The 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 to the world around him, thus influencing his behavior. Another "opposite" kind of coercion is such coercion that limits the freedom" of people's actions, "causes moral and physical suffering and can cause harm to a person or categories of citizens or even lead to their death" .

In the literature, there is often such an assertion that “regulation that is not provided with state coercion will lose the quality of the legal one”, that the power of law 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 operation of law is associated exclusively with the coercive power of the state belongs to H.A. Gredeskul. Representatives of the sociological school in jurisprudence and many other jurists also paid attention to this. As Georg Jellinek remarks: "The norm works if it has the ability to influence as a motive, to determine the will." It is hardly possible to agree with the assertion that the decisive role in this belongs to coercion. Most people do not commit illegal acts not because of fear of punishment and 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 sanctioning, it is possible to formulate its concept - these are all cases of giving legal force by the state to existing and newly created social norms, due to the requirements of social development, that have fallen into the circle of state interests and, as a result, have acquired a legal character.

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

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

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

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

5. Jellinek G. The general doctrine of the state. Ed. 2nd. correction and add. S.-Pb., 1908,

6. Carbonie J. Legal Sociology / Translated from French. V.A. Tumanov. M., 1986.

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

8. Karelsky V.M. etc. 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 Sciences. N.-Novgorod, 1996.

11. General and applied political science // Under the general. ed. IN AND. Zhukova, B.I. Krasnov. 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. S. 3-12.

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

The opinions of leading legal scholars do not constitute law in the proper sense of the word in most legal systems. However, for the formation of a model of legal regulation, the importance of scientific work in the field of law has always been quite high. The legislator often took into account those 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 for interpreting laws.

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

as if the skeleton of the law and order, covers all its aspects, and life is this) "the skeleton is largely given by other factors. The law is not considered narrowly and textually, but often depends on the broad methods of its interpretation, in which the creative role of doctrine and judicial practice is manifested. Lawyers and the law itself theoretically admits that the legislative order may have gaps, but these gaps are practically not significant.

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

legal acts. In these processes, the doctrine has an impact, first of all, on the legislator himself, on 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. Separate 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 the individual parts of the law, since the spirit of the people is also subject to destructive symptoms, as if of a disease; This can happen most easily from the careless actions of the legislature, 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 certain principles and rules, which lie hidden in itself, but are brought to consciousness and clarity through science, so is law.

The task of science is to cognize the legal propositions in their systematic connection, as conditioning each other and arising from each other, in order to be able to trace the genealogy of individual legal propositions to their principle, and then from the principles to get to the most extreme ramifications. With this mode of study, the juridical propositions hidden in the spirit of national law will be brought to consciousness and revealed, which do not appear either in the direct convictions 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 a law that lives mainly in the minds of lawyers, who are considered to be its bearers. This happens at the time of the progress of the people, when the law, together with its former simplicity, loses the ability to be accessible in a certain completeness to the knowledge of all members of the people. Even customary 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, customary law may also be called the law of jurists. But this name, as a less ambiguous expression, should be preferred for the designation of the right, whose source is science.

When doctrine influences the legislator, it acts as an indirect source of law. When the legislator fixes the achievement of science in the norms of law, we can talk about the direct impact of the doctrine on the adoption of the law. So, 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 order 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 the rights and freedoms of man and citizen is the duty of the state. This idea is developed in Art. 17, where it is written: “The fundamental rights and freedoms of a person 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 given that the law in practice is not the same as the law in theory, then by taking into account these two factors, it is possible to establish the true meaning of the doctrine, contrary to the simplistic formulas often encountered, according to which they are not a source of law. These formulas make sense only if we assume, as did the prevailing opinion in France in the 19th century, that all law is expressed in legal norms emanating from public authority. However, such an opinion is contrary to the entire legal tradition and seems unacceptable. For today there is more and more effort to recognize the independent nature of the process of interpretation, which has ceased to seek exclusively 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 reckon with reality 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, the doctrine is of paramount importance, since it is it that creates different tools for the work of lawyers in different countries. Differences in this toolkit can in some cases create difficulties for foreign lawyers, giving rise to the impression that two

in fact, closely related legal systems differ significantly. This is exactly what happens when French and German law are compared. Here is one of the reasons for such a frequent, albeit superficial and artificial, opposition between "Latin" and "Germanic" law. The French jurist 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 are intended only for practitioners. The preferred tool of French lawyers are courses or systematic textbooks; in the absence of a course, they would rather resort to the latest alphabetical reference than to an article-by-article commentary.

However, the French and German styles are clearly moving closer. Commentaries published in Germany are becoming more and more doctrinal and critical, and textbooks are turning to judicial practice and legal practice in general in the country. The situation is different in Italy and in the countries of the Spanish and Portuguese languages. The works published here are surprising to the French, not only because these works characterize extreme dogmatism and the absence of judicial practice, but also because the very persons who write these works are very often practicing, are lawyers and legal advisers.

With regard to domestic legal practice (both law-making and law-enforcing), one should recognize the existence of the problem of using the doctrine. So, 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 the theory of law generally reject the role of legal doctrine in law. In addition, neither in the general theory of state and law, nor in the 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 forms of influence of legal doctrine as a source of law.

In the Soviet encyclopedic dictionary, the term “doctrine” means (from Latin) a doctrine, a scientific or philosophical theory, a system, a guiding theoretical or political principle.

"Doctrine" - a systematized political, ideological or philosophical doctrine, concept, set of principles. Often used when referring to views with a touch of scholasticism and dogmatism.

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

Based on the above definitions of doctrine, it is possible to deduce the definition of "Legal doctrine" - this is a set of principles, while it is necessary to conclude that the concept of doctrine can exist in two aspects:

1) The apparatus traditionally established in a particular country of concepts (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 the traditionally established legal doctrine and international legal norms may or may not coincide. Moreover, they can not coincide both completely (as it was 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 understood only workers and peasants).

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

1) Legal doctrine as a form that influences 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 law-making 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 is happening due to the lack of a unified scientific base in Russia 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, legislators often compare the uncomparable, and this affects the legal doctrine (its formation) as a source of law. A person who makes a law must know the specifics and correlation of the two sides of the "Legal Doctrine", and this is precisely 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

Russian legal doctrine, and the greatest role in this process should be played by professional lawyers.

1. Theory of state and law / Ed. V.M. Ko-relsky and V.D. Perevalova. M., 1998. S. 313.

2. David R. Basic legal systems of the present. M., 1996. S. 105.

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

4. Soviet Encyclopedic Dictionary / Ed. A.M. Prokhorov. M., 1983.

5. Brief philosophical encyclopedia. M.. 1994.

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

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

S.S. Khudyakov

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

Civil society is not born overnight. It has to 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 after more than eight centuries did Europe see the results of guild morality. Moreover, for the current flourishing of civil society institutions, Europe needed several more 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 completed process of self-knowledge. Power cannot exist in a vacuum, in isolation from society. The state that has enslaved society, ignoring its demands and needs, leaves the world arena as a phenomenon of yesterday. This pattern is justified both for the whole world and for Russia.

The modern state needs a direct and feedback connection 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. In order to understand the current state of social development, it is important to determine the level of development of civil society in the country.

The concept of civil society, being long known to political and legal theory, turned out to be relatively new and undeveloped for our modern science. The problem of civil society became especially urgent after the publication in 1992 of a draft of a new Constitution prepared by the Constitutional Commission. For the first time in the practice of the constitutional legislation of Russia, it included a special section - "Civil Society".

It could not have been otherwise after the acquisition of independence by the Russian Federation, 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, required an appropriate regulatory and legal design.

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

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

For the first time, the concept, which can be translated as "civil society", was used by the ancient philosophers Plato, Aristotle, Cicero to refer to the social systems that developed in Ancient Greece and Ancient Rome. Their works laid the foundation for the problems of civil society. This idea was continued in the Renaissance, in the works of G. Greece, T. Hobbes, J. Llock, C. Montesquieu, J.-J. Rousseau, but the term itself began to be used steadily only in the 18th century. Although, as the French researcher Dominic Cola notes, he was first mentioned already in the 16th century in a commentary on Aristotle's Politics.

The concept of "civil society" denoted far from the same, and sometimes even opposite phenomena. Thus, Niccolo Machiaveli represented civil society as a set of opposing interests: class, class, party. It did not have a basis for democracy - the power of the people, because the latter requires the people to be nobility, honor, courage in everything that relates to the protection of public interests. Machiavelli believed that a passive society, occasionally resisting unbearable oppression, cannot be considered civil.

Ticket 5: The structure of the 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 interconnection. 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.

The hypothesis indicates the facts, conditions, circumstances under which the execution of its prescription is subject; on the subjects to which the norm is addressed. Types: simple, complex, alternative.

A simple hypothesis is a hypothesis where one circumstance is indicated, the presence or absence of which is associated with the operation 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 action of the 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: “Compulsory treatment in a psychiatric hospital of a specialized type with intensive supervision may be assigned to a person who, due to his mental state, poses a special danger to himself or other persons and requires constant and intensive supervision.”

An alternative hypothesis makes the operation of the norms 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 a creditor under an obligation are transferred to another person on the basis of the law and the occurrence of one of the circumstances indicated in it ...”, 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 particular 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 has been granted for permanent use shall own and use this plot ...”.

A complex or descriptive disposition indicates and enumerates 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 maintaining and preserving it."

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 discretion, to sell, donate, bequeath, pledge his share, or otherwise dispose of it ...”.

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 the philosophical and sociological approaches, the 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 defined sanction is one where the size 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 entails the imposition of a fine in the amount of 50 rubles with the complete confiscation of the used radio equipment."

A complex or relatively definite sanction is one where the boundaries of adverse consequences are specified from the minimum to the maximum or only to the minimum.

For example, paragraph 1 of Art. 161 of the Criminal Code of the Russian Federation: “Robbery, that is, open theft of another's property, is punishable by corrective labor for a term of one to two years, or arrest for a term of four to six months, or 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 chooses only one that is most appropriate for the case being solved.

For example, Art. 125 of the Criminal Code of the Russian Federation “Knowingly leaving without the help of a person who is in a state of danger to life or health and deprived of the opportunity to take measures for self-preservation due to infancy, old age, illness or due to his helplessness, in cases where the perpetrator had the opportunity to provide assistance to this person and was obliged take care of him, or himself put him in a state of danger to life or health, is punishable by a fine in the amount of from fifty to one hundred times the minimum wage, or in the amount of the wage or salary, or any other income of the convicted person for a period of up to one month, or by compulsory works for a term from one hundred and twenty to one hundred and eighty hours, or by corrective labor for a term of up to one year, or by arrest for a term of up to three months.

Ticket 6.

Law system is the internal structure structural elements rights.

Comprises:

1. Branch of law - a set of rules of law that regulate a qualitatively homogeneous group of social relations through various subjects and methods of legal regulation. It is also the largest element in the system of law, which 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 that regulate qualitatively homogeneous social relations within one branch of law or at their junction, i.e. type of social relationship.

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

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

Also in the system of law 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 stable and repetitive, the interest of society and the state in their existence in legal form and protection by the state, the ability to external control, for example, by judicial or administrative bodies. But internal family relationships outside the control of the law.

Legal regulation method - the way in which law influences social relations.

The method is characterized : a) the procedure for establishing subjective rights and obligations 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 public 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, tax law.

2. The dispositive method (autonomous) establishes the rights and obligations of subjects, giving them the opportunity to choose a variant of behavior or an additional agreement to regulate their relationship. This method is inherent in civil, family, 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 the same kind.

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

Main methods:

1. Imperative - strict instructions, binding. It is inherent in the branches of administrative and criminal law, because. Violation of them results 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 areas of state power, judicial, executive and administrative activities.

4. Private provide 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, the general principles of the organization of state bodies. Constitutional norms have the highest legal force.

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

3. Criminal procedure law. It fixes the procedure for bringing persons to criminal liability, from the initiation of a case, until the court sentences. Source - Code of Criminal Procedure of the Russian Federation.

4. The penitentiary law regulates the relations that have arisen in connection with the execution of punishments. The source is the Penal Code of the Russian Federation, which fixes the legal status of those convicted, the procedure for canceling a criminal record, serving a sentence, etc.

5. Administrative law governs relations in the areas of supporting public security and order, public administration. Source - Code of Administrative Offenses of the Russian Federation.

Private branches of law:

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

2. Family law. It fixes the norms in the sphere of the family: relations among spouses, parents, children, etc. are regulated. Source - RF IC.

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

4. Civil procedure law. It fixes the procedure of civil legal 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 in the formation of the state budget, tax collection, spending and distribution of public funds.

6. Land law fixes relations with the possession, use, 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, legal entities aimed at making a profit from the work and services performed, with the risk of property liability.

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

Question 10. Legal custom as a source of law . Legal custom - 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, 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 in the historical aspect and in terms of comparing the customary norm with other social norms. Recognition by the state distinguishes a legal custom from a 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 the norm of custom in the text of a normative legal act; - in the form of a court decision, when the court refers to the norm of custom. The text of the custom is not fixed in the regulatory legal acts. If this happens, then it is no longer possible to speak of 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 legal custom: - the local nature of the norms contained in it - the norm of legal custom extends its effect to a relatively small territory and (or) to a small group of people united by consanguinity or professional grounds; - has legal force - is protected by the possibility of applying measures of state coercion; - should not contradict the norms of morality accepted in a given society and state policy in this area of ​​legal regulation (the latter issue is decided by the law enforcement authority); - exists for quite a long time and is known to a fairly wide circle of people. Application:

Customs (customary norms) are recognized as sources of law not in all states, and only in a limited circle of legal relations. The most widely used legal customs are in banking practice, commercial turnover, insurance, international trade. Legal custom consolidates long-established social relations that have become a habit. State sanctioning here, as a rule, manifests itself in the fact that state bodies in their activities use them as a normative basis for making power-administrative decisions, issuing judicial and administrative acts. Sometimes a reference to a legal custom is directly given in a law or other normative act. Participants in legal relations have the right to substantiate their claims and defend their rights with references to established legal customs. A variety of legal custom is the customs of business turnover - the rules of conduct that have developed and are widely used in any area of ​​business, 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 the norm of legal custom fills the gap resulting from the unsettledness of one or another condition in the contract or gaps in the 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 universally 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. In the Middle Ages, the work of the glossators played the same role. And in the XIX century. The Russian Governing Senate quoted in its acts the works of domestic civilists. The doctrine is now recognized as the source of law in England. The courts, when considering cases, 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 apply “the most preferable conclusions of the sense of Abu Hanifa” when considering family cases.

In modern Russian legislation and in the theory of law in the formal legal sense, the doctrine is not recognized as a source of law, but in a broad sense it is recognized. Comments on the legislation by leading scientists - lawyers and practitioners, although they are 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, improvement of legislation. The experience of world law enforcement practice shows that the importance and role of legal science is growing. Many of its developments are actively introduced into the implementation of law.

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

Of course, the 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, 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 narrowly 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: in terms of the form of expression, a legal doctrine acts as an unwritten source of law, while a normative legal act, a 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, the normative legal contract, legal precedent, judicial practice are formed by public authorities, and the legal custom is formed in the actual life of the whole society; legal doctrine has an abstract, general character, in contrast to the casuistry, specificity 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, generally accepted pre-criminal provisions, while other sources of law are observed mainly under the threat of state coercion; 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 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.

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

He is considered one of the main ones there. The opinions of Islamic lawyers 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 substantiating their decisions, refer to the works of famous English scientists, such as Bracton, Glenville, etc.

In Russia, legal doctrine is not used as a source of law. An administrative or judicial decision 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 interpreting the Constitution, as a result of which normative conclusions are drawn.

1. By its legal nature, the legal doctrine in a rational form reflects the legal reality and has regulatory capabilities - by 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.

• 2. 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 regulatory legal acts or legal practice by virtue of their authority and 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 the 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 provided by state sanctioning in legal acts 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 legal doctrine as a legal doctrine has an intellectual-volitional, purposeful character for a long time as a result of the acquisition by scientific research of the qualities of acceptance in society and the professional environment of lawyers and its application in the regulation of social 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 the principles of law, legal definitions, doctrinal interpretation of the norms 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.
• 6. Legal doctrines in the dissertation can be classified into:

in 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;

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.

7. The ways of sanctioning the legal doctrine are: making the works of lawyers binding in legal acts; reference to the doctrinal works of lawyers when deciding on a specific legal case by the judiciary and other bodies for the application of law; 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.

8. 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 reflecting narrow social interests and corporate claims by the legal doctrine, rationalism and possible errors in understanding the law.

9. 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, a 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 public authorities, 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; legal doctrine, like legal custom, is implemented by subjects of law voluntarily, based on the belief in the authority, generality of pre-criminal provisions, while other sources of law are observed mainly under the threat of state coercion; 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 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.

• 10. The 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 by observing in law enforcement the process of the corresponding formal and ritual rules, unknown to the subjects of law.
• 11. The study of the history of various legal systems of the world makes it possible 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 significance, spiritual meaning, since it has no justification on the part of jurists, and is devoid of mechanisms for creating , elimination of 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, the divine truth, the truth - law - the eternal and immutable order of the universe, and the legal profession had a sacred ideal -serving the divine higher principles - religion, morality of the people, ensuring the unity, order and predictability of public life.

Thirdly, the autonomy of the body 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 jurists to the state, the interference of the authorities in the organization and activities of legal communities causes a drop 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 legal doctrine.

• 12. Domestic legal doctrine carries spiritual and moral principles and images that arose in the era of the formation of the Russian people and statehood - V - VII centuries. - the ideal of the people's truth-rule - the eternal and divine law that determines the universe and the meaning of the life of a Russian person, sobornost, sovereign, the 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, systematization of the law of Rus' and its creative development, which predetermined its pragmatic nature, clarity and accessibility of the legal language and adherence to moral and Orthodox ideals when creating and implementation of the law.

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

The 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, due to spiritual and intellectual development, political and legal culture and moral principles of society.

This phenomenon was widespread in ancient Rome, where the opinions of such jurists as Papinian, Gaius, Paul, Ulpian and Modestin were recognized as binding on judges. Beginning with Emperor Augustus, these authors received the value of jus respondendi, that is, the judge, when making a decision, could refer to the opinion of one of the above lawyers.

In the future, this phenomenon has not received its development as an independent source of law.

Modern legal systems, with a few exceptions, do not contain rules on the application of doctrine as a source. An example is Switzerland, civil law which 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 the usual source of law, which the court can always refer to.

Definition 2

The legal doctrine, among other things, is a system of ideas and beliefs about law that prevail in society, with the help of which it is possible to creatively transform all parts of the legal system: legal awareness, law-making, law enforcement and positive law.

Legal Doctrine in Russia

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

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

In Article 38 of the Statute of the International Court of Justice, the source of law that the International Court of Justice 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 by virtue of its actual recognition during the creation and formal legal consolidation in laws of such phenomena as:

• principle of law;
• legal definition;
• interpretation of the rules of law by the Supreme Court;
• the procedure for resolving conflicts;
• ways of drawing up 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;
• the scope of application is international and national doctrines;
• method of authorization - mandatory and recommended;
• content - copying other legal sources or bearing 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 about 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 the legal literature is limited to defining and indicating that the works of lawyers are recognized as a source of law in England and in the Muslim East. Thus, the French comparatist Rene David rightly notes: “For a long time, doctrine was the main source of law in the Romano-Germanic legal family; it was in the universities that the fundamental principles of law were developed in the period of the thirteenth and nineteenth 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 the doctrine in spite of the often encountered simplistic formulas, according to which it is not a source of law.

The legal doctrine acquired the character of a source of law at the dawn of the history of law, at the time of 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 won 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 were achieved between opposing classes, when none of them could monopolize the 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-chosen pontiffs.

The recognition of legal doctrine as a source of law is due to the following reasons.

First, the formal certainty of the legal doctrine is achieved through the written form of expression of the works of lawyers and the popularity of the 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 accepted work of jurists in the legal corps and society.

Finally, the implementation of legal doctrine is provided by state authorization in normative legal acts or judicial practice, although legal doctrine may operate de facto without official approval.

Revealing the social purpose of legal doctrine as a source of law, the following should be noted.

Firstly, with the help of the legal doctrine, the gaps in the current positive law are filled, contradictions between legal norms are eliminated. In addition, the doctrine provides for the interpretation of law in accordance with its letter and spirit.

Secondly, the legal doctrine as a system of ideas and values ​​affects the consciousness and will of all subjects of legal activity, from lawmakers and law enforcers to the 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 lawyers were used by the courts not only because of their authority, but also due to the fact that 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 estate, a corporation of lawyers - persons studying and shaping law. For the provision of professional legal assistance, citizens are forced to turn to representatives of this corporation. Otherwise, the subjects of law may be deprived of the protection of the law.

Fifthly, the legal doctrine, acting as a 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 respective 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 the Western European states. Secularized legal thought rejects the regulatory possibilities 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 a person's life is determined by uniform syncretic rules of behavior - religious, moral and legal. At the same time, priority is given to human conscience, his spiritual attitude to his own and other people's actions, rather than legal assessment according to formal criteria. As a result, unlike European law, religious law is respected by the good will of a person. In the Russian legal culture, traditionally committed to Orthodox and spiritual ideals, law is akin to truth - ideal, morally approved behavior, albeit contrary to positive state law.

Thus, the legal doctrine is a system of ideas about law, which are recognized as binding by the state due to their authority, generally accepted and ability to streamline relations in society. In addition, legal doctrine should be recognized as a source of law due to gaps in law, inconsistency and uncertainty of legal norms, its actual application in practice by state bodies, and also in connection with its merits - persuasiveness, reliability, flexibility, individuality, etc. The actual compulsion of the legal doctrine should 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 legal doctrine in the hierarchy of sources of law and ways to eliminate conflicts between the doctrine and other sources of law.