Legal form form of law relationship. The relationship between the concepts “source of law” and “form of law”. Consideration of modern approaches to the classification of sources of law
Any legal law is embodied in a specific form, which becomes a necessary condition for its existence, indicates its place in the system of legislation, its relationship with other laws, and its legal force.
It is known that the methods of legal legal formation correspond to the corresponding forms of displaying legal norms: unilateral expression of the will of state bodies - a legal normative act, two- or multilateral expression of the will of subjects of law on a parity basis - a legal normative agreement, authorization - a legal custom, recognition of a precedent - a judicial precedent.
In legal science and legal practice, the term “source of law” is understood in many ways, and is sometimes used as identical to the term “form of law”. At the same time, it is important for legal practitioners to be able to clearly distinguish between these terms for correct use in law enforcement specifically forms of law. The content of these concepts will be different depending on the context in which they are applied - either in relation to the law as a whole, or in relation to a separate norm or group of norms. We can say that law has an internal and external form, which is traditionally understood, in the first case, as the internal construction of law, its structure, division into branches and institutions; The external form of law is a system of legislation.
“The internal form of a legal norm is its structure, division into hypothesis, disposition, sanction, and the external form is an article of a normative act or a group of articles in which a legal norm is reflected. In addition, the form of law is sometimes understood as the means of establishing legal norms (normative act, normative agreement, judicial precedent, legal custom). The term source of law is also used to denote this phenomenon.” . See General Theory of State and Law / Edited by V. V. Kopeychikov. - K.: Yurinkom., 1997. - p. 162.
In modern and pre-revolutionary legal literature, as indicated above, specialists have almost the same approach to defining the concept of forms (sources) of law, since these terms were used back in Ancient Rome.
But in jurisprudence these categories have their own specifics. This specificity lies in the fact that the content and form must be officially recognized by the government, or in some cases, by society. This formal recognition gives the forms of law legal force. For example, draft laws and the laws themselves may be the same in content and form, but the law refers to normative legal acts that have legal force and all the features of forms of law. Draft laws are not a form of law because they do not have legal force.
N.S. Malein, for example, believes that the concepts of form and source of law have different meaning and they cannot be identified. In his opinion, the term sources of law has many meanings:
- a) it is understood as the forces that create law, for example, the source of law can be considered the will of God, the will of the people, legal consciousness, the idea of justice, state power. They can have material and ideal content.
- b) materials underlying this or that legislation. For example, Roman law served as the source for the German civil code; the works of the scientist Potier - for the French Napoleonic Code, the Lithuanian Statute - for the Code of Alexei Mikhailovich in Tsarist Russia; the ideas of the rule of law served as a source for the preparation of the new Constitution of Ukraine and other constitutional laws;
- c) sources of law include historical monuments that once had the meaning of current legislation. For example, Russian Truth, which was the main law in Kievan Rus, Laws of Hamurappi in Ancient Babylon. see: Malein N.S. Legal principles, norms and judicial practice // State and law. 1996. No. 6. P. 12-19.
- d) sources of law also mean methods. For example. sometimes they say that law can be learned from law. See Theory of Law: Course of lectures: Tutorial for law schools. - K.: Venturi, 1996.--pp.34-35.
The choice of the term “sources of law” is attributed to Titus Livy, who in his “history” calls the Law of the 12 Tables the source of law. Historians of state and law even today call historical monuments sources of law.
In the past and today, the concept of “sources of law” is approached essentially from two positions:
- 1) it is understood as a material source of law - i.e. where does the content of the norm or law-making power come from; for example, state power, the State Duma, the President of Russia, the judiciary;
- 2) formal source of law - a way of expressing the content of rules of behavior or what gives the rule a generally binding character.
“The ambiguity of the term “sources of law” requires the theory of law to bypass it and replace it with another term - “forms of law.” Forms of law are essentially different types rights that have developed historically and which are chosen by the state, they differ in the way they formalize the content of the rules of law. This is the external form of existence of the content of legal norms” See: Razumovich N.N. Sources and form of law // Soviet state and law. 1988. No. 3.p.54.
Thus, the form of law is the external design of the content of generally binding rules of behavior that are officially established or sanctioned by state authorities or generally recognized by society - legal customs, decisions made in national and local referendums.
This term is often used in two aspects: the social (material) source of law or the legal one.
If by source we mean what gives rise to law or legal norms, and this is the meaning in which this term is usually used, then it should be noted that for the subjects who establish legal norms and the subjects who apply them, the sources of law are different. So, in the first case, the source is a legal motive, social relations that are of a legal nature, i.e. those that can and should be regulated by legal norms, typical types of behavior, specific actual legal relations, legal principles, laws, international legal treaties , universal human values, the achieved level of legal culture and legal awareness.
Sources of law are what gives rise to law, brings it to life. It is customary to distinguish between sources of law in the so-called legal and legal sense. Law-forming sources are social needs, which are refracted through the will social groups And individuals. Law serves the purpose of meeting the needs of society, social groups and individuals. Sources of law in the legal sense, according to modern theory, is the current legislation in specific forms of its expression. This is the constitution, other constitutional acts, current laws adopted by parliament, acts of the president, government, local representatives of institutions, etc.
The problem of the genesis (origin) of law or legal formation allows us to understand the essence and leads to an understanding of the quality of laws, on which the state of legality and order in society depends.
As noted earlier, law, like the state, arises from the need to manage social processes, streamlining of interpersonal relations in connection with the complication and improvement, ultimately, of social production. Law is always socially conditioned.
“It is customary to distinguish three main types of such conditioning:
- 1. Legal form is given to already established social ones, the content of which consists of the mutual rights and obligations of the parties, that is, actually arisen legal relations, which takes place, first of all, in the economic sphere;
- 2. Based on knowledge of trends in social development, the state can enshrine in law relations that have not yet fully developed, actively promoting their establishment in social practice;
- 3. The direct basis for the emergence of law can be legal practice.
So, law has its source (in the broad sense of the word) of social relations, the need for regulation of which arises in life and must be recognized by the legislator. This means that the legislator has views, ideas, and recognizes the opinion that a certain set social connections, a certain type of behavior of society participants must become a generally binding rule, acquire the form of universality, and become law. There cannot be anything in the law that is not contained in legal consciousness, which acts as an ideological source of legal norms. Having recognized this need, the state directly formulates the established legal norm or sanctions the rules of behavior already established in life and thereby gives them the quality of a legal norm.” See General Theory of Law and State: Textbook / Ed. Lazarev. - 2nd edition, revised and additional - M.: Yurist, 1996. - p. 140.
It should be emphasized that ideally the point of view of the legislator is the point of view of necessity. Characterizing the need embodied in legal norms, it should be noted that it is associated not only with objective, but also with subjective factors. Its appearance is due to the corresponding volitional acts of the legislator, his knowledge, experience, and level of culture. Accordingly, law becomes an objectified form of social consciousness and represents a practical awareness of reality, an assessed spiritual development of social existence. Law expresses the will of specific people with their strengths and weaknesses who develop draft laws, discuss and adopt them. The operation of laws also requires the volitional behavior of the recipients, the subordination of their volitional relationships to the law, realized in the conduct (activities) of people.
Law offers not only legal norms contained in legislation and other sources, but also cash (subjective) rights of individuals and legal entities, their powers. In the first case we are talking about law in the objective sense (objective law), in the second - about law in the subjective sense (subjective law). These terms are accepted in legal science. The rules of behavior that have developed in life and are recognized by people in the form of legal norms are objectified in legislation (in judicial practice or other sources of law) and become independent from any subject, even belonging to the ruling class (clans), parliamentarians, etc.
The distinction between objective and subjective law has cognitive and practical significance. It reveals, on the one hand, the relative independence of objective law from man, because people directly or indirectly participate in lawmaking; on the other hand, the relative dependence of subjective right on who has it, because in any state you can use your rights not unlimitedly, but only in such a way as not to cause harm to other people, society and the state. It is impossible not to take into account that there is a close relationship, organic dependence and interaction between objective and subjective law. Therefore, we should talk about two sides of a single law - objective and subjective, without the interaction of which will cannot exist and be embodied in life, elevated to law.
Depending on the nature of the legal process in a particular state, in a given period of time, there are certain intervals between the formation of one or the other side of the law, due to which there is an apparent “priority” of one type or (side of) law over another. “So, in the early periods of the development of human society during the initial emergence of law, as well as at present in various modern states (England, USA, India, etc.), the decisive place among the sources of law is occupied by judicial practice - case law" see: Alekseeva L. Judicial precedent: arbitrariness or source of law? // Soviet justice. 1991. No. 14. P. 2-3..
In this case, the approval of subjective law with the help of individual state acts often goes ahead of the formation of general legal norms. Judges decide cases by issuing specific individual acts of recognition of rights (responsibilities), and thereby legal relations of a personal nature. On this basis, a uniform judicial practice is created, giving rise to a general rule, which is either fixed by the highest judicial body or included in legislation (status law). In this case, the subjective recognition of the right in a temporary sense, as it were, overtakes the objective one. Sooner or later, subjective law (legal rights of participants in relations) must receive general state recognition.
If the state actively legislates and the main source of law is the regulatory legal acts of government and administrative bodies, legal precedent is recognized to a small extent or not at all (even formally) as a source of law, then objective law as if precedes the subjective. General legal norms are established, in accordance with them, and on their basis legal relations arise, i.e. the requirements of the legal norm are individualized, specified, in relation to the actual situation in the form subjective rights and legal obligations of the parties. And in this case, it only seems that legal relations depend entirely on the legislator, and not on the system of factors and, ultimately, on the economic basis of society. General norms of laws remain on paper - (the law does not apply) if they are not embodied in the actual rights (responsibilities) of subjects of law. Consequently, outside the subjective there is no implementation of the general norms of the legislator.
Terminological disputes regarding the concept of “source of law” are not always scholastic. Some scientists call normative legal acts, customs, and precedents forms of law, others - sources. But different definitions of the same phenomena only emphasize the diversity of manifestations of their essence. Therefore, you can use both concepts, having first understood the content of each.
“They talk about the sources of law, first of all, in the sense of the factors that feed the emergence and operation of law. These are the law-making activity of the state, the will of the ruling class (the entire people) and, ultimately, as noted above, the material conditions of life. The sources of law are also written in terms of knowledge and are called accordingly: historical monuments of law, archaeological data, current legal acts, legal practice, contracts, judicial speeches, works of lawyers, etc. However, there is a narrower meaning of the concept “source of law”, indicating what guides practice in solving legal cases. In continental countries these are mainly regulations. The contract as a source of law has a relatively small distribution, custom has almost no place, and precedent is rejected by the continental legal system.” See General Theory of Law and State: Textbook / Edited by V.V. Lazarev. - 2nd ed., revised and additional - M.: Yurist, 1996. - p. 143.
Essentially we are talking about the external form of law, meaning the expression of state will externally. The form of law is ideally characterized by a number of features. It is intended, firstly, to express the normatively enshrined will of citizens and ultimately must be conditioned by the existing socio-economic basis; secondly, to consolidate and ensure the political power of the people, to serve their interests; thirdly, to establish the priority importance of the most democratic forms, such as laws; fourthly, to be an expression of democratic procedure and the passage of regulations in the legislature.
Summarizing all of the above, we can draw the following conclusions:
The source of the positive (emanating from the state) should be understood as a form of expression of state will aimed at recognizing the fact of the existence of a right, its formation, change, or stating the fact of the cessation of the existence of a right of separate content.
The source of extra-positive (superpositive) law is seen in the objective idea of reason, in the “nature of things”, in manifestations of the divine will, etc.
Varieties of sources of positive law are legal custom, i.e. a rule of behavior that has developed historically due to constant repetition and is recognized by the state as mandatory; legal precedent - a decision on a specific case, to which the state gives the form of a generally binding one in subsequent disputes; An agreement is an act of expression of the will of the participants in social relations themselves, which receives the support of the state. IN modern conditions The most common sources of positive law are law and regulation.
The contradiction, according to the authors who consider the will of state bodies to be a legal source, lies in the fact that this will does not create social relations, but formulates and reflects them to one degree or another reliably. Therefore, it is more logical, according to legal theorist V.V. Kopeychikov, the source of the right is considered to be that which generates them, and does not create or formulate them, because the right can be secured outside the official form - legislation. On the other hand, the concept of the form of law reveals how law and legal norms are established and displayed externally. From this point of view, the establishment of law is the methods (types) of legal rule-making (law-making), i.e. the legalization of law by bodies state power and governance through delegated or authorized law-making, recognition of judicial precedent, etc.
The importance of separating the forms of establishing and displaying law also lies in the fact that all acts of rule-making in a broad sense contain and reflect norms of law. For example, acts of recognition of judicial precedent or sanctioning of custom do not contain legal norms, they are merely their force of legal bindingness.
Therefore, these acts do not create rights, but only recognize them - they legalize them. “For a subject that uses and implements legalized law, all other sources do not matter” see: Bogdanovskaya I.Yu. Concepts of judicial rule-making in “common law” // Problems of bourgeois statehood and political and legal ideology. M., 1990. pp. 71-83.. Because only an officially published legal document is the source of his rights and obligations under certain conditions, again officially established.
10. Sources and forms of law: the concept of correlation and types
Concept
As an integral phenomenon of social reality, law has certain forms of its external expression. Reflecting the features of the content structure, they represent ways of organizing law externally.
To denote this phenomenon, the legal literature uses the concepts “form of law” and “sources of law” as identical.
The form of law means certain ways of external expression of law as one of the components of the “legal form”, in other words, as a narrower independent phenomenon. The purpose of this form is to organize the content, to give it the properties of a state-imperious character.
In science, a distinction is made between internal and external forms of law.
By internal we mean the structure of law, a system of elements (regulatory regulations, institutions, industries).
Under the external – an objectified set of legal sources that formally establish legal phenomena and allow the recipients of legal provisions to become familiar with their real content and use them.
Ratio
The concepts of “form of law” and “source of law” are closely interrelated, but do not coincide. If the “form of law” shows how the content of law is organized and expressed externally, then the “source of law” is the origins of the formation of law, the system of factors that predetermine its content and forms of expression.
The source of law is determined in the legal literature is ambiguous: both as the activity of the state to create legal regulations, and as a result of this activity.
The dialectical relationship between the system of sources and forms of external expression of law determines the specifics of specific legal systems. In some states, legal acts of parliaments have become predominant, in others - delegated legislation of governing bodies, in others - precedents and court decisions, in fourths - religious norms (Koran, Sunnah, Ijma), etc.
Types of forms of law
Legal custom- one of the most ancient types of social norms. By its nature, legal custom is quite conservative, since it arose as a result of repeated repetition and generalization of the most rational options for socially significant behavior of people, passed on from generation to generation. Custom historically preceded law. It regulated such socially significant relations where legislative intervention was either undesirable or premature.
Legal precedent represents a decision of a government body that is taken as a model (rule) for subsequent consideration of similar cases. A precedent can be either judicial or administrative.
Agreement with normative content.
Regulatory agreements are becoming increasingly widespread in constitutional, labor, civil, international and other areas of law. They are domestic and international, constituent and ordinary, standard and current.
Any contract with normative content has the following properties: 1) contains a rule of a general nature; 2) voluntariness of the conclusion; 3) community of interest; 4) equality of the parties; 5) agreement of the participants on all significant aspects of the agreement; 6) equivalence and, as a rule, compensation; 7) mutual responsibility of the parties for failure to fulfill or improper fulfillment of accepted obligations; 8) legal support*. Unlike transactional agreements, a normative agreement does not have a personalized, individual, one-time nature; its content consists of general rules of conduct - norms.
Regulatory acts:
1) come from the state, express a balanced state will. Moreover, they are the result of the law-making activities of competent (authorized by law) government bodies. Other, non-state organizations (joint-stock companies, trade unions, etc.) can also adopt acts of this kind, but only with the knowledge (preliminary or subsequent sanction) of the state;
2) their main content consists of typical normative regulations that have a certain legal force and establish a unified, state-authoritative procedure for regulating socially significant relations, limited in time, space and circle of addressees;
3) they have a strictly defined documentary and written form (law, decree, resolution, etc.). These are official acts and documents that have established symbols and details. Their content is properly structured and presented in document style using specialized and generally accepted terminology;
4) are adopted and implemented in a legally regulated procedural manner;
5) their implementation is ensured by a set of government measures (economic, organizational, coercive, etc.).
Regulatory legal acts should not be identified not only with normative ones, but also with other legal (legal, interpretative) acts that have their own specific specificity.
If a normative legal act is aimed at regulating the most typical, mass relations (Criminal Code of the Russian Federation), then acts of application of law regulate specific life situations, isolated cases (court verdict);
If a normative legal act is designed for an indefinitely large number of situations, then the act of applying the law is for a one-time implementation;
If a normative legal act is not personalized and is addressed to an indefinitely large number of people who find themselves in a typical life situation, then the act of application has a specific addressee.
The source of law can be considered:
■ in a material sense - these are social relations that need legal regulation;
■ in an ideal sense, it is a set of legal ideas that determine the content of legal norms, i.e.
Legal consciousness (legal ideology);
■ in a special legal sense - this is a form of law, i.e. a way of externally expressing and consolidating the content of a legal norm. In the theory of state and law, the concept of “source of law” is considered as a form of law. Types of forms of law:
1. A normative legal act (NLA) is a legal act adopted by a competent subject of lawmaking and containing rules of law (law, by-law, statute). It is the main source of law in the Romano-Germanic legal system.
2. Legal custom - a historically established rule of behavior sanctioned by the state; authorization is carried out by referring to custom without textually consolidating the rule in a normative legal act, otherwise the custom turns into legal acts. It is the main source of law in the countries of equatorial Africa and Oceania.
3. A normative agreement is a voluntary agreement reached by the subjects of lawmaking, containing rules of law binding on the parties. If an agreement is not concluded by law-making subjects, it is subject to state registration (an agreement on the division of joint powers between the federal center and the subjects of the federation) or ratification (an international treaty).
4. Legal precedent (judicial or administrative) is a decision on a specific legal case, which later becomes a model for resolving similar cases. It is the main source of law in the Anglo-Saxon legal system.
5. Doctrine (legal science) is the works of legal scholars, on the basis of which the law enforcement agency makes a decision on a specific legal case. Common in Anglo-Saxon and Muslim legal systems.
6. Legal consciousness is a set of ideas, feelings, emotions on the basis of which law enforcement acts are adopted. It is the only source of law during revolutions, when the old law has already been destroyed and a new one has not yet been created.
7. Religious texts are currently characteristic of Islamic law; this is the Koran - a holy book containing the commandments and teachings of Allah, the Sunna - a collection of biographies of the Prophet Muhammad, who brought to life all the commandments of Allah. The Bible is the source of law in the Vatican. Generally religious texts are sources of law in theocratic states.
8. General principles of law - fundamental principles legal system, defining the essence and purpose of law in society. They are used to overcome gaps in the law.
Thus, there are a variety of sources of law. In the Romano-Germanic legal system, a normative legal act (main source), legal custom, normative agreement and general principles rights.
The categories “source of law” and “form of law” are among the central ones in legal science. However, until now, no single, generally accepted definition has been developed. Further development of these issues is undoubtedly a necessary condition for the development of legal theory.
The concept of "source" is usually interpreted as:
a) “That from which something comes, arises, results; the original cause, the basis for the origin of something”;
b) “A written monument, a genuine original, on the basis of which scientific research is based” Ushakov D.N. Dictionary modern Russian language. M.: Alta-Press, 2010. P. 691. .
The concept of “form” is a philosophical category and is defined as “a way of existence, organization and expression of content”, while content is interpreted as “the unity of all the constituent elements of an object, its properties, internal processes, connections, contradictions and tendencies” Philosophical Encyclopedic Dictionary / Ch. Editor: L.F. Ilyichev, P.N. Fedoseev, S.M. Kovalev, V.G. Panov. M.: Sov. Encyclopedia, 2009. P. 621. .
In accordance with these definitions, the term “source of law” can be characterized from two sides. Firstly, as a phenomenon that is inherently law-forming, primary in relation to law, determines it, is the “source” of the formation of legal norms. Secondly, as an external expression, a form of existence of a legal norm, a source on the basis of which legal relations arise.
Based on this, sometimes sources of law are distinguished in the material sense (social, economic relations, living conditions), in the ideal sense (legal consciousness, culture) and in the formal legal sense (the way of expressing and consolidating the rule of law). That is, depending on the context, the term “source of law” is understood either as the reasons for the emergence and formation of law as a phenomenon, or as formally expressed legal norms taken in themselves. It should be noted that in Russian legal science the “formal legal” idea of the source of law is the most common.
As for the “form of law,” as a category, it reflects everything that exists in society, all social relations. The form of law refers to the ways of expressing the law. There are internal and external forms of law. The internal form is the structure of law, the entire system of elements. The external form is a complex of legal sources that consolidate legal phenomena and allow one to become familiar with their content.
Along with the concept of “form of law” in the legal literature one can find the concept of “legal form”. If the form of law is understood as a way of existence, the external expression of the law itself, then the legal form is considered as “a form of organization of non-legal - economic, social, political and other spheres of society with the help of law” Marchenko M.N. Sources of law. M.: Prospekt, 2011. P. 39. .
The two categories: “source of law” and “form of law” are quite closely related, and very often they are either identified or differentiated. There are two main solutions to this issue.
The first solution is to completely identify these concepts. The source of law is reduced to the form of law and vice versa. In this case, usually “the form (source) of law is understood as certain ways (techniques, means) of expressing the state will of society” Baitin M.I. The essence of law. (Modern normative understanding on the verge of two centuries). M.: Law and State, 2010. P. 67. .
The sources (forms) of law in this definition are legal custom, normative act, judicial precedent, normative agreement, etc.
The essence of the second solution to the question of the relationship between the source of law and the form of law is to consider these concepts as completely inconsistent with each other. In this case, the concept of “form of law” is understood as a way of existence, organization, external design of the content of generally binding rules of behavior, and the concept of “source of law” as a system of law-forming factors that predetermine the content and form of law.
It is obvious that these approaches suffer from some one-sidedness in considering the issue. It seems optimal that the concepts “source of law” and “form of law” should be considered in some cases as identical, and in others non-identical. It all depends on what specific meaning the researcher puts into these terms. Thus, attempts are often made to classify sources of law according to various criteria; they are divided into real and formal, primary (material) and secondary (formal legal) sources of law. In this classification, the primary, material sources of law are understood as socio-economic, political reasons, conditions for the emergence and origin of law. Secondary sources of law act in the form of normative legal acts, are external forms of expression of law, and are historically determined by primary sources of law. Based on this, according to M.N. Marchenko “The coincidence of the form and source of law occurs when we are talking about secondary, formal legal sources of law” Marchenko M.N. Sources of law. M.: Prospekt, 2011. P. 57. .
When we are talking about the primary sources of law, there cannot be their coincidence with the forms of law, since in this case these concepts relate to different spheres of social life and represent two interrelated but different phenomena.
Also, the distinction between the concepts of “source of law” and “form of law” is quite clearly visible in general theoretical and scientific works; in legal practice, these concepts are almost universally identified by Petrov A.A. How do the concepts of “source” of law and “form” of law relate. URL: http: //www.pravo.ru/faq/view/235/.
Thus, the question of the relationship between these concepts, as well as the question of their understanding and interpretation in modern legal science remains open, although quite developed. Big role V in this case plays the theoretical position of the scientist, the approach to understanding law in general, sources and forms of law in particular.
2. THEORY AND HISTORY OF LAW AND STATE, HISTORY OF TEACHINGS ABOUT LAW AND STATE (SPECIALTY 12.00.01)
2.1. SOURCE OF LAW AND FORM OF LAW: RELATIONSHIP OF CONCEPTS
Miroshnik Svetlana Valentinovna, Doctor of Law Position: Head of the Department of State and Legal Disciplines. Place of work: Russian Academy of Justice, Rostov branch. Email: [email protected]
Abstract: The question of the relationship between the concepts of “source of law” and “form of law” still remains one of the most controversial. The author comes to the conclusion that the form and source of law are identical categories when it comes to secondary, formal legal sources of law.
Key words: law, source of law, form of law, mechanism legal regulation, improvement of legislation.
THE SOURCE OF LAW AND THE FORM OF LAW: THE RATIO OF CONCEPTS
Miroshnik Svetlana Valentinovna, Dr of Law. Position: Head of State and legal disciplines chair. Place of employment: The Russian Academy of Justice, Rostov branch. Email: [email protected]
Abstract: The question of the relationship between the concepts of “source of law” and the “right form” still remains one of the most controversial. The author comes to the conclusion that the form and source of law are identical categories when it comes to the secondary, formallegal sources of law.
Keywords: law, the source of law, the right shape, the mechanism of legal regulation, improvement of legislation.
Historical experience convincingly proves that with the development and improvement political organization In society, the mechanisms of legal regulation of social relations are also changing, the range of sources of law is expanding, the system of co-subordination is changing, as the construction of harmonious relations between the individual, society and state continues, the structure and distribution of competence between public authorities is changing. In this regard, the study of the relationship between sources and forms of law, their classification and system-hierarchical construction are of undoubted “eternal” scientific interest.
Legal science, despite its enormous legal heritage, the origins of which we will find in the works of ancient philosophers, has not come to a consensus on what law is. It is no coincidence that the famous German scientist I. Kant noted that the question of what law is is as difficult for a lawyer as the question of what truth is for a philosopher.
In legal science, several approaches to defining the concept of law have developed. From the point of view of normativism, law is a set of legal norms established and protected by the state that regulate social relations.
Representatives of the moral concept of law consider law as a system of concepts about legal regulation contained in the public consciousness and acting as an imperative that actually determines the nature of the behavior of participants in social relations.
The sociological school of law defines law as a set of social relations that has developed in society, protected and protected by the state.
The natural law concept of law is based on a clear distinction between natural and positive law. Positive law is legitimate only if it implements such principles of natural law as freedom, equality, justice, and private property.
In our opinion, the study of the essence of law must be carried out through the prism of the unity and difference of law and law, taking into account the basic ideas underlying legal reality.
Based on this, law can be defined as a system of legal ideas based on the principles of justice, equality and responsibility about the proper and possible behavior of participants in social relations, the legal consolidation and implementation of which makes it possible to create legal regime, harmoniously combining public, state, private and personal interests.
The study of forms of law involves highlighting a number of methodological premises. Firstly, we should not forget the relationship between the form of law as a legal category and the form of law as a philosophical category. In the latter case, based on a general philosophical understanding of the form of law, we can formulate the following definition of the form of law as a philosophical category: the form of law is a way of organizing and interacting elements and processes of the legal system with each other and the surrounding world.
Secondly, the form of law is always characterized by a certain social essence and content.
Thirdly, the form of law and the content of law are paired legal categories, since it is impossible to separate the form and content of law, which interpenetrate and complement each other. Hegel also drew attention to this: “content is not formless, but form is at the same time contained in the content itself, and represents something external to it.”
Fourthly, when studying the form of law, it should be remembered that this is a dynamically developing legal phenomenon. Changes in politics, economics, and the social sphere are adequately reflected in legal norms, and, consequently, in the forms of law. This process can be carried out by filling the old form with new content or by creating a new financial law. For example, the activities of the Constitutional Court Russian Federation, other courts led to the emergence new form rights. Case law has begun to actively develop in Russia.
Gaps in Russian legislation
The question of the relationship between the concepts of “source of law” and “form of law” has remained one of the most controversial for many years.
Some scientists argue that they are not identical. For example, T.V. Kashanina understands the sources of law as the will of law-making subjects. Accordingly, the sources of law can be the will of humanity (human rights, principles of law); will of the people (referendum norms); will of the state (legislative norms); will of the team (corporate norms); will of citizens, organizations (contractual norms). The form of law is the reservoir where legal norms are found. T.V. Kashanina identifies ten forms of law from a historical perspective, namely: legal custom, religious texts, legal precedent, business custom, legal consciousness, normative act, legal doctrine, judicial practice, moral views, contract.
A number of scientists, also asserting the non-identity of the categories under consideration, understand the sources of law as the force that creates legal regulations, and the forms of law as the external and internal expression of law.
At the same time, many researchers consider the concepts “form of law” and “source of law” to be synonymous. In particular, M.I. Baytin proceeds from the fact that the form (source) of law is “certain ways (techniques, means) of expressing the state will of society. The form shows what the external manifestations of law are, in what form it exists and functions in real life. With the help of the form, the state will is given an accessible and generally binding character, and this will is officially communicated to the executors. Through the form, law, as it were, receives a “start in life” and acquires legal force.”
Indeed, is it possible to imagine the existence of formless law or a form of law without content? The content of law takes on a certain form and becomes its legal shell.
When considering the problem of the relationship between sources and forms of law, we proceed from the fact that this issue cannot be resolved unilaterally, straightforwardly. The analysis shows that “in some respects the form and source of law may coincide with each other and be considered identical, while in other respects they may differ significantly from each other and cannot be considered identical”^].
The form and source of law are identical categories when it comes to secondary, so-called formal legal sources of law. “This emphasizes that, among other things, the identity of the form and source of law, where the form indicates how the legal (normative) content is organized and expressed externally, and the source indicates what those legal and other sources, factors, predetermining the form of law under consideration and its content.”
As for the primary sources of law, it is incorrect to consider sources and forms of law as interchangeable categories. Material, ideal, social sources of law represent certain factors that significantly influence the processes of lawmaking and law enforcement.
Thus, the concept of “source (form) of law” can be considered in several aspects:
In the material sense of the word, the sources of law include the material conditions of society, which give rise to the need for legal regulation of social relations, the need to achieve a compromise between the directly opposing interests of various subjects.
In the ideal sense of the word, the legal consciousness of the legislator, who believes that this group public relations must be regulated by appropriate legal regulations. In many ways, the timeliness of the adoption of a particular regulatory legal act depends on the will of the competent government body.
Finally, the source of law in the formal sense of the word is various forms of external expression of the rules of behavior of participants in social relations.
These include: legal customs, regulatory legal acts, judicial (administrative) precedents, regulatory treaties, religious texts, legal doctrine.
Not all of the named sources of law are related to Russian law. Since the Russian Federation is a secular state, religious norms cannot be used to regulate public relations. We consider scientific doctrine as an informal source of law that can influence the position of law-making and law enforcement bodies.
Sources of law, depending on their legal meaning and order of appearance, can be divided into primary, secondary and additional.
The primary source of law is the Constitution of the Russian Federation, which contains basic ideas, underlying the mechanism of legal regulation of social relations.
Secondary sources of law should be recognized as regulatory legal acts, regulatory legal agreements, as well as legal customs.
Additional sources of law include judicial precedents that appeared in the Russian legal system relatively recently, but have already firmly occupied their “niche” in the regulatory system.
In domestic science and practice, there is an ambiguous attitude towards precedent practice. It seems that her naked denial or simple ignoring is “yesterday’s day.”
In reality, there are legal precedents. They are directly involved in the legal regulation of social relations. Further scientific research should be aimed at solving problems related to ensuring the uniformity of Russian case law. Its flexibility, as a very positive quality of this source of law, is in some cases offset by “wild” inconsistency, when the same court does not take into account its own conclusions made earlier on a similar legal dispute.
In legal science and practice, the “eternal dream” is the creation of an ideal system of sources of law. Some researchers consider this to be a utopia altogether, since social relations are very dynamic and the legislator objectively does not have time to timely cover, anticipate, and reflect all their diversity in normative regulations.
In our opinion, the creation of an ideal system of sources of law is quite realistic. In many ways, the solution is
the problem under consideration depends on a clear definition of the criteria for an ideal, and, consequently, effective form of law. It should be characterized by:
Clear legislative consolidation of its social and moral orientation;
The optimal combination of such legal means, as legal permissions and legal prohibitions, legal incentives and legal restrictions, legal incentives and legal punishments;
Scientific development (which is expressed, in particular, in increasing the role legal doctrine, introducing the practice of developing theoretical models of the operation of legal regulations);
Systemic relationship with other sources of law;
Legitimacy (support from the majority of the population, awareness of the need to adopt these legal regulations, recognition of their fairness);
High technical and legal quality of the contained norms, absence of reference norms;
Simple mechanisms implementation;
Predictability of the legislator, ensuring the necessary dynamics of development of the country's legal system.
References:
1. Hegel G.V. Encyclopedia of Philosophical Sciences. - M., 1974. T.1. P.298.
2. Kashanina T.V. Evolution of forms of law // Lex russica. 2011. No. 1. P. 34 - 53.
3. See: Ofman E., Stankova U. Resolution of the Supreme Court and the Labor Code of the Russian Federation // Labor law. 2011. No. 5. P. 85 - 93; Ershova E.A. Sources and forms of labor law in Russia // Labor Law. 2007. No. 10. P. 53.
4. Baytin M.I. The essence of law (Modern normative legal understanding on the verge of two centuries) - M., 2005. P. 67.
5. Marchenko M.N. Sources of law: Textbook. allowance. -M., 2008. P. 57.
6. Marchenko M.N. Sources of law: Textbook. allowance. -M., 2008. P. 57.
7. Miroshnik S.V. On the issue of subjects of financial law. // Business in law. International economic and legal journal. No. 2, 2012, pp. 151-154
8. Miroshnik S.V. Financial and legal regime of social extra-budgetary funds. // Gaps in Russian legislation. International legal journal. No. 2, 2012, pp. 273-276
9. Miroshnik S.V. Judicial practice in the mechanism of legal regulation of administrative relations. // Gaps in Russian legislation. International legal journal. No. 6, 2012, pp. 201-206
10. Miroshnik S.V. On the question of the sources of administrative law. // Gaps in Russian legislation. International legal journal. No. 6, 2012, pp. 207-210
Literature list:
1. Hegel GV Encyclopedia of Philosophy. - M., 1974. V.1. S.298.
2. Kashanina TV The evolution of forms of law // Lex russica. , 2011. Number 1. Pp. 34 - 53.
3. See: E. Ofman, Stankov W. The Supreme Court and the Labor Code of the Russian Federation // Employ-
ment Law. , 2011. Number 5. Pp. 85 - 93; Ershov EA Sources and forms of labor law in Russia // Employment Law. 2007. Number 10. S. 53.
4. Baytin MI The essence of law (modern regulatory pravoponimanie on the verge of two centuries) - Moscow, 2005. S. 67.
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