociology / Translated from French. V.A. Tumanova. M., 1986.

7. Kistyakovsky B.A. State and personality // Power and law. From the history of legal thought. L., 1990. pp. 145-171.

8. Karelsky V.M. and others. Theory of state and law.

Part 1. Ekaterinburg, 1994.

9. Koldaev V.M. Government. Lecture. M.. 1993.

10. Makarenko N.V. State coercion as a means of ensuring public order: Dis. ...cand. legal Sci. N.-Novgorod, 1996.

11. General and applied political science // Under general. ed. IN AND. Zhukova, B.I. Krasnova. M., 1997.

12. Ozhegov S.N. Dictionary of the Russian language // Ed. M.Yu. Shvedova. M., 1984.

13. Tikhomirov Yu.A. Public law: fall and rise // State and law. 1996. No. 1. P. 3-12.

LEGAL DOCTRINE AS A SOURCE OF LAW R.V. Puzikov

The opinions of leading legal scholars in most legal systems do not constitute law in the proper sense of the word. However, for the formation of a model of legal regulation, the importance of scientific works in the field of law has always been quite high. The legislator often took into account the trends that were recorded in the doctrine. The role of doctrine in modern conditions is extremely important in improving legislation, in creating legal concepts and in the methodology of interpreting laws.

Doctrine as a source of law is understood as science (theory, concept or idea), which in all cases without exception is used in the law-making and law-implementing process. So, even R. David said: “The law forms

like the skeleton of the legal order, covers all its aspects, and the life of this skeleton is largely given by other factors. The law is not viewed narrowly and textually, but often depends on broad methods of its interpretation, in which the creative role of doctrine and judicial practice is manifested. Lawyers and the law itself theoretically recognizes that the legislative order may have gaps, but these gaps are practically insignificant.”

The role of doctrine as a source of law is manifested in the fact that it is it that creates a dictionary of legal (legal) concepts that the legislator uses: it contains patterns with the help of which the legislator finds the law, enshrines it in laws and interprets the normative

legal acts. In these processes, the doctrine influences, first of all, the legislator himself, his consciousness and will. Perceiving the provisions contained in it in the form of trends and patterns, he makes appropriate decisions.

Only the use of science (and doctrine is essentially the result of scientific research) makes it possible to orient legal activity towards the progressive development of law and the state, that is, towards true necessity. The individual legal provisions that form the law of the people are in an organic connection with each other, which is explained, first of all, by their emergence from the national spirit, for the unity of this source extends to everything produced by it. This does not exclude disagreement, which interrupts the harmony of individual parts of the law, since the spirit of the people is subject to destructive symptoms, like a disease; This can most easily happen from careless actions of the legislative branch, when the legislator replaces due energy with arbitrary negligence, quick assistance with improvisation of legal decrees. Just as the language of a people is based on well-known principles and rules that lie hidden within itself, but are brought to consciousness and clarity through science, so is law.

The task of science is to understand legal provisions in their systematic connection, as conditioning each other and originating from each other, so that it is possible to trace the genealogy of individual legal provisions to their principle, and then from the principles to reach the most extreme ramifications. With this method of study, the legal provisions hidden in the spirit of national law will be brought to consciousness, and are not manifested either in the immediate beliefs of the members of the people and their actions, or in the sayings of the legislator, which, therefore, become clear only as a product of scientific deduction.

Thus, science is an indisputable source of law, along with other sources; the law arising from this source is the law of science or, in other words, the law of lawyers, since it arises from the activities of lawyers.

This last expression can be given an even broader meaning. It can be understood as law, living mainly in the minds of lawyers who are considered its bearers. This happens in times of progress of the people, when the law loses, along with its former simplicity, the ability to be accessible in a certain completeness to the knowledge of all members of the people. Even common law, without taking into account the particular law of individual localities and small districts, lives and develops mainly in the minds of lawyers as members of the people, the most knowledgeable in law and by their vocation constantly dealing with the subjects of law, lawyers,

who are thus the natural representatives of all the other members; in this sense, common law can be called the law of lawyers. But this name, as a less ambiguous expression, should be preferred to designate law, the source of which is science.

When a doctrine influences the legislator, it acts as an indirect source of law. When the legislator fixes the achievement of science in the rules of law, we can talk about the direct impact of the doctrine on the adoption of the law. Thus, if we turn to the Constitution of the Russian Federation, we can easily see that the concept (doctrine) of natural law served as its main source. One of the fundamental foundations of the constitutional system of the Russian Federation is contained in Art. 2 of the Constitution of the Russian Federation, which states that “Man, his rights and freedoms are the highest value. Recognition, observance and protection of human and civil rights and freedoms is the duty of the state.” This idea is also developed in Art. 17, where it is written: “Fundamental human rights and freedoms are inalienable and belong to everyone from birth.”

The primacy of doctrine was only relatively recently replaced by the primacy of law, which, in our opinion, is not true.

Therefore, it must be concluded that since the change in primacy has occurred relatively recently, and also considering that the law in practice is not the same as the law in theory, then, taking these two factors into account, it is possible to establish the true meaning of the doctrine, contrary to the often simplistic formulas, according to which they are not a source of law. These formulas make sense only if we assume, as the prevailing view in France in the 19th century did, that all law is expressed in legal norms emanating from public authority. However, such an opinion contradicts the entire legal tradition and seems unacceptable. Indeed, today there is an increasing tendency to recognize the independent nature of the process of interpretation, which has ceased to look exclusively for the grammatical and logical meaning of the terms of the law or the intention of the legislator.

Of course, only legal norms can be called legal. For those who take reality into account and have a broader view of law, doctrine today, as in the past, constitutes a very important and very vital source of law. This role is manifested in the fact that it is the doctrine that creates the vocabulary and legal concepts used by the legislator.

Indeed, doctrine is of paramount importance, since it is what creates different tools for the work of lawyers in different countries. Differences in these tools can in some cases create difficulties for foreign lawyers, giving rise to the impression that the two

in fact, nearby legal systems differ significantly. This is exactly what happens when French and German law are compared. This is one of the reasons for such a frequent, albeit superficial and artificial, opposition between “Latin” and “German” law. A French lawyer studying German law is hampered not so much by the difference in content between German and French law as by the difference in form that exists between the works of German and French jurists.

German and Swiss jurists prefer article-by-article commentaries, which also exist in France, but in the latter they are intended only for practitioners. The preferred tool of French lawyers is courses or systematic textbooks; in the absence of a course, they would rather resort to the latest alphabetical reference book than to an article-by-article commentary.

However, the French and German styles are clearly moving closer together. Commentaries published in Germany are becoming increasingly doctrinal and critical, and textbooks turn to judicial practice and legal practice in general in the country. The situation is different in Italy and in the countries of Spanish and Portuguese. The works published here cause surprise among the French, not only because these works are characterized by extreme dogmatism and lack of judicial practice, but also because the very people who write these works are often engaged in practice, are lawyers and legal advisers.

In relation to domestic legal practice (both law-making and law-implementing), it is necessary to recognize the existence of the problem of using the doctrine. Thus, despite the obvious role of legal doctrine as a source of law, the science of the theory of state and law practically does not cover this type of source of law. Thus, many legal scholars and authors of textbooks on legal theory generally reject the role of legal doctrine on law. In addition, neither in the general theory of state and law, nor in branches of law does the term “legal doctrine” exist at all.

In this regard, it is necessary to create a conceptual apparatus of legal doctrine and its types, as well as the forms of influence of legal doctrine as a source of law.

In the Soviet encyclopedic dictionary, the concept of “doctrine” is understood (from Latin) as a teaching, scientific or philosophical theory, system, guiding theoretical or political principle.

“Doctrine” is a systematized political, ideological or philosophical teaching, concept, set of principles. Often used to denote views with a hint of scholasticism and dogmatism.

"Doctrine" is a doctrine, scientific or philosophical theory.

Based on the above definitions of the doctrine, we can derive the definition of “Legal doctrine” - this is a set of principles, and it is necessary to conclude that the concept of doctrine can exist in two aspects:

1) The apparatus of concepts traditionally developed in a particular country (not a written legal doctrine).

2) A written legal doctrine, which is generally recognized international legal norms.

The existence of two aspects of the concept makes the application of legal doctrine problematic, since traditionally established legal doctrine and international legal norms may or may not coincide. Moreover, they may not coincide both completely (as was the case under socialist law, when our law completely refused to accept international legal standards) and conceptually (an example is how the concept of “Man” was interpreted in the USSR, where under this only workers and peasants were understood).

Speaking about the forms of influence of Legal Doctrine as a source of law, as noted above, two main forms can be distinguished:

1) Legal doctrine as a form influencing the legislative process.

2) Legal doctrine as a form influencing the law enforcement process.

Based on this, it can be argued that the legal doctrine of Russia has not developed and does not exist as a whole concept, and this affects law enforcement and legislative processes, namely, as a result of the lack of legal doctrine when creating new legal acts, they were borrowed from different countries belonging to different legal families. All this happens due to the lack in Russia of a unified scientific basis for law-making and law enforcement practice. In addition, when creating new regulations, old customs were used that absolutely do not meet modern requirements, and there was also a deformation of the modern understanding of law. As a result of this, legislators often compare the incomparable, and this affects the legal doctrine (its formation) as a source of law. A person making a law must know the specifics and correlation of the two sides of the “Legal Doctrine”; this is exactly what should become the legal doctrine of Russia.

Thus, in Russia there has not been a stable conceptual apparatus of the “Legal Doctrine” and this has a negative impact on the law-making and law enforcement process in Russia.

In this regard, I believe that there is an urgent need for the immediate development of legal

legal doctrine of Russia, and professional lawyers should play the greatest role in this process.

1. Theory of State and Law / Ed. V.M. Korelsky and V.D. Perevalova. M., 1998. P. 313.

2. David R. Basic legal systems of our time. M., 1996. P. 105.

3. History of the philosophy of law. S.-Pb., 1998. P. 343.

4. Soviet encyclopedic dictionary / Ed. A.M. Prokhorova. M., 1983.

5. Brief philosophical encyclopedia. M.. 1994.

6. Ozhogov S.I. Dictionary of the Russian language. M., 1970.

THE NEED FOR DEVELOPMENT AND ACTIVATION OF CIVIL SOCIETY IN RUSSIA DURING THE TRANSITION PERIOD

S.S. Khudyakov

Russia, which is being reformed today, faces the problem of ensuring the further structural development of civil society as a society that meets a number of criteria developed by historical experience.

Civil society is not born overnight. It must go through a long stage of formation. Western Europe has been moving towards this type of society for centuries, starting from the first attempts to realize communal interests through a system of guilds, following the example of Florence. And only more than eight centuries later Europe saw the results of guild morality. Moreover, for the current flourishing of civil society institutions, Europe also needed several decades to live without wars on its own territory.

Russia does not have enough such experience. Our society today is in a complex, far from complete process of self-knowledge. Power cannot exist in emptiness, in isolation from society. A state that has enslaved society, ignoring its demands and needs, is leaving the world stage as a phenomenon of yesterday. This pattern is valid both for the whole world and for Russia.

A modern state needs direct and feedback communication with society, powerful and influential non-state institutions of social self-organization. A strong and effective state throughout the modern world interacts with civil society. To understand the current situation in social development, it is important to determine the level of development of civil society in the country.

The concept of civil society, having long been known to political and legal theory, turned out to be relatively new and undeveloped for our modern science. The problem of civil society became particularly relevant after the publication in 1992 of the draft of a new Constitution prepared by the Constitutional Commission. For the first time in the practice of Russian constitutional legislation, it envisaged a special section - “Civil Society”.

It could not have been otherwise after the Russian Federation gained independence, proclaimed in the Declaration of State Sovereignty on June 12, 1990. Naturally carried out constitutional reform assumed the consolidation of the main institutions of civil society and required appropriate legal design.

However, the first attempts at the practical implementation of these norms nevertheless presuppose a theoretical understanding of the logic of the formation and development of structures and institutions of civil society, the degree and nature of their interrelation.

Although the concept of civil society is relatively new and undeveloped for Russian science, nevertheless, it has existed in world socio-political thought for more than one century.

For the first time, the concept that can be translated as “civil society” was used by the ancient philosophers Plato, Aristotle, and Cicero to designate the social systems that developed in Ancient Greece and Ancient Rome. Their works laid the foundation for the issue of civil society. This idea was continued during the Renaissance, in the works of G. Greece, T. Hobs, J. Llocca, C. Montesquieu, J.-J. Rousseau, but the term itself began to be used steadily only in the 18th century. Although, as the French researcher Dominique Colas notes, it was first mentioned in the 16th century in a commentary to Aristotle’s Politics.

The concept of “civil society” refers to far from identical, and sometimes even opposite, phenomena. Thus, Niccolo Macchiavelli represented civil society as a set of opposing interests: class, estate, party. It did not have the basis for democracy - the power of the people, for the latter requires from the people nobility, honor, and courage in everything that relates to the protection of public interests. Macchiavelli believed that a passive society, which occasionally resists overwhelming oppression, cannot be considered civil.

Ticket 5: The structure of a legal norm.

The structure of a legal norm is understood as the internal structure of the norm - its main parts (structural elements), their relative position and interrelation. The rule of law is built on the model of a conditional sentence: “if..., then..., otherwise...”. The elements of a legal norm make up its logical structure: hypothesis, disposition, sanction, in administrative, civil, criminal, criminal procedure and others.

A hypothesis indicates the facts, conditions, circumstances under which its instructions are to be fulfilled; on the subjects to whom the norm is addressed. Types: simple, complex, alternative.

A simple hypothesis is a hypothesis that specifies one circumstance, the presence or absence of which is associated with the effect of legal norms.

For example, Art. 444 of the Civil Code of the Russian Federation: “If the contract does not indicate the place of its conclusion, the contract is recognized as concluded at the place of residence of the citizen or the location of the legal entity that sent the offer.”

In a complex hypothesis, the effect of a norm depends on the presence or absence of two or more circumstances at the same time.

For example, paragraph 4 of Art. 101 of the Criminal Code of the Russian Federation: “Forced treatment in a specialized psychiatric hospital with intensive supervision may be prescribed to a person whose mental state poses a particular danger to himself or other persons and requires constant and intensive supervision.”

An alternative hypothesis makes the operation of the rules dependent on one of several circumstances listed in the law.

For example, Article 387 of the Civil Code of the Russian Federation: “The rights of the creditor under an obligation are transferred to another person on the basis of the law and the occurrence of one of the circumstances specified therein ...”, and then all possible circumstances are listed.

The disposition contains a rule or model of behavior of participants in regulated relations, established by the state, under the circumstances provided for by the hypothesis. Types: simple, complex or descriptive, alternative.

A simple disposition indicates and names a variant of a specific behavior, but does not reveal it.

For example, paragraph 1 of Art. 269 ​​of the Civil Code of the Russian Federation: “A person to whom a land plot is granted for permanent use shall own and use this plot...”.

A complex or descriptive disposition indicates and lists all the essential features of behavior.

For example, Art. 249 of the Civil Code of the Russian Federation: “Each participant in shared ownership is obliged, in proportion to his share, to participate in the payment of taxes, fees and other payments on common property, as well as in the costs of its maintenance and preservation.”

An alternative disposition indicates several options for behavior, and participants in legal relations can follow one of them.

For example, paragraph 2 of Art. 246 of the Civil Code of the Russian Federation: “A participant in shared ownership has the right, at his own discretion, to sell, donate, bequeath, pledge his share, or dispose of it in any other way...”.

Sanction - this is a logically final element (structural element), containing an indication of the adverse consequences that arose after a violation of the disposition.

In philosophical and sociological approaches, sanction is understood not only as negative phenomena (indication, censure), but also as positive consequences (encouragement, approval) for socially useful behavior.

A simple or absolutely certain sanction is one where the extent of the adverse consequences is precisely specified.

For example, Art. 137 of the Code of Administrative Offenses “Manufacture and use of radio transmitting devices without permission shall entail a fine of 50 rubles with complete confiscation of the radio equipment used.”

A complex or relatively specific sanction is one where the boundaries of adverse consequences are indicated from minimal to maximum or only to minimal.

For example, clause 1 of Art. 161 of the Criminal Code of the Russian Federation: “Robbery, that is, the open theft of someone else’s property, is punishable by correctional labor for a term of one to two years, or by arrest for a term of four to six months, or by imprisonment for a term of up to four years.”

An alternative sanction is a sanction where several types of adverse consequences are named and listed, from which the law enforcer selects only one, the most appropriate for the case being decided.

For example, Art. 125 of the Criminal Code of the Russian Federation “Deliberately leaving without help a person who is in a condition dangerous to life or health and is deprived of the opportunity to take measures for self-preservation due to childhood, old age, illness or due to his helplessness, in cases where the culprit had the opportunity to assist this person and was obliged to take care of him, or himself put him in a condition dangerous to life or health, is punishable by a fine in the amount of fifty to one hundred times the minimum monthly wage, or in the amount of the wages or other income of the convicted person for a period of up to one month, or by compulsory labor for a term from one hundred twenty to one hundred eighty hours, or correctional labor for a term of up to one year, or arrest for a term of up to three months.”

Ticket 6.

Legal system - this is the internal structure structural elements rights.

Comprises:

1. Branch of law - a set of legal norms regulating a qualitatively homogeneous group of social relations, through various subjects and methods of legal regulation. It is also the largest element in the legal system that regulates the type of social relations.

To divide law into branches, the subject and method of legal regulation are used to distinguish one branch of law from another.

2. Legal institution - a separate group of legal norms regulating qualitatively homogeneous social relations within one branch of law or at their junction, i.e. type of social relations.

3. Several legal institutions that are similar in nature of regulation form a sub-branch of law. For example, civil law includes copyright, housing, and patent law; financial law includes a sub-branch of tax law.

4. A rule of law is a generally binding, formally defined rule of behavior, guaranteed by the state, reflecting the level of freedom of citizens and organizations, acting as a regulator of social relations.

The legal system also includes sub-institutions.

The subject of legal regulation is social relations regulated by a given set of legal norms.

Each industry has its own subject of regulation. The subject of regulation is formed objectively and does not depend on the legislator. The subject of legal regulation can be social relations that are characterized by stability and repeatability, the interest of society and the state in their existence in legal form and protection by the state, and the ability for external control, for example, by judicial or administrative bodies. But internal family relationships are not subject to external control by legal norms.

Method of legal regulation - the way law influences social relations.

The method is characterized : a) the procedure for establishing subjective rights and responsibilities of subjects of public relations; b) sanctions; c) the degree of independence of the subjects’ actions.

The method of legal regulation is:

1. The imperative method (authoritarian, imperious) is based on subordination, subordination of participants in social relations. This method strictly regulates the behavior (actions) of subjects and they are often placed in an unequal position, for example, a citizen and an administrative body. This method is typical for criminal, administrative, and tax law.

2. The dispositive method (autonomous) establishes the rights and obligations of subjects, giving them the opportunity to choose a behavior option or regulate their relationships with an additional agreement. This method is inherent in civil, family, and labor law.

Classification of the legal system:

1. Branches of substantive and procedural law.

2. Private and public law.

3. Domestic and international law.

Ticket 7. Branches of law.

A branch of law is a system of institutions and norms of law that regulate social relations of one kind.

Each of the industries differs in the subject of legal regulation (homogeneous social relations enshrined in legal norms). They also differ in the method of regulation (method and method of legal influence on a person).

Basic methods:

1. Imperative - strict instructions that must be followed. It is inherent in the branches of administrative and criminal law, because Violation of them will result in criminal or administrative liability.

2. Dispositive offers the right to choose.

Branches of law are divided into public and private

3. Public regulate relations in the spheres of government, judicial, executive and administrative activities.

4. Private ensure the protection of private interests.

Main branches of law:

1. Constitutional law. The subject is the relations that establish the constitutional system, the form of government, and the general principles of organization of state bodies. Constitutional norms have the highest legal force.

2. Criminal law regulates relations aimed at combating crime. The main source is the Criminal Code of the Russian Federation, consisting of General (legal norms) and Special parts (responsibility for the crime committed).

3. Criminal procedural law. Establishes the procedure for bringing persons to criminal liability, from the initiation of a case until the pronouncement of a court verdict. Source: Code of Criminal Procedure of the Russian Federation.

4. Criminal executive law regulates relations arising in connection with the execution of punishments. Source – Penal Code of the Russian Federation, which sets out the legal status of convicted persons, the procedure for expunging a criminal record, serving a sentence, etc.

5. Administrative law regulates relations in the areas of supporting public safety and order, public administration. Source – Code of Administrative Offenses of the Russian Federation.

Private branches of law:

5. Labor law legally establishes the relationship between employees and employers. The main source is the Labor Code of the Russian Federation.

2. Family law. Reinforces norms in the family sphere: relationships among spouses, parents, children, etc. are regulated. Source: RF IC.

3. Civil law regulates property and personal non-property relations. Source – Civil Code of the Russian Federation.

4. Civil procedural law. Reinforces the procedure of civil proceedings (consideration of the case in court, the possibility of appeal, etc.) Source - Code of Civil Procedure of the Russian Federation.

5. Financial law regulates relations regarding the formation of the state budget, collection of taxes, expenditure and distribution of public funds.

6. Land law establishes relations with the ownership, use, and disposal of land. The main source is the Land Code of the Russian Federation.

7. Business law regulates relations related to the activities of citizens and legal entities aimed at making a profit from work and services performed, with the risk of property liability.

In addition, branches of law are also divided into substantive (establishes the rights and obligations of the subject) and procedural (establishes the procedure for implementing norms).

Question 10. Legal custom as a source of law . Legal custom is a historically established and state-sanctioned rule of conduct, included in the system of legal norms and recognized as a source of law. Customary law is one of the oldest phenomena in human history. The study of customs and their relationship with other sources of law is important for understanding the historical process of the emergence of law, as well as continuity in the development of legal norms. In legal science, both domestic and foreign, customary law has been and is being studied from a historical perspective and in terms of comparing customary norms with other social norms. Recognition by the state distinguishes legal custom from simple custom, which is not a source of law. The state may recognize a custom as legal in one of the following forms: - in the form of a reference to a norm of custom in the text of a regulatory legal act; - in the form of a court decision, when the court refers to a norm of custom. The text of the custom is not fixed in legal acts. If this happens, then it is no longer possible to talk about legal custom as a source of law - it is replaced by a normative legal act, of which the norm of custom becomes a part. Signs of a legal custom: - the local nature of the norms contained in it - the norm of a legal custom extends its effect to a relatively small territory and (or) to a small group of people united on the basis of consanguinity or professionalism; - has legal force - is protected by the possibility of applying measures of state coercion; - must not contradict the moral norms accepted in a given society and state policy in this area of ​​legal regulation (the latter issue is decided by the law enforcement agency); - has existed for quite a long time and is known to a fairly wide circle of people. Application:

Customs (customary norms) are not recognized as sources of law in all states, and only in a limited range of legal relations. Legal customs are most widely used in banking practice, commercial transactions, insurance, and international trade. Legal custom consolidates long-established social relations that have become habitual. State sanction here, as a rule, is manifested in the fact that state bodies in their activities use them as a normative basis for making administrative decisions, issuing judicial and administrative acts. Sometimes a reference to a legal custom is directly given in a law or other regulatory act. Participants in legal relations have the right to substantiate their claims and protect their rights by reference to established legal customs. A type of legal custom are business customs - established and widely used rules of conduct in any area of ​​business activity that are not provided for by law, regardless of whether they are recorded in any document. In developed legal systems legal custom acts as an additional source of law when a norm of legal custom fills the gap formed as a result of the unsettlement of a particular condition in the contract or gaps in legislation.

Question 11. Legal doctrine as a form of law

Doctrine or legal science , is a statement of legal principles, rules of conduct in treatises, works of authoritative representatives of legal science and practice, which are given generally binding significance. Doctrine as a source of law was recognized in Ancient Rome. Roman lawyers, whose authority was extremely high, had the right to give explanations that were binding on the courts. During the Middle Ages, the works of glossators played the same role. And in the 19th century. The Russian Governing Senate cited the works of domestic civil scientists in its acts. Currently, the doctrine is recognized as a source of law in England. When considering cases, courts refer to the treatises of lawyers. And in Islamic law, doctrine is recognized as the most important source of law. For example, in the legislation of some countries (Egypt, Lebanon, Syria, Sudan), judges, when considering family cases, apply “the most preferable conclusions of the Abu Hanifa sense.”

In modern Russian legislation and in legal theory, in the formal legal sense, the doctrine is not recognized as a source of law, but in a broad sense it is recognized. Commentaries on legislation by leading scientists - lawyers and practitioners, although not an official source of law, are used by lawyers in law enforcement practice to clarify the provisions of regulatory legal acts. Legal science has great importance for the development of legal practice, correct interpretation law, improving legislation. The experience of global law enforcement practice shows that the importance and role of legal science is growing. Many of its developments are actively being implemented in the implementation of law.

The role of scientific doctrine in Russian law is clearly underestimated. One may come across opinions that it is purely theoretical, prognostic, applied, recommendatory, conditional in nature. The normative, legal and law enforcement significance of the doctrine is denied, since it is not a source of Russian law. However, the consideration and resolution by judges of cases on the protection of business reputation makes us think about the opposite.

Of course, doctrine as a source of law is associated primarily with Islamic law, as well as the Anglo-American legal family. For example, in Muslim law it is associated with ijma, and in the Anglo-American legal family - with scientific works and statements of authoritative legal scholars.

The properties of legal doctrine as a source of law are reliability, validity, general acceptance, 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 generality of the language, the danger of the legal doctrine reflecting narrow social interests and corporate claims, rationalism and possible errors in understanding the law.

A legal doctrine can be distinguished from other sources of law according to the following criteria: in terms of the form of expression, a legal doctrine acts as an unwritten source of law, while a normative legal act or a normative legal contract has a written expression; the creators of the legal doctrine are persons knowledgeable in law, experts in law, while a normative legal act, a normative legal agreement, a legal precedent, and judicial practice are formed by public authorities, and legal custom develops in the actual life of the entire society; legal doctrine is characterized by an abstract, general character, in contrast to the casuistry, concreteness of judicial practice, legal precedent and legal custom; legal doctrine, like legal custom, is implemented by subjects of law voluntarily, on the basis of a belief in the authority and generally accepted principles of pre-criminal provisions, while other sources of law are observed mainly through the threat of using state coercive measures; legal doctrine is formed purposefully by a corporation of lawyers, and legal custom is formed spontaneously by society; the process of creating a legal doctrine is lengthy and is not subject to procedural rules; The legal doctrine is distinguished by its unique ways of acquiring general bindingness - the recognition by the state in normative legal acts of the binding nature of certain ideas or works of lawyers, the use by judicial authorities of the works of legal experts as the legal basis of the case when making decisions, the actual operation of the legal doctrine due to its compliance by subjects of law.

Legal doctrine consists of a set of ideas and statements of the most authoritative legal scholars, set out by them in scientific treatises, which, due to their recognition by the state and its bodies, can be used in resolving legal issues. This source of law is currently most widespread in Muslim countries.

He is considered one of the main ones there. The opinions of jurists who are experts in Islam have legal significance.

As a direct source of law in European legal systems, legal doctrine is rarely used in English-speaking countries, when judges, additionally justifying their decisions, refer to the works of famous English scientists, such as Bracton, Glanville, etc.

In Russia, legal doctrine is not used as a source of law. Administrative or judgment cannot be based on scientific doctrine.

Nevertheless, the achievements of legal science objectively influence the improvement of Russian legislation, the formation of legal concepts, especially the process of interpretation of the Constitution, as a result of which conclusions of normative content are drawn.

1. By its legal nature, a legal doctrine in a rational form reflects legal reality and has regulatory capabilities - in terms of ideological, educational influence on the will and consciousness of 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 the source of law and acts as a form of expression and consolidation of legal norms.

• 2. Legal doctrine is a system of ideas about law that express certain social interests and determine the content and functioning of the legal system and directly affect the will and consciousness of subjects of law, recognized as officially binding by the state by referring to the works of authoritative legal experts in legal acts or legal practice due to their authority and general acceptance.
• 3. 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 familiarity of the unwritten doctrine among professional lawyers and legal subjects.

Secondly, the generally binding nature of the legal doctrine follows from the authority, respect for legal scholars in society, as well as the generally accepted nature of the work of legal scholars in the legal corps and society.

Thirdly, the implementation of the legal doctrine is ensured by state sanction in regulations or judicial practice.

4. Legal doctrine is the primary source of law and prevails in legal force in relation to other sources of law.

The formation of a legal doctrine as a legal doctrine is of an intellectual-volitional, purposeful nature over a long period of time as a result of scientific research acquiring the qualities of general acceptance in society and the professional environment of lawyers and its application in regulating public relations.

In 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.

• 5. The ways of expressing legal doctrine are principles of law, legal definitions, doctrinal interpretation of legal norms, legal constructions, rules for resolving legal conflicts, legal axioms, presumptions, maxims, rules for drawing up and processing legal acts, legal dogmas, legal prejudices, legal positions.
• 6. Legal doctrines in the dissertation can be classified into:

by 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 recommendatory;

depending on the circle of creators - personalized and collective;

by distribution - universal and private; forms of external manifestation - draft normative legal acts, opinions on the interpretation and application of law in specific cases, works of scientists recognized as mandatory by the state in resolving legal disputes.

7. The ways of sanctioning a legal doctrine are: making the works of lawyers binding in legal acts; reference to the doctrinal works of lawyers when making decisions on a specific legal case by judicial authorities and other bodies applying the law; inclusion of legal doctrine in the text of a regulatory legal act.

The absence of state approval of a legal doctrine does not mean its impossibility of actual action as a source of law.

8. The properties of legal doctrine as a source of law are reliability, validity, general acceptance, 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 generality of the language, the danger of the legal doctrine reflecting narrow social interests and corporate claims, rationalism and possible errors in understanding the law.

9. A legal doctrine can be distinguished from other sources of law according to the following criteria: in terms of the form of expression, a legal doctrine acts as an unwritten source of law, while a normative legal act or a normative legal agreement has a written expression.

The creators of the legal doctrine are persons knowledgeable in law, experts in law, while a normative legal act, a normative legal agreement, a legal precedent, and judicial practice are formed by public authorities, and legal custom develops in the actual life of the entire society.

The legal doctrine is characterized by an abstract, general character, in contrast to the casuistry, concreteness of judicial practice, legal precedent and legal custom; legal doctrine, like legal custom, is implemented by subjects of law voluntarily, based on the belief in the authority and general acceptance of doctrinal provisions, while other sources of law are observed mainly through the threat of using state coercive measures; legal doctrine is formed purposefully by a corporation of lawyers, and 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 unique ways of acquiring general bindingness - the recognition by the state in normative legal acts of the binding nature of certain ideas or works of lawyers, the use by judicial authorities of the works of legal experts 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.

• 10. Legal doctrine for the first time as an official source of law took shape in Ancient Rome due to the need to eliminate contradictions, uncertainty of legal norms, gaps in positive law, knowledge, processing and publication of the customs and laws of Rome, as well as ensuring the protection of order in public life through compliance with law enforcement process of corresponding formal and ritual rules unknown to subjects of law.
• 11. Studying the history of various legal systems of the world allows us to formulate universal patterns of the emergence and evolution of legal doctrine.

Firstly, the recognition by the state or the actual operation of the legal doctrine as a source of law in all countries of the world is associated with the fact that outside the corps of professional lawyers, law loses its social meaning, spiritual meaning, since it has no justification on the part of jurists, and is deprived of mechanisms for creating , eliminating contradictions, gaps, interpretation and implementation.

Secondly, the rootedness of the legal doctrine in the spirituality of the people, expressed in the fact that the knowledge of law was the lot of priests, elders, who received from the supreme gods, along with revelation, divine truth, the truth - law - the eternal and immutable order of the universe, and the legal profession had a sacred ideal -service to divine higher principles - religion, morality of the people, ensuring unity, order and predictability of social life.

Thirdly, the autonomy of the corps of lawyers in relation to state power necessarily entails the recognition of legal doctrine as a source of law by society, and subsequently by the state.

On the contrary, the subordination of the corporation of legal scholars to the state, government intervention in the organization and activities of legal communities causes a decline in authority, the role of legal doctrine in the system of sources of law, gives rise to a crisis of creativity, and paralyzes the predictive and regulatory capabilities of the legal doctrine.

• 12. The domestic legal doctrine contains spiritual and moral principles and images that arose during the era of the formation of the Russian people and statehood - V - VII centuries. - the ideal of people's truth-rule - the eternal and divine law that determines the universe and the meaning of life of the Russian person, conciliarity, sovereignty, unity of law, religion and morality,
• 13. The legal doctrine in Russia actually took shape in the 16th century in the practice of Russian courts, orders in the application of Russian law, the systematization of the law of Rus' and its creative development, which predetermined its pragmatic nature, the understandability and accessibility of legal language and the adherence to moral and Orthodox ideals in the creation and implementation of rights.

The originality of the legal doctrine of Russia in this historical period was reflected in its religious spirit and historical identity, since Russia did not accept the achievements of Roman law.

• 14. The effect of legal doctrine in legal practice is associated with the presence of the following circumstances:
  • - the emergence of gaps, contradictions, and uncertainty in positive law; - generally accepted doctrinal views in the corporation of lawyers and society; - the authority and spiritual and cultural foundations of the legal doctrine.

Concept of legal doctrine

Definition 1

Legal doctrine is a harmonious and holistic system of principles, views, concepts, ideas, ideas and moral norms of law, conditioned by spiritual and intellectual development, political and legal culture and moral principles of society.

This phenomenon became widespread in ancient Rome, where the opinions of such jurists as Papinian, Gaius, Paul, Ulpian and Modestine were recognized as binding for judges. Starting with Emperor Augustus, the works of these authors received the meaning of jus respondendi, that is, the judge, when making a decision, could refer to the opinion of one of the above-mentioned lawyers.

Subsequently, this phenomenon did not develop as an independent source of law.

Modern legal systems, with some exceptions, do not contain rules on the application of doctrine as a source. An example is Switzerland, whose civil law provides for the possibility, in the event of a gap in the right, to refer to the opinions of authoritative legal scholars.

The situation is different in the Muslim system of law, where the works of prominent legal scholars have always been and still remain a common source of law, which the court can always refer to.

Definition 2

Legal doctrine, among other things, is a system of prevailing ideas and views about law in society; with its help, a creative transformation of all parts of the legal system is possible: legal consciousness, law-making, legal implementation and positive law.

Legal doctrine in Russia

In Russia, there are such regulatory legal acts as military and environmental doctrine, the doctrine of information security, which have nothing to do with the opinion of authoritative legal scholars, since they are normative in nature. At the same time, the place of these regulations in the general hierarchy of laws of the country is not strictly established and, in fact, remains unclear.

The Civil, Family, Arbitration Procedure Codes recognize that the norms of foreign law are determined by their official interpretation by the doctrine of the relevant foreign state.

In Article 38 of the Statute of the International Court of Justice, the source of law that the International Court can apply is doctrine, that is, the opinion of the most qualified jurists in the field of public law.

In other words, in such a situation, Russian law recognizes legal doctrine as a source of international law.

One way or another, the place of legal doctrine in unified system sources of Russian law. Legal doctrine plays an important role and can be indirectly recognized as a source of law only due to its actual recognition in the creation and formal legal consolidation in laws of such phenomena as:

• principle of law;
• legal definition;
• interpretation of legal norms by the Supreme Court;
• the procedure for resolving conflicts;
• methods of preparing legal documents;
• legal presumptions.

Classification of legal doctrines

Legal doctrines can be classified according to:

• form of expression - be written and non-written;
• attitude towards religion - to be religious and secular;
• scope of application – international and national doctrines;
• method of authorization - mandatory and recommended;
• content – ​​copying other legal sources or having independent legal significance;

The application of legal doctrines in legal practice may be due to such circumstances as:

• gaps, contradictions, uncertainty in positive law;
• general acceptance of doctrinal views by the legal community;
• authority and spiritual and cultural basis of legal doctrine.

In domestic and foreign legal science, a single opinion recognized by all scientists on the nature, meaning and place of legal doctrine in the legal system of society has not yet been formed. Rights I.Yu. Bogdanovskaya, who noted that “in many legal systems, the question of whether a doctrine is a source of law is even more controversial than the question of recognizing it as a source of judicial practice.” As a rule, the characterization of legal doctrine in legal literature is limited to a definition and an indication that the works of lawyers are recognized as a source of law in England and the Muslim East. Thus, the French comparativist Rene David rightly notes: “For a long time, doctrine was the main source of law in the Romano-Germanic legal family; It was in universities that the basic principles of law were mainly developed during the period from the 13th to the 19th centuries. And only relatively recently, with the victory of the ideas of democracy and codification, the primacy of doctrine was replaced by the primacy of law... it is possible to establish the true meaning of doctrine, contrary to the often encountered simplistic formulas, according to which it is not a source of law.”

Legal doctrine acquired the character of a source of law at the dawn of the history of law, during the emergence and flourishing of the state of great warriors, statesmen and lawyers - the ancient Romans (from the third century BC until the death of Byzantium, the Eastern Roman Empire in 1454 under the onslaught of Muslims).

Initially, knowledge and interpretation of law, drawing up formulas of claims in Ancient Rome was the privilege of a special college of priests - pontiffs, who were by no means impartial and disinterested in their work. In the third century BC, the scribe Gnaeus Flavius, the son of a freedman, published a book of claims, which earned him the respect and love of the Roman people. The noble act of Gnaeus Flavius ​​ensured the availability of Roman law for every Roman citizen, both a noble patrician and a plebeian who was considered powerless. Thus, equality and justice of the opposing classes were achieved, when none of them could monopolize the sphere of administration of justice, as well as knowledge and interpretation of laws and customs. Since then, jurisprudence has become a secular occupation, and not the lot of a few God-elected pontiffs.

Recognition of legal doctrine as a source of law is determined by 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 fame of the doctrine among professional lawyers and legal subjects.

Secondly, the generally binding nature of the legal doctrine follows from the authority, respect for legal scholars in society, as well as the general acceptance and acceptance of the works of legal scholars in the legal corps and society.

Finally, the implementation of the legal doctrine is ensured by state sanction in normative legal acts or judicial practice, although the legal doctrine may act de facto without approval by official bodies.

Revealing the social purpose of legal doctrine as a source of law, it is necessary to note the following.

Firstly, with the help of legal doctrine, gaps in the current positive law are filled and contradictions between legal norms are eliminated. Moreover, the doctrine ensures that the law is interpreted in accordance with its letter and spirit.

Secondly, legal doctrine as a system of ideas and values ​​influences the consciousness and will of all subjects of legal activity, starting with law makers and law enforcers and ending with subjects of legal relations.

Thirdly, legal doctrine can be a source that contains information about the ancient customs and laws of a particular people. Thus, the treatises of Roman and English jurists were used by the courts not only because of their authority, but also because they contained texts of customs and laws.

Fourthly, formalism, the inaccessibility of law for understanding and application by the majority of citizens determine the formation of a special class, a corporation of lawyers - persons who study and formulate the law. For professional legal assistance, citizens are forced to turn to representatives of this corporation. Otherwise, subjects of law may be deprived of protection from the law.

Fifthly, the legal doctrine, being part of public legal consciousness, reflects the originality of the national legal culture and the originality of legal thinking. The understanding and role of law, legal doctrine as a source of law is predetermined by the spiritual roots of the corresponding people. Thus, in the Western legal tradition (continental and Anglo-Saxon law), law is perceived as written and unwritten rules of behavior emanating from the state and regulating the external behavior of a person. The principles of formal equality and human freedom, won by bourgeois revolutions, are recognized as fundamental and absolute in Western European states. Secularized legal thought rejects the regulatory capabilities of other social norms - religion, morality, customs, etc. In religious legal families (Muslim law, Hindu law, Jewish law, Chinese law), law is subordinated to religious, spiritual values ​​- the need to achieve faith in God and goodness in worldly life, and therefore in these countries human life is determined by uniform syncretic rules of behavior - religious, moral and legal. In this case, priority is given to human conscience, his spiritual attitude towards his own and others’ actions, rather than legal assessment based on formal criteria. Due to this, unlike European law, religious law is observed according to the free will of a person. In the Russian legal culture, traditionally committed to Orthodox and spiritual ideals, law is akin to truth - ideal behavior approved from a moral point of view, even if it contradicts positive state law.

Thus, the legal doctrine is a system of ideas about law that are recognized as mandatory by the state due to their authority, generally accepted nature and ability to streamline relations in society. In addition, the legal doctrine must be recognized as a source of law due to gaps in the law, inconsistency and uncertainty of legal norms, its actual application in practice by government agencies, as well as due to its merits - persuasiveness, reliability, flexibility, individuality, etc. The actual bindingness of the legal doctrine must be enshrined in the relevant regulatory legal acts Russian Federation. In such acts, it is necessary to disclose the concept of legal doctrine, determine the conditions for its operation (a possible range of authoritative works, the application of the general opinion of lawyers), establish the place of the legal doctrine in the hierarchy of sources of law and ways to eliminate conflicts between the doctrine and other sources of law.