The concept of wide comprehension
- Тип работы:
- Государство и право
Детальная информация о работе
Выдержка из работы
1. GENERAL DESCRIPTION COMPREHENSION
1.1 Comprehension as one of the main categories of the theory of law
1.2 Basic Concepts Comprehension
2. DESCRIPTION OF WIDE APPROACH TO UNDERSTANDING THE LAW
2.1 Concept and features a wide comprehension
2.2 Value of wide comprehension of other legal
3. ISSUES OF IMPORTANCE AND WIDE COMPREHENSION IN LEGAL PRACTICE
Issues understanding of the law, without exaggeration can be attributed to the «eternal». Since the emergence of professional legal practice until today did exist, apparently, no lawyer who has not pondered the question, what is right, and not try to answer it.
Relevance of the topic due to the fact that legal science today is not produced a single position on the understanding of the concept of law. Undoubtedly, the right is one of the objects of knowledge and nayvazhkodostupnishyh mostly defined as a product and a tool of the state, a vehicle for political purposes rather than as a complex world, multifaceted reality with its own laws, its arrangement and the logic of development that distinguishes it from other areas of human being.
In numerous publications on the problems of comprehension are updated on methodological issues and general principles of the analysis of these problems. Positivist methodological doctrine comprehension, which had long been recognized widely, gave way to other teachings, including essentially been singled multidimensional, broad comprehension as a priority Modern Social Sciences.
When writing a term paper were used work of scholars such as N. Varlamov, M. Kelman, M. Kravchuk, A. Kolody, B. Kopyeychykov, P. Rabinovich, A. Skakun, A. Surilov et al.
A variety of approaches to understanding the complexity of the law is determined by law, ontological, political, ideological and religious reasons.
The aim of the course work is integrated general theoretical study of the concept of law, its nature, content and form of existence in the context of the value of basic types of law and distinguishing features broad approach to understanding the law. To achieve a certain goal outlined in the following tasks:
— Analyze comprehension as one of the main categories of theory of law;
— To highlight the essence of the basic concepts of comprehension;
— To characterize and define the features of a broad approach to the understanding of the law;
— Analyze the importance of wide comprehension problems and its application in the practice of law.
The object of study is the comprehension as scientific, intellectual and creative process.
The subject of research is basic types of comprehension, their theoretical and methodological and theoretical and practical significance at the present stage of development of legal science.
The methodological basis of the study is general scientific principles of objectivity, historical, research completeness. Given the specific themes, goals and objectives appropriate to use the following methods:
— Unity of history and logic — the disclosure of changes that have been or that theory, the concept of comprehension;
— Dialectic — the analysis of the ratio of natural and positive law, the relationship of the concepts of «right» and «law»;
— Specially-law — when installing external signs legal phenomena, their differences between themselves and simulate their definitions.
To study the criteria for assigning types of law in the applied system-structural method, and to determine their characteristics, advantages and disadvantages — A comparative legal.
concept comprehension law
1. GENERAL DESCRIPTION COMPREHENSION
1.1 Comprehension as one of the main categories of the theory of law
Question comprehension belonging to major in theory of law. In the world there are many scientific ideas and beliefs about what is right, what is its essence. Comprehension — the process and the result of human intellectual activity aimed at knowledge of law, his perception (evaluation) and related to him as a holistic social phenomenon.
Right, like the state, is the product of social development. Legally it is formed in the state organized society as the primary regulatory control of public relations. Manners, moral and religious norms of primitive society sidelined, preferring the legal regulation of social relations. Views on the right, its origin, place and role in the regulation changed with the development of the society, maturity scientific and legal thought, the influence of objective and subjective factors.
Right so unique, sophisticated and socially necessary phenomenon for the entire period of its existence, the scientific interest in it does not fail, but rather constantly growing.
Comprehension is not possible without highlighting historical aspects of the origin, formation and development of the law, but the variety of interpretations of the nature of law, its essential features leaves its mark on pravoutvorennya problems [2, c. 97].
Comprehension — a scientific category, which reflects the process and the result of purposeful mental activity a person who holds a knowledge of law, its assessment and treatment of him as a holistic social phenomenon.
The subject comprehension is always a particular person, such as: a) A citizen has the minimum legal philosophy, which is facing problems of law in general, and b) a practicing lawyer who has sufficient knowledge of the law, is able to apply and interpret legal norms in) scientist, a man with abstract thinking, which deals with the study of law, endowed with the sum of historical and contemporary knowledge, able to interpret not only the rules but also principles of law holding the methodology of the study. Comprehension is always subjective, original, although the idea of the right to be the same in the group of people walks.
The object of comprehension may be right on a planetary scale, the right of a particular society, industry, Institute of Law, certain legal provisions. This knowledge of the individual structural elements extrapolated to the law in general. It should be noted that the importance of cognitive load here are environment and interacting with the right social phenomena.
Contents comprehension skills are subjects about their rights and responsibilities, specific and general legal permissions, prohibitions, as well as evaluation and treatment of them as fair or unfair.
Depending on the level of culture, methodical provision of subject and object choice comprehension study can be complete or incomplete, correct or distorted, positive or negative [9, 113].
Normal people understand the right way it allows her own mind according to cultural traditions present era and society. For her understanding of the law in the time scale limited scope of her life. However, this does not mean that after her death comprehension disappears completely. Such elements of comprehension, as knowledge, assessment, can be transmitted to other people, and legal scholars leave behind besides writing of the law.
1. 2 Basic concepts of comprehension
A fundamental problem of the theory of law is the essence of the problem and the social nature of law.
In studying the various theories and views on the right to consider the following facts: first, the historical conditions of existence of the right in which he lived researcher, and secondly, that the result of comprehension always depends on its religious, ideological, moral position, and thirdly which side is right is taken as the basis of a concept.
Modern theories of law have a common understanding of the nature of law. And while there are a set of individual concepts, trends in legal theory, among which are the basic ones. Particularly widespread in contemporary political science and the science of law were sociological, solidaristic, the normative (neo), psychological trends as well as the theory of «revived natural law» [13, 273].
According to the theory of natural law, whose ancestors were Grotius, Hobbes, Locke, Montesquieu and others., In society, along with the legal standards set by the state, there is also a natural right. Natural law belongs to the man from birth and includes the right to life, personal liberty, private property, the right to be happy. These rights are recognized as indispensable, and every encroachment upon them others, including the state, an offense or crime in general. Positive law is set by the state in the form of laws and regulations. Underlying this are natural rights. The law recognizes the extent it meets, develops and elaborates natural rights. Unjust law does not create a right — a fundamental principle of the theory [7, p. 133].
But for all its democracy theory of natural law has significant flaws that are easily found her opponents.
Firstly, this theory is anti-historical. It contains a list of rights that had always belonged to humanity and invariably accompany it in our time and nothing they can not cancel or change. A similar principle was nominated Grotius, which is recognized as inviolable natural right that it can not be changed even by God.
Second, representatives of the theory of natural rights have no clear criteria by which we could somehow distinguish natural law from positive. Yes, Grotius recognized natural slavery. As a form of government that is most consistent with the principles of natural law, Hobbes recognized the absolute monarchy, while Locke — limited monarchy.
Thirdly, the theory of natural law could not explain how on the basis of a relatively small set of natural rights grows a variety of legal systems [11, 83−84].
Neo-Scholasticism — the latest interpretation of the medieval doctrine of Thomas Aquinas. Divine law aims to eliminate the imperfections of human and positive law, if it differs from the natural law. Proponents of neo-Thomism emphasize the predominance of natural law over human, positive, that is set by the state.
«Secular» doctrine of natural law comes from ethical primordial law of necessity under legal statutes moral requirements of natural law, based on the standards of fair behavior. For this theory characteristic is recognized as the foundation of «correct», «legitimate» rights of some natural regulatory system that does not coincide with the positive law [6, p. 124].
Positive values of natural law theory as follows: Firstly, it argues the idea of natural, inalienable rights, and secondly, because this theory began to distinguish between right and law, natural and positive law, and thirdly, it conceptually combines the right and morality.
Two types of rights recognized by representatives of the psychological theory of law, the founder of which was a Russian lawyer LI Petrazhitsky.
The right is treated primarily as a psychological activity of individual human rights, «imperative-attributive 'emotions, feelings evaluation experiences. Emotions are divided into: a) experience positive law established by the state, and b) the experience intuitive and personal rights. Man feels himself bound by the claims of others who expect from it perform certain obligations. Such psychological experiences define specific acts of human behavior and act it really, really right [1, c. 3].
In society, there is also an official right established by the state in the form of laws and other legal acts. Laws can affect the intuitive human right, the processes of formation of her will. Yet they do not always dominate the decisions that individuals make. The latter may take into account other social norms and act contrary to the installation of the official law. Therefore, existing in a society much broader right established by the state regulatory requirements and includes the totality of psychic experiences of people and not just her. Natural manifestations of psychological experiences representatives of this theory is found in ants, chimpanzees and other animals and insects and thus recognize their legal entities with someone.
The right is not seen as a social phenomenon, connected with the state, but as a somewhat intuitive, as a phenomenon that exists in the field of emotions, individual mental human experiences. Thus, government coercion is not acting as a significant criterion of law. In the foreground the personal attitudes of the individual.
The positive is that this theory draws attention to one of the most important aspects of the legal system — psychological. You can not cook and make laws without examining the level of legal culture and justice in society, one can not apply the law, not considering the psychological characteristics of the individual.
However, correctly highlighting some psychological aspects of law, the doctrine dissolves right in the individual psyche, making it identical to justice, thereby ignoring the real objective nature of law as a complex phenomenon of social life [3, c. 14−18].
The most common in our country, the normative concept comprehension (or positivist). Right — a system of mandatory, formal set of rules that express and are designed to ensure the freedom of behavior in its unity from liability and thereby act as a state-powerful criterion of lawful and unlawful conduct. This definition gives the right SS Alekseev.
In the above definition clearly enough expressed normative view of law, which has many supporters, especially among practical lawyers, as well as among scientists — representatives of sectoral legal disciplines. Supporters of the main regulatory approach consider legal rules — legislation and other acts, and guided them and each lawyer practices in their daily activities.
Supporters of the normative approach considering law as a set of rules that contain the rules of «good behavior.» This approach lies in the fact that the law is distinguished from other social norms (customs, traditions, moral, political, religious norms) on certain grounds.
Supporters of same «broad» understanding of the law (VS, RZ Livshits et al.) Based on the fact that the right is not identical legislation. In the understanding of the law emphasizes the special role of moral and legal, political and other principles.
Normatyvizmu positive value lies in the fact that this approach, firstly, enables you to create and improve the system of legislation, and secondly, provides a specific regime legitimacy, uniform application of the law, and thirdly, provides certainty formal law to clearly define the rights and obligations of the subjects fix measures and means of state coercion [16, c. 204−205].
But for all its positive aspects, regulatory approach to understanding the law is still one-sided. Right when this approach is taken as given, as external to the individual system of rules designed to govern its behavior are ignored natural and moral principles in law (except for «broad» understanding), absolute state influence on the legal system. But at the same time understanding the rights should be covered and pravoutvorennya laws and legal superstructure place throughout the public system, and law in action — a combination of standards with real human activities.
Unlike positivists historical school (G. Hugo, Savigny, KF, G. Puhta) understands law as a product of the national spirit, the consciousness of the people who lived and manifested in the relationship of its representatives. Right, like language, is an integral component of the people or the nation and develops similar laws [17, p. 94].
Formation of rights effected by the gradual opening of the national spirit in the historical process. People’s spirit determines the characteristics of public justice, and it blossoms in the law. The most comprehensive and consistent source of national spirit is folk customs. Laws also reflect people’s sense of justice. But most people’s minds is expressed insofar as perceived correctly and consistently carried out by the legislator. Therefore the main task of the legislator lies in identifying and fixing the laws of the national spirit. Formation of rights goes to the laws of objective necessity, and not at the request of individuals or bodies. The state, its agencies not invent laws and authorize the existing social order.
According to representatives of the historical school of law, every nation is inherent in its spirit and, consequently, their own sense of justice. Therefore, the law of one nation may not be suitable for other peoples and nationalities. To the people had a right to which he responds to discover his spirit, and this can only be achieved by conducting historical research. And the deeper leaving in the history of the people of the researcher, the more accurate and complete will the knowledge of the national spirit and the processes of its development.
The basis for the approach to the understanding of the law, which can be called «genetic» was the Marxist formula that class will, which forms the law determined by the material conditions of life of the class.
The genetic approach to understanding the law has developed in two directions. Supporters of one of them sees legal as early as objective preconditions law. Thus, according to EA Lukashov, «social conditionality of rights — not only determination of its content reached the level of social development, but also that certain public relations is programmed as legal» [14, c. 208].
According to another right direction does not coincide with its source material, but the content adequate to it. Supporters of this area believe that the right to admit only such regulatory system, the content of which meets certain requirements such as: reflects the objective needs of society expresses functions equitable distribution of social benefits; embodies the general principles of social justice, etc.
In both areas there is an attempt to give meaningful description of the legal system in the class-historical formations or even all formations in general, and on this basis to recognize the right of a «good», «right» right.
Content rights of different ages do not match, it editable and reflects the nature of the particular formation, ruling in her social interests, perceptions and ideas.
«Right can never be higher than the economic structure and caused it cultural development of society» — Marx.
Right, which is not seen as inflexible set of rules as well as the activities of individuals and legal entities — citizens, government and public organizations that are respected, applied and enforced legal orders are subject to the sociological study that has become widespread in recent decades. On this basis, arose and comprehension, focused on the right to action. Sociological approach to understanding the law can be expressed in the formula H.V. Maltseva «Right — it is primarily social life» [14, p. 211].
The rules state, according to supporters of sociological trends in legal theory — is only part of the law. Along with them there is a «right to live», which is nothing like the actual relations existing in society. Above all, they argue, — the study of the real order, ie those requirements, which are set in a legal norm, and the process of law in society, the specific actions of the participants relationship. In this connection justified the idea of «flexibility Law», in other words, the ability to change the legal norms in the process of application. Hence — the rejection of «nezaperechnosti» law, the requirement of freedom of judicial «discretion.» This theory is actually expanding «lawmaking» function of judge and humiliation as a law because the judge is not bound by legal rules and may, at its discretion, decide a particular case, relying on their own intuition.
Focusing on the study of the social roots of law and its effective parties, representatives of the «sociological» approach (it can also be called «dynamic») try to understand the law as an effective moment of real social life. Right LS Yavych, who argues that «legal norms dead, undead, do not constitute an effective law, if certain conditions can not be implemented in the actual behavior of people. «
For sociological theory specific structural and functional approach to the law, the legal allocation as basic, most essential elements of the law. The right is not limited law.
Law in Action gives an idea about the meaning of regulation, its ultimate goals. The State will, embodied in the legal rules governing this stage materializes in public relations, giving them legal form. Law in action is its implementation, resulting in legal relations, law, legal behavior. Urehulovanist, law and order, which are provided in the community — the necessary elements of comprehension. It is based on the study of law arose the idea of expanding the subject comprehension, that should take into account not only some legal rules, and the whole mechanism of regulation, the entire legal system. In fact, the effect of law made by the implementation (compliance, usage and application) law. In this case the specified activity involved enforcement bodies, formed relationship, it affects people of justice. In other words, operating complex machinery of the legal system, which is not limited to legal norms. This in turn means that speaking about the law and its understanding, we can not ignore those parts of the mechanism, which is not regulated by law, but without rules can not act.
A positive aspect of the sociological approach to understanding the law is the desire to know the law in action during operation. This study legal phenomena and institutions pursues the transformation of social reality, namely, the right is seen as a tool for social transformation, a means of reaching an agreement between the interests of different social groups. This brings sociological theory of law with the so-called solidaristic (social) concept of law [12, c. 67].
The basis of direction or solidaristic social concept of law (Duguit) is the idea of solidarity, that cooperation in the exercise of power of different social strata and groups who participate in political life. According to this theory, every member of society must understand the social function set right idea feel the need to commit certain actions to ensure the solidarity of all members of society. Law serves as the spokesman of solidarity, a tool that protects the «common interests» of all groups.
Thus, the social concept, considering the nature of law, presents it as a means of achieving harmony. It aims to find legal means to help eliminate possible social conflicts, ensure order in society. This involves consideration of the law is not in isolation but together with other elements of social reality — the economy, politics, morality — in their functional interdependence and interconnectedness. Hence — the emphasis on the social functions of law in society, for example, as a means of eliminating potential social conflicts, solving other social problems.
In the social concept of law the necessity of the study of law in its relationship with other elements of the social system.
Fundamentally different interpretation of law, its essence give the founders of Marxism. Looking at society as an organic holistic education, which operates and develops objective, independent of the will of the people by laws, Marx and Engels clearly and consistently distinguish between right and law. The right to understand the degree of freedom as members of society. Each class because of its special position in the economic relations of society has its own degree of freedom, their right. The degree of freedom of the members of the class society are not equal, as defined by their belonging to a certain class. Relation classes to the means of production is determined by the measure of their liberty, their class right. The contents of this law are claims to a share class of material and spiritual goods, which are produced by society, to participate in the political life of the society in managing state affairs and to freely express their attitude to the social structure and expression in literature and other artistic fields [10, c. 112].
So, in a society divided into classes, with their conflicting interests, there is no single measure of freedom, the only law. Each class has its own right, which is not only different from the rights of other classes, but also antagonistic towards him. Competing Rights decided that the economically dominant class — the owner of the means of production — takes over state power and holds his right in the form of laws, gives it a universal character and requires compliance with established his laws from all members of society under penalty of State coercion.
The idea of multi-dimensional, multi-faceted approach to the law is perhaps most accurately reflects the joint efforts of scientists to study it. Whatever the views on the right are not adhered, all against unilateralism. And life is confirmed by showing that the consideration of legal issues, such as the position of a particular sociology of information of a party or a psychological aspect can approach the opening of new features right to enrich under its concept. That means opening new relationships, parties, and rice is the process of deepening the concept of law.
Not one kind of right side — the standard, its genesis or right in the action — gives the concept of law. Each of them — just an abstract of his vision. The concept of law is as the amount of knowledge synthesis of all legal disciplines who study law in all its real manifestations sides, features, relationships, perspectives.
2. DESCRIPTION broad approach to understanding the law
2.1 Concept and features a wide comprehension
Wide approach to the law is fairly common in legal science, he developed in science (60−80 years of XX century.) And opposes «vuzkonormatyvnomu» approach to understanding the law. Wide approach is based on the concept of law as a unity of legal ideas, norms and relationships. His supporters included the content of the right ideas, norms, relationships. This position was originally grounded in the works of P. Lv, EB Pashukanysa, and further development was in the works. F. Kechekyana, A. Piontkovsky, AK. Stalhevycha, YM Mykolenko, NV Vitruka VD Zorkin, VP Kazymyrchuka, RV Maltsev, RZ Lifshits, EA Lukasheva, NI Kozyubry, VA Tumanov, VS Nersesyantsa, LS Yavycha et al. Under this approach, in turn, affected several areas: one group of authors was inclined to reduce the right to legal ideas (right — regulatory pronounced justice measure, the scale of freedom and so on.) Another group under the law understood ideas, norms and attitudes, and the third — right equated with a system of social relations, etc. [3, c. 17].
A characteristic feature of the broad legal understanding is that all the theories, concepts, etc., justifying a broad understanding of the law, seeking to overcome the negative features of narrow comprehension. However, they are able to achieve this in different ways: some of the most someone to a lesser extent. It should be noted that, overcoming the disadvantages of a narrow understanding of the law school, based on a broad comprehension, have in turn very serious shortcomings.
The main disadvantages of wide comprehension due to the fact that within the theories that shape it, very often negate the regulatory side of the law (sometimes completely denying it), and push the state in legal proceedings on the background (or even the third, fourth etc.). And the school wide comprehension, trying to maintain these essential features of law as state-willed nature and normativity, is inherently eclectic, contradictory and difficult to deploy the whole legal theory [5, c. 19−20].
At the same time, a broad comprehension proves very important for society and the individual position in the legal field, and in particular:
— Right in essence and content must meet the ideas of society and the individual of the proper, ie, to be fair;
— Law should not hinder the development of social relations, and promote their development;
— The state and its individual members can not violate those rules, principles, ideals, etc. in legal reality that society perceives as necessary;
— Right — a living social organism that develops and plays an independent role in the system of social relations;
— Has the right not only to external mechanisms for its implementation, but it is largely implemented through involvement of the right of psychology relevant social actors (both individual and collective);
— The right is realized not only in the context of the corresponding state mechanism, but also suggests involvement in legal processes of private institutions, such as ideology, morality, culture, etc.
Feature of the present stage of development of the domestic legal science is a tendency in the justification of integrative or natural law approaches to understanding law. However, it is also problematic comprehension, this trend is not adequately reflected in the theoretical constructs (including interpretation of sources, forms, tools and so on right). World-wide legal theory in general continues to evolve within a narrow comprehension (more specifically in this case to talk about normative comprehension) [8, 206].
Broad comprehension oriented to the right in legal, justice, law enforcement acts of subjective rights. However, the basis of the nature of law, this approach can not be taken. Proponents of this trend come from the fact that the concept of law includes not only the norm, but other legal phenomena, justice, legal, subjective rights, acts of law and others. This understanding of rights inevitably leads to the dissolution of his other legal phenomena. We can not agree with Russian scientist Vladimir Kudryavtsev, who wrote: «…professional lawyers should be characterized by a clear and defined position: no desire, belief or opinion can not be regarded as a legal norm, when they are not expressed in a legal act adopted properly «. Unfortunately, proponents of broad comprehension do not account for the fact that modern legal understanding of the law differs from traditional narrow «normatyvizmu. «
2.2 Value of wide comprehension of other legal phenomena
The study of the phenomena of law and legal understanding actualized social development, as each stage is characterized by its corresponding tasks that require the mobilization of all the resources and tools that has society.
The role and importance of law, its value is in adequate, timely response to the current challenges.
The current stage of development of a society is the slogan of globalization. This phenomenon is characterized not only by the scale that covers almost all aspects of life, but depth processes and changing the world. The question is, first, how right under these conditions can remain the most effective tool to regulate the relationship (which is instrumental value rights), and secondly: how is possible to preserve the identity of law as an important measure of justice and freedom in society (which is its own value of law). Also updated the question of how law can detect and display the will and the needs not only of society, but also each of its sections, the class that shape its social structure and, finally, each individual (reflecting the social value of law).
Under such circumstances, it is reasonable study law. As the genesis of social development, despite the fact that the laws of the law in different societies in different nations often do not match, but the functionality of the law in these societies is similar. It provides civilized coexistence of individuals, groups and classes of the population living within individual societies, although the social factors that determine the formation and functioning of the rule of law, different [15, c. 287].
Comprehension is one aspect of the manifestation of justice. Extracts household, mass and doctrinal justice. As understanding of law and legal understanding, an understanding of that right can be massive, domestic and comprehension — doctrinal. When it comes to understanding the law by a majority of members of society, it is — the dominant understanding of the law. His understanding of the law is the ruling elite (political, economic, ideological, etc.). Called the dominant understanding of the law. It is clear that a minority of the population owns its specific understanding of law. If comprehension is formed at various philosophical and legal doctrines, it is considered a doctrinal comprehension.
Understanding of the law by the ruling elite (the ruling right understanding) is not always inherent qualities such as prevalence and mass, as evidenced by a history of the law and its current state. It is not always the prevailing understanding of the law coincides with the dominant understanding of the law. Last characterized as the most popular and common type of law in a society. Any type of doctrinal comprehension can claim the dominant role of comprehension provided its support of the majority of the population (for example, in various western societies where developed natural law, positivist and other concepts comprehension, the dominant may be one of them).
If the right thing that would not qualify as such falls within the scope of the objective, then comprehension — the scope of the subjective, because its subject is a human. The subjective nature of comprehension gives rise to some authors believe that the right to fully realize the impossible in principle. However, this opinion is objectionable. Awareness of law and its further streamlining using the concept reflects the position of the subject process of intellectual activity, which is comprehension. This fact indicates that there is no single, unified comprehension, and it determines the existence of pluralism comprehension. One or the other option awareness of law and its perception becomes dominant only on condition that it is recognized by most legal subjects [12, c. 68].
Comprehension of the structure of the legal system is seen by scientists ambiguous: some authors include comprehension as a separate component of the legal system (Yuri Tikhomirov, jumper), while others — do not include (V. Babaev, Protasov). There Development, which is an indirect indication of comprehension as a component of the legal system (AS Alekseev, Y. Kharitonov).
Yuri Tikhomirov identifies several groups — components in the structure of the legal system. In a separate group he includes comprehension, legal opinions, justice, legal culture, legal theories, concepts, legal nihilism, lawmaking, legal array of enforcement.
According to S. Alekseev, actually right or positive law, legal practice, legal ideology are the components of the legal system. In turn, legal ideology as part of the legal system in its interpretation of the covers and the right understanding [9, c. 89].
Note that each component of the legal system has its place in its structure, has a different purpose and role in its functioning. However, the central element in this structure is the right understanding of which largely determines the characteristics and peculiarities of each and every components that make up the system.
Therefore, law as part of the legal system occupies an ambiguous place in the structure of the legal system. It seems that it is important as a separate component in the structure of the legal system, because not only development, but also the functioning and dynamics of the legal system is largely determined by the dominant legal understanding, which is formed within different cultural and legal traditions [5, c. 20−21].
Between Comprehension and the legal system is a dialectical relationship. Comprehension — is the criterion that reflects the real role of law in society. Contents comprehension embodies its original existence or its functional dependence on other factors social life. Thus, law can rightly claim to be the typolohizuyuchoho criterion in the study of legal systems. Depending on this criterion can talk about Western and non-Western legal systems. If the right is the main regulator of social relations and acts determinant of social life, thus comes to Western law, although this does not exclude the influence of other social factors on the functioning of the law. However, this effect is not determinative. Where the law, its content and functionality are determined by other factors, we are talking about non-Western legal systems. In particular, according to Confucian philosophy, the operation of positive law depends on the age-old laws of nature. Positive law must serve the laws of nature, that it should be aimed at compliance with existing harmony in society. This is the basis for Chinese comprehension.
Any type of law (natural law, positivist, sociological, etc.) Can claim to be dominant, but establishing this status depends on a number of social factors. In other words, law in general and in particular the dominant comprehension is a phenomenon that is socially where terminuyetsya [7, c. 316].
One of the methodological approaches to study comprehension is civilizational approach, which demonstrates the fact that the ratio is due to the law as social development, its contents and especially those social factors in this society is the determinant. The latter are ethical, religious, spiritual, material and different. The role and importance of each factor reflects the social civilization specifics of this society. their significance is not the same as each of them has a role in the functioning of society. Absolutization one factor and underestimation, especially the exclusion of other factors in determining the content comprehension, is unfounded.
Yes, if it is a traditional society, the leading role in the system of factors should, of course, tradition. When it comes to the religious society, respectively, on fore religious factors. As to Western society and Western law, there are other crucial factors, including culture. In the sense of law influence, of course, and factors associated with the material aspects of society.
Essential in this regard shall differentiation of society into classes, groups, layers, it leads to the formation of different interests, which, in turn, is determined by a variety of needs, such reflective material component of life of individuals, their groups, strata and classes. This is the basis for their ambiguous attitude to the law and its operation [10, c. 112].
So, acknowledging the existence of different concepts comprehension, hardly appropriate to recognize their criteria typology of legal systems, ie, the existence of natural law, positivist and other concepts comprehension does not give grounds to talk about two types of legal systems within which dominates a particular type of law. As understanding of the law, it can act typolohizuyuchoyu category in the typology of legal systems.
That kind of understanding of the law, which is the most common and popular in a particular society can claim to be the dominant cause and the existence of different types of legal systems. Known in comparative law typology of legal systems and viddyferentsiyovani neviddyferentsiyovani is conditional and is based on an appropriate form of legal understanding. Within these types of legal systems sense of law is fundamentally different.
Comprehension is a complicated phenomenon and its transformation into a dominant comprehension depends on a number of factors of social life. Dominant comprehension significantly affect the legal system at various stages of its formation, operation and development, and this effect subsequently displayed on the development of the whole society and its normal functioning.
3. SIGNIFICANCE AND PROBLEMS OF WIDE COMPREHENSION IN LEGAL PRACTICE
Identify comprehension means figuring out what exactly is meant by «right.» Legal actions are focused on the right, by using legal means governed by the laws entail legal consequences, evaluates social phenomena in terms of law and evaluated right. Knowing the right to a lawyer is a professional duty.
Inextricable relationship of law and legal practice, conditionality right most of its characteristics determine the need to review its basic properties.
Right — a complex social phenomenon, and therefore can be characterized as a means of ordering social relations (management and control), a set of specific rules of conduct, as the importance of human values or other entities form social relations, etc. [12, c. 67].
Depending on the scope of public knowledge, which use this term, allocate its philosophical, sociological, psychological interpretation, etc., which have common and distinctive features associated with features of the object of scientific research and the tools used for this purpose.
Each of the interpretations of law reflects only certain his side aspects to the extent that right is the subject of a separate study science, so only the synthesis and integration of all definitions of law capable reflect its characteristics as a holistic social phenomenon. But in this case, the depth of knowledge of law depends on the level of development of the social sciences.
Ambiguity using the word «right» is caused by the fact that it has its origin from the word «truth» and the root «rights» underlies many words — «right», «fair», «rule», «true», «right «,» rule «and so on.
Among the most important interpretations of the term «right» should single out the following meanings:
— As a possibility that a social entity;
— How to set (system) of legal rules by which regulated social relations;
— As a valuation indicator of truth, reality and authenticity of certain social phenomena [8, 203].
Comprehension determine, among other things, as «awareness of legal reality through the prism of legal theories, doctrines, concepts» (Yu Shemshuchenko). One of these concepts — the «human rights», key provisions of which, according to one of understandings — the definition of certain basic rights as human capabilities which are required to meet the needs of its existence and development, natural (parastatal) and inalienable nature of these fundamental rights state’s duty to ensure their effective implementation. Understanding human rights is also a result of a legal understanding.
Fundamental human rights, but to some of its features can be seen as somehow vnormovana her freedom, her specific needs (or interests) and its requirement to provide certain benefits, addressed to the public or the state, a certain type (mode display) morality [3, c. 15−16].
Addressing Human Rights states not only and not so much the absence of evidence of certain violations of human rights as individual violations as eliminate difficult or impossible. Ensure that human rights means to create conditions under which human rights are respected and recognized — both government and party, and effectively implemented, if necessary, protected by law. This particularly involves the transformation of fundamental human rights in the legal rights and responsibilities of law, when certain opportunities that are defined as fundamental rights are guaranteed by the state through their designation as mandatory rules of behavior, and the state and other actors have a duty to follow them, guaranteed. In this case we are talking about the legal framework of human rights.
Comprehension is crucial to the understanding of the concept and human rights for several reasons.
Firstly, a certain type of law is crucial to the understanding of a concept of human rights. Yes, lehizm (lehistske comprehension) believes that human rights are recognized and guaranteed by law established state. With this understanding of the idea of human rights and its implementation of fundamental human rights and to support them end up depending on the will of the state and its laws (specifically, legislators). Yusnaturalizm (theory of natural law) defines human rights as something parastatal, which is designed to provide state. This leads to comprehension and understanding of the concept of «human rights» and, secondly, what is more important — their software. When first comprehension concepts of the state and law dominate the concept of human rights, and the second — on the contrary.
To demonstrate this position should quote from the report of the famous English legal theorist of modernity J. Raza «Individual rights in the global order» at the XXIV World Congress of Philosophy of Law and Social Philosophy at (Beijing, September 15, 2009):
«If support (enforcement) — fair (fair), effective and guaranteed security — is impossible, we must recognize that certain rights — is a human right and avoid to call for his support» [10, c. 114].
The above position was criticized in Congress: in particular, noted that it ignores the concept of human rights, since the last such recognition should not depend on the will of the state and its ability to provide them. For example, the inability of the State to ensure the right to life does not deny such rights as human rights.
This debate showed the collision of different pravorozumin if their value not only for the understanding of human rights, but also to support them.
Thus, we can assume that the basis proposed above is essentially relativistic understanding of human rights is lehistske comprehension. In this case, it is assumed, as is the author quotes his representative, in this kind of comprehension is legal positivism. The latter also opposed yusnaturalizmu — comprehension, which, it should be noted, and owe study of the concept of human rights.
Comprehension can play an important role in judicial practice in the field of human rights.
The decision of the European Court of Human Rights in the «Sokurenko and Strigun v. Ukraine» (2006), the court, among other things, found that «exceeded his powers were clearly set out in the Commercial Procedure Code, the Supreme Court of Ukraine shall not be considered «tribunal established by law» within the meaning of Article 6 § 1 of the Convention concerning the proceedings «(paragraph 28 of the judgment). Finally, the ECHR found in the actions of the state of human rights violations.
Court essentially held that since the Supreme Court of Ukraine acted outside the authority established by law, it can not be considered by the court in this case. In fact, the Court found that the Supreme Court can not in this case deemed to administer justice, and in fact — even considered by the court. It is believed that the court is «the authority of the State for the administration of justice …» (VT Malyarenko). If so, we can assume that the authority of the state, which does not administer justice, can not be considered by the court [1, c. 4].
Another demonstration of the value of comprehension — it is the Supreme Court of Ukraine on the claim «W. Yushchenko in the CEC «(2004). The court, according to critics, appointing the third round of voting in the presidential election, acted beyond the powers and ruled in their opinion, illegal decision. However, those who considered lawful judgment, emphasized that the Court was guided by the rule of law under which violations of the law (in this case suffrage) means a violation of law and human rights, upgrade which is the duty of the court.
In both cases, the courts applied some comprehension, which can generally be called judicial. Latter provides results that will or will not and how the rights of man. Thus comprehension, including court can be considered content-an essential element of human rights.
According to the tasks that were to write a term paper, treating information sources, we can draw the following conclusions.
Right — an institution that develops as society develops it, and nowadays in society brought about great changes. The direction of its development in the recent past determined the contradiction between capitalism and socialism, and accordingly, between law and its actual negation.
Existing types of legal understanding covering various concepts of law, which by common orientation in substantiating the essence of law combined with the appropriate legal schools. In most cases, any interpretation of law, based on the separation of law is perceived as a natural law concept, ie as one of the concepts of natural law school. This is not true, although it is the first of its representatives used the concept of «natural law» (independent of the state), and opposed its positive law (established state). In addition to theories of natural law school, legal type of law covers the legal concept of historical, psychological and sociological law schools, each of which also defines law as a phenomenon nadpozytyvne (supranational), but interprets it with their own positions. The result of combining the achievements listed securities law schools was the formation of a broad (multi-dimensional) type comprehension, which is the basis of integrative jurisprudence in general and integrative (synthetic) law school in particular.
Type of law specifies the requirements of law, and at their pleasure and its true level in society. Comprehension as a source of law is a fundamental category of scientific research foundation of law. This study has practical value. And since practice — the criterion validity of the theory, there is also a feedback data categories: requirements of legality and execution determine an actual type of law. Today, according to a broad comprehension legitimacy is a complex socio-political phenomenon that reflects the legal nature of society, the harmonious relationship of law and state law. In this sense of legitimacy inherent in countries with a democratic political regime.
Considering the law as a multidimensional phenomenon and examining it as a positive (state), and in nadpozytyvnomu (supranational) dimensions, the theory of law and state thus reflects the most progressive type of law. This mapping is important for all law, since the theory of law and the state is ideological and methodological platform for the whole system of jurisprudence.ПоказатьСвернуть