Читать книгу The Theory of State and Law (elementary course) - Aigul Karatayeva - Страница 2

The object and the subject of science theory of state and lawEvery science has its own object and subject of study. Under the object of science is commonly understood as a particular area of objective reality, a single side of the real world in all its diversity of its manifestations – objects, processes, events, etc., which is engaged in the study of science. In other words, the object is what is being studied in science. The concept of the object makes it possible to distinguish between «areas of interest» in the various branches of scientific knowledge. The object of legal science includes the state and the law, the state-legal practice, as well as socio-political and other non-legal practice in the extent to which it affects the formation and development of state-legal phenomena.

This wording reflects the essence of the object of study, not only of law in general, but also of all private juridical science, including theory of law. However, each individual legal science examines the object of knowledge in a special way, considering it from a particular party. Specificity of a particular object of knowledge reflects the concept of a separate science subject of science. Under the subject of science to understand the system of specific laws and material properties of the object studied in a separate branch of knowledge.

Features of the subject theory of law in comparison with other legal disciplines are as follows.

Firstly, the theory of state and law explores the most common, basic, essential laws of the state and legal life. It examines the state and the law in general, in the most general form, reveals the general laws of their origin, historical development, operation and interaction, shows the steady deep connections between phenomena public and legal life.

Second, the theory of state and law explores the most important, required properties of the state and legal phenomena, revealing their nature and purpose in society. This science produces knowledge about the nature of phenomena such as, for example, the government, the state mechanism, the political system of society, law, legal norm, the legal system, sources of law, legal relations, etc… By disclosing their basic, natural, sustainable properties.

Third, the specificity of the subject theory of law lies in his double unity. The subject of science combines both state and legal phenomena of social life, state and law are studied in unity, in the relationship and interaction. This aspect of the study is related to the fact that the state and the law in real life are closely interrelated and complementary social institutions.

Fourth, the knowledge accumulated by the theory of the state and law is not simply a set of informal, namely theory, t. E. A logically consistent system of views on the state-legal u society, comprehensively explaining all Substantive and regular in it.

The general methods of knowledge of state-legal phenomenaUnder the method of scientific research to understand specific techniques, the way activity, used to obtain scientific knowledge. When talking about the method of science, it usually refers to the entire set of techniques and tools used in the study of an object.

Science theory of law also uses scientific methods system, which can be subdivided into general, general scientific .

Universal (philosophical) method of research is reflected in the use of knowledge of the principles, concepts and laws of any philosophical doctrine. The universal nature of this method stems from the fact that it permeates him all science is applied at all stages and phases of scientific knowledge. The exact same content of this method depends on some philosophical outlook adheres to the researcher. Within the philosophy of science has developed a lot of concepts, which, depending on the method of solving the «fundamental question of philosophy» – the ratio of matter and consciousness – can be divided into idealistic and materialistic.

Idealism – a group of philosophies based on the idea that the mental principle (spirit, mind, mind, will, thought, etc…) Is primary in relation to the top (matter, nature). Income interpreted as a form of spiritual. Idealism is divided into subjective.

Objective idealism asserts the existence of the spiritual first principle outside and independent of human consciousness (mind, the divine will). The best-known teachings of objective idealism are the philosophical concepts of Plato, Leibniz, F.V. Schelling, and G. Hegel.

Subjective idealism or denies the existence of any reality outside the mind of the subject, or treats reality as something that is completely dependent on the human mind. This trend in philosophy most clearly expressed in the teachings of John, Berkeley, Hume, Fichte.

In the modern period in philosophy the most common, such idealistic trends as neo, existentialism, and phenomenology.

Materialism – is a group of philosophies based on the idea that the world exists objectively, regardless of the human mind, that matter is primary, and consciousness, and thought is a property of matter that the world and its laws are knowable. Historical form of philosophical materialism are as follows: antique materialism (Democritus, Epicurus); materialism of the Renaissance (J. Bruno.); metaphysical materialism of XVII-XVIII centuries. (Galileo, Bacon, Thomas Hobbes, John Locke, B. Spinoza.); French materialism of the XVIII century. (K. Helvetius, P. Golbah, Diderot); anthropological materialism (Feuerbach); Materialism of the Russian revolutionary democrats (VG Belinsky, Herzen, Chernyshevsky, NA Dob).

In the second half of XIX – early XX century formed such forms of materialism as dialectical and historical materialism (Marx, Engels, Lenin).

Dialectical materialism – a detailed theoretical doctrine of the most general laws of development of nature, society and thought. This philosophical doctrine comes from the fact that matter – the only basis for peace, consciousness – a property of matter, recognizes the universal relationship of objects and phenomena, the movement and development of the world as a result of its internal contradictions.

The essence of the dialectical understanding of matter and movement and cognition express laws of dialectical materialism, the main ones are: the unity and struggle of opposites, the transition of quantitative to qualitative changes, the law of negation of negation. The subject of dialectical materialism is also revealed in his categories: «subject», «object», «truth», «practice», «freedom», «necessity», «phenomenon», the «essence», «content», «form», «reality» «possibility» and others. Historical Materialism – the development of a theory of society and at the same time a universal method of its knowledge. Under this doctrine society is seen as an integrated developing system, recognized the primacy of social being in relation to the public consciousness, emphasizes the role of industrial relations in social progress, the history of society is treated as a succession of socio-economic formations (primitive community).

Scientific methods of knowledge does not encompass the entire learning process, and apply only to the individual stages of this, the process for the solution of specific cognitive tasks. Such methods are largely universal and are used in many branches of scientific knowledge.

These include, in particular:

– Description (descriptions) – ordered statement of the facts and circumstances related to the phenomenon under study;

– Explanation (interpretation of the essence, the meaning of a phenomenon on the basis of existing scientific knowledge);

– Analysis (conditional on the division of the whole set of complex – into its components);

– Synthesis of (mental association sets in the unity of various phenomena, qualities opposites into a whole);

– Comparison of (pooled analysis of multiple objects with the identification of common and distinctive features);

– Analogy (thought transference of knowledge of one objectto another, less studied, but similar to them on the essential characteristics and qualities of the object.);

– Abstraction (mental distraction from nonessential, single, random properties and qualities of specific phenomena and recovering it in common, stable, necessary and substantial formed by abstracting scientific concepts.

– Mental representations about the nature of specific life events or processes.

– Logical deduction (a way of thinking that leads from the general scientific principles to the particular);

– Logical induction (obtaining general conclusions or hypotheses based on the particular facts and data movement method education from individual and special to the general and natural).

Induction method (induction) is of particular importance for the theory of law, since the latter is aimed at generalization of legal knowledge, to identify universal, sustainable and laws in the state and legal reality. Therefore, the theory of state and law – inductive science;

– Systematic approach – is to use the concepts and laws of general systems theory that allows us to investigate legal phenomena in their unity and interaction with each other, as well as other non-legal phenomena and processes of nature.

Private methods of cognition borrowed the theory of state and law of the particular, the individual sciences, and adapted for the study of state-legal phenomena. Among these methods the most commonly used are:

– Sociological – allows through observation, questionnaires, interviews and other methods to collect data on any government or legal society (on certain types of legal practice, the work of state and legal institutions, etc…);

– Statistical – allows quantitative indicators characterizing the state and dynamics of any phenomenon (offense, the state apparatus, etc…);

– Cyber – method associated with the use of concepts and laws of cybernetics (the science of the general administration) to the knowledge of the features of the process of legal regulation;

– Synergy – a method that is expressed in the application of science concepts and laws of self-organization of complex evolving systems (synergy) to the knowledge of the state and law;

– Mathematics – expressed in the application of techniques and rules of operating with quantitative data, developed in the framework of mathematics.

A special group of methods, the method formed in the framework of legal science itself.

These include methods such as formal-legal and comparative law. Formal legal method is expressed in the use of the most common (general theoretical) legal concepts and laws to address specific legal knowledge of phenomena and processes. The comparative legal method is to compare individual institutions, phenomena or processes of public-law character to identify their common and distinguishing characteristics.

The theory of state and law is closely linked with the whole system of jurisprudence (jurisprudence). It should be borne in mind that under the jurisprudence (jurisprudence, jurisprudence) understand the whole group of scientific disciplines that study the patterns of state-legal life.

legal system includes the following sciences:

1) The theory of state and law – general theoretical science of jurisprudence;

2) historical and legal science – exploring the specific historical processes and events related to the development of the legal sphere (the history of the state and law of Russia and foreign countries, the history of political and legal doctrines);

3) branch jurisprudence – explore patterns of development of any particular branch of law (constitutional law, civil law, administrative law, criminal law, etc.);

4) legal science associated with the industry, but have their own, separate subject of study (law enforcement agencies, municipal law, criminology, etc.)..;

5) complex jurisprudence – use data other non-legal sciences (physics, chemistry, statistics, medicine, etc.) to solve practical legal problems (criminology, judicial statistics, forensic medicine, forensic psychiatry);

6) the science of international law – examines the international law and practice of its application.

A special place is the theory of state and law in the system of law is as follows.

Firstly, it acts in relation to the jurisprudence in general as a basic science, as knowledge accumulates the most logical and necessary in the public and legal sphere of public life, forming a theoretical «foundation» of all legal science.

Secondly, it is in relation to other legal disciplines serves as a methodological science, because its knowledge widely used in other legal science as a means of scientific research. Of particular importance for all legal disciplines have developed a theory of the state and the rights of the basic theoretical concepts of jurisprudence, forms a specific «alphabet» of law, such as: law, legal system, legal norm, legal relationship, the subjective right, legal, legal liability, and others.

Correlation theory of law with other legal science is a two-way, as a general theory of law is not only the basis for the development of industry, application and other legal sciences, but at the same time develops itself based on the specific achievements of these sciences, analyzing and summarizing them data.

The theory of state and law are closely linked not only with the legal disciplines, but also with many humanitarian sciences, such as philosophy, a common history, economic theory, political science, sociology, and others. Such interaction is also of a bilateral nature and is expressed in «exchange» means studies, theoretical information, concepts, concrete data, and so on etc.