§ 4.1. The place of the theory of state and law in the system of social and human sciences The emergence of the social sciences is closely connected with modern world and its requirements of empirical knowledge of society. This process began in the West in the 18th century during the Enlightenment and continued into the 19th century.

Chapter 3. Law in the system of social regulation People in a modern civilized society in their daily life and activities are guided by many different norms, which are usually divided into technical and social. Among all social norms

§ 3.2. Classification of social norms Social norms are very numerous and diverse, which is associated with the richness and heterogeneity of social relations themselves - the subject of regulation. Legal science divides social norms based on criteria such as

The rights of the norm are the instructions of the state-va, which are mandatory for execution under the threat of state coercion by all F, YL, whom they relate to. In this they fundamental difference from other social norms that exist independently of the state-va and are carried out under the influence of the people themselves and general opinion. In the life of rights and social norms interact, moreover, legal norms appeared from social ones (historically, the first to appear were traditions and customs that were sanctioned by the state - approved and taken under protection, i.e. became legal.)

Rights norms are different in strength, ways of influencing people. The most "soft" are closer to the social ones. The most "soft" - civil norms, b regulation of property relations. Gr-rights responsibility - mater compensation for losses, lost profits, collection of penalties, existed in other Rome, and then this rule received legal consolidation. The most "rigid" norms providing for disciplines, angle, administrative from-be.

That. legal regulations being in common system social norms differ from them in that they are the most specific and rigid. They regulate people's behavior more clearly. Social and human rights norms are interrelated and often the same human behavior is regulated by them simultaneously (see below - general ob-I, rules of the hostel)

Norms - certain standards, samples, standards, models of behavior of participants in social communication. Form large 2 groups - social and technical. social norms- these are the rules governing the relationship between people and their associations ( social life) - norms of law, morality, corporate, customs, etc. Social norms are characterized by a number of features: 1. they are the rules of human behavior. These are patterns according to which people conform their behavior. 2. these are the rules of conduct general(Unlike individual rules). 3. these are not only general, but also mandatory rules for the behavior of people in society.

Technical- the relationship between people and the outside world, nature and technology - the rules for the operation of those. means, sanitary, etc. Unlike social norms that regulate relations directly between people (man - man), technical norms regulate people's behavior in connection with the use of technology (man - technology - man). The specificity of technical norms is expressed in the fact that they act as social norms with technical content. Some of them are sanctioned by the state in the capacity of: legal norms (rules for driving vehicles on the streets and roads) or the norms of law prescribe the obligatory implementation of technical standards and the mouth of legal entities responsible for their violation (responsibility for non-compliance with equipment without -ty in production)

In ob-ve there are different general organizations(gender of the party, trade unions, cooperative societies, youth, creative unions ..) Each of them has its own norms - rules defining the powers, procedures for the formation of governing bodies, the rights and obligations of members of the organization, their interaction. Norms of common orgies m.b. intraorganizational and norms of external action (define the order of interaction with other organizations). The execution of these norms is ensured by the organizations themselves. Capital punishment - exclusion from the ranks of org-ii. Some norms of the general public are fixed by the state as legal ones (the Federal Law on public companies, the procedure for the formation of governing bodies was previously regulated by the charter - now it is a legal norm)

There are hostel norms - non-legal rules for living together in a house, on the bottom street. We must be guided by the rules of good neighborliness and mutual assistance. But there is a law on keeping silence in the evening ..

Types of social norms: 1. Rules of law - rules of conduct that are established and protected by the state. 2. Norms of morality (morality) - rules of conduct that are established in society in accordance with the moral ideas of people about good and evil, justice and injustice, duty, etc. 3. The norms of public organizations (corporate) are the rules of conduct that are established by the public organizations themselves and are protected with the help of measures of public influence provided for by the charters of these organizations. 4. Norms of customs arising as a result of their repeated repetition, which have become a habit of people. 5. Norms of traditions, rituals, rules of etiquette, religious, political, family, etc. hostels. The relationship between law and morality is interesting - unity (the system of normative regulation pursues the same tasks of humanism, justice, order, one object of regulation - public relations, only in a different volume, etc.), the difference is in the method of establishment, formation, the law is established by the state, morality - spontaneously, according to the methods of their provision, according to the form of fixation - morality has neither a law nor a period of validity, according to the ways they influence the consciousness and behavior of people - the right is legal / illegal, morality - from the standpoint of good and evil, shame and etc., various historical destinies, by spheres of action - morality - more widely, i.p. The demands of morality are taken under the protection of law. Today, the moral foundations of society have been undermined - legal and moral nihilism. The task is to make the interaction between P and M flexible and deep.

Society itself provides a certain order in it, using various means of regulating social relations.

Law (jus) arises at a certain stage of human development. Before the emergence of the state, such regulators were rules in the form of customs, which were not specially established by anyone, but developed naturally and were observed in principle voluntarily. In case of non-compliance, they could apply influence, up to expulsion from the clan (tribe).

With the stratification of society, the emergence of the state, this was not enough. As a result, there was an objective need for a new type of behavior regulators, legal (legal), which are called rules of law or legal (legal) rules. Law arises later than other social norms and is associated with the emergence (in a sense, even earlier in the form of customs) of such an institution as the state.

The main difference between the norms of law and the norms (rules) of primitive society lies in their close connection with the state. Legal norms are such rules of behavior of people in society that do not arise by themselves, spontaneously, like customs, but are specially created by state bodies. These bodies are called law-making, since they create, that is, create, establish the rules of law.

In legal science and literature, many approaches to the definition of law have been developed. The very understanding of law among different peoples, in different states and different legal systems is not the same. Therefore, there is no single approach to the definition of the concept of law, and even more so an unambiguous representation of it.

Trying to understand what law is and what is its role in the life of society, even Roman lawyers paid attention to the fact that law is not limited to any one sign or meaning. The law was written by one of them (Paul), used in two senses. First, law means that which is "always just and good," which is what natural law is. In another sense, law is that which is “beneficial to all and many in any state, what is civil law” is sometimes called positive law.

As society and the state developed, people naturally changed their idea of ​​law. Many different legal ideas, theories and judgments have emerged. However, the original foundations laid by the Roman lawyers, although in a “modernized” form, have been preserved. The provisions formulated by ancient Roman and ancient Greek lawyers regarding the inseparable connection between law and justice, right and good have fully retained their significance and relevance. In order to know what law is, wrote the ancient Roman lawyer Ulpian, you need to understand with what, with what phenomena it is connected and where it came from. It must be remembered, first of all, that "it got its name from justitia - truth, justice", that law is "the art of good", "equality and justice".

In its essence, law expresses the agreed will of the participants in regulated relations, the priorities and values ​​of the individual and, as a result, acts as a measure of freedom and responsibility of individuals and their teams, a means of civilized satisfaction of their various interests and needs.

That. There are many approaches to defining the concepts of law, both broad and narrow.

Law has the following specific signs:

1) law consists of norms, i.e. rules of conduct that are mandatory;

2) the execution of the right is ensured and protected by the state;

3) the rules of law are necessarily expressed in official form, enshrined in normative acts or in other legal documents (court decisions, contracts, etc.)

4) legal norms are distinguished by formal certainty;

5) the rules of law do not form a totality, but rather a system, moreover, a system branched and detailed, distinguished by internal unity, consistency and logical interconnection.

Law is a system (set) of mandatory rules (norms) of behavior established (by authorized state bodies) and supported by the power of state coercion.

Law is perceived in 2 meanings:

1. The so-called subjective right, i.e. the right that the subject (person, organization) has, otherwise, the opportunity to do something, which is given by the state, is guaranteed and protected by it. For example, persons eligible for tax benefits.

2. And the so-called objective law /positive/ - these are all the rules of conduct that are available in regulatory legal acts, or in general / Russian law/, or some part of it / civil law/. It is a criterion of legitimacy, illegality of subjects. Thus, subjective legal rights and obligations arise on the basis of the norms of objective law. If a citizen is entitled to a tax exemption, then by virtue of the fact that it is provided for in a regulatory legal act (TC RF). Hence, subjective law arises on the basis of objective law. Objective law is law in general.

All norms used by people are divided into 2 groups:

a) non-social norms. Technical, agricultural, biological, etc.;

b) social norms. These are rules of conduct that govern relationships between people.

Legal norms alone are not enough to regulate all relations in society. And not all relationships can be regulated with their help. Therefore, in addition to legal norms, other rules of human behavior are also used: customs (in the form of traditions, rituals, rituals, etc.), religious norms, norms of public associations (corporate norms), moral norms. All these rules of behavior, including the rules of law (types of social norms) are called social norms(these are all the rules of conduct that govern relationships between people). Public order is provided (in contrast to the rule of law, which is the result of the action of some legal norms) by the combined action of various social norms that form the normative system of society.

So, law arose at a certain stage of human development, appeared later than other social norms and is associated with the emergence of such an institution as the state.

legal regulations, being one of the types social norms, occupy a central place. For only they are established and protected by the state. The remaining norms are provided by measures of public influence. Only the rules of law are enshrined in official legal acts (laws, decrees, etc.). They clearly indicate what the participants in legal relations are allowed to do (i.e., their rights); what they should do (i.e. their duties); what is forbidden (prohibitions) and what measures are applied to violators of the regulations.

Legal norms regulate not all social relations, but the most significant ones, such as state power and administration, protection of life and property, labor relations, etc. For example, a citizen's right to inheritance will be protected by the state (represented by a notary, a court). But giving flowers is the so-called “moral right”, and it is not a right in the legal sense, since the state has not established and does not protect it.

The role of law lies in the fact that with its help society maintains law and order(order based on law).

The rules of law are:

a) regulatory function, those. streamline (regulate) social relations. This is achieved by the fact that the state establishes common rights and obligations for all participants in such relations;

b) protective / protective / function - the state protects against encroachment on life, property, establishing penalties for murder, theft, etc.

Law as a system of relations and restrictions acting in the interests of the whole society is always preferable, better than chaos, anarchy, arbitrariness and lawlessness.

The main purpose of law- establish formal equality different people, to ensure the opportunity to exercise their right, to recognize people as equally valuable for the state and in the state. With the help of law, stability, coherence, and organization are introduced into social relations. Law affirms the freedom of people. It is one of the most civilized means social control on the behavior of people in society.

In society, there are various norms that are called social. What place among them does law occupy? The concept of law, one of the concepts of TGP (theory of state and law), is studied in social science lessons in grade 10.

Features of law in the system of social norms

Law is one of the social norms. The role of law is very important in our life, while it is quite definitely different from others.

Other norms include morality, religious norms, customs, etc.

The law is closest to religious norms. Both those and others are in most cases reflected in some written document or doctrinal book. In some Islamic countries, religious norms are obligatory for everyone, and the law only translates them into legal language. But in most modern countries, unlike religious ones, the rules of law are binding on everyone.

In the Russian Federation, the church is separated from the state and does not influence the law; Religious beliefs are a private matter of a citizen.

Morality- these are generally accepted in society concepts of “what is good and what is bad”: how one can act and how not, what is moral and what is immoral. Morality is not written anywhere, it can change over time. As a rule, these ideas come from people, and are not offered to them by legislators. Many norms of law are connected with moral ones. For example, theft is immoral and contrary to the law. There may also be inconsistencies. But more often morality and law agree, and morality complements law.

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Customs stand even further from law. These are unwritten rules of conduct. In some cases, a custom seems useful to the state, then it can become a rule of law; on the contrary, some custom may be harmful to the state, and then the rules of law restrict it. But in most cases, the place of law is not correlated with customs.

Features of law

Let's give a definition first. Law is a system of obligatory, formally defined, state-guaranteed rules of conduct.

• socially (it operates in society);
• regulatory (exists in the form of norms regulating what actions of citizens are possible, which are prohibited and which are prescribed);
• systemically (that is, it is a system whose elements are interconnected and mutually influence each other; at the same time, this system is closed: the subjects of relations cannot influence the rules of law, depending on their intentions and preferences);
• formally (expressed in some form, for example, in the form of a law);
• obligatory ;
• provided by the state (the state ensures the implementation of the rule of law up to coercion);
• has a state-volitional character (the state is interested in the execution of its will and is ready to demand the implementation of the rule of law from all citizens, including with the help of special bodies (police, etc.)

How does law affect our lives? The law performs several functions:

• protects and regulates the most important public relations;
• educates, not allowing to violate the norms;
• reinforces historical norms.

Norms: social and legal

social norm - this is a norm that regulates the life of society, relations between people. In the system of social norms there are different ones (moral, religious, etc.), including legal ones.

legal norm - this is a small part of the law. This is precisely one element, while the law as a whole is quite extensive and is a system.

The legal norm is social, but it has clear distinctive features which allow it to be distinguished from other norms.

It is the only one that does not come from society, but from the state and is an official expression of its will, while it exists in a specific form, enshrined in any document.

It is an expression of the will of the state and is protected by its law enforcement agencies.

She is called upon:

• indicate exactly how, where and under what circumstances the subject must, or can, or cannot perform any actions;
• to consolidate the rights and obligations of participants in any relationship, regulating the permissible measure of human freedom.

The phrase "Your freedom to wave your arms ends where the freedom of someone else's nose begins" was said by a judge to a certain parliamentarian who touched his neighbor's nose with his hand; in response to the words: "I have the right to wave my arms!" the judge said these words.

The structure of the rule of law

The rule of law has a specific structure, shown in the table:

Principles of classification of legal norms

Legal norms are classified according to many principles. Examples:

• for social purpose norms are divided into constituent (fundamental principles), declarative (statements), definitive (definitions of something), conflict (reasoning), operational (instrumental), security (guaranteeing something), regulatory (rules proper), protective;
• by the nature of the rules : binding, prohibiting, authorizing (allowing);
• by scope: general (for all), limited action (for example, acting for some time, or in a specific territory, or under specific circumstances), local action (acting in a specific team).

There are other types of classifications as well.

Lecture No. 2. The rule of law in the system of social norms

Social norm: concept, features, types.

Norm of law: concept, signs, interaction with social norms.

Norm of law and norm of morality: a comparative characteristic.

Types of rules of law.

The structure of legal norms. logical norm.

Question number 1.

Social norms - the general rules of behavior of people in society, due to the socio-economic system and are the result of conscious volitional activity of people.

Signs of a social norm:

Rules of behavior of people - indicate how people should act in relations with each other.

They are created as a result of the conscious-volitional activity of people: they are created and provided by a team of people.

Rules of a general nature - act as a scale of human behavior.

Due to the socio-economic structure of society.

Types of social norms

According to the method of establishment and provision:

a) the rule of law

b) norms of morality (morality),

c) corporate norms (of public organizations),

d) customs.

a) political (the direction of the policy of the state, public organizations and citizens),

b) organizational - (fix the structure, procedure for the formation and activities of the state and public organizations),

c) norms of culture (rules of cultural behavior) - spiritual development,

d) aesthetic norms - establish the rules of human behavior in connection with ideas about the beauty of human actions (etiquette norms),

e) technical norms - rules for handling objects of nature, tools, etc.

f) technical and legal - technical norms enshrined in the law.

Question number 2.

A rule of law is a generally binding, formally defined rule of conduct of a general nature, created or sanctioned by the state, regulating social relations, protected by the coercive power of the state.

Signs of the rule of law:

is mandatory;

formally defined;

is a rule of conduct of a general nature;

created or authorized by the state;

regulates social relations;

protected by the state.

Interaction with social norms.

Law and custom:

a) customs - habitual or customary norms.

b) customs include rituals, ceremonies, traditions.

Law is indifferent to most traditions. Law in a number of cases reinforces customs (swearing in the head of state, judges of the Constitutional Court - Article 82 of the CRF, Article 10 of the Federal Law "On the Constitutional Court of the Russian Federation").

c) the influence of law on customs: progressive customs that stimulate rights, and those that are contrary to the norms, qualify as crimes,

d) under certain conditions, customs are recognized as sources of rights (customs of business).

Law and religious norms:

a) religious norms are a kind of social norms.

b) similarity with legal norms:

Formalized, meaningfully defined,

Institutionalized and documented in the Bible.

They act as a source of law (the Charter of Spiritual Consistories, the Book of Rules of the Holy Synod - Russia until 1917),

c) difference with legal norms:

The scope of religious norms is already (applicable to persons professing a particular religion),

d) the mechanisms of action of religion and law are different.

For religion, the absolute immutability of the prescribed behavior is prescribed.

The influence of law on religion is specific. The Constitution of the Russian Federation (Article 14), the federal law"On Freedom of Conscience" guarantees the freedom of conscience of religions. At the same time, the law should not be indifferent to occult religions and totalitarian sects.

Law and corporate regulations:

Corporate norms are the norms that regulate relations between members, participants of public associations. They are fixed in the charters (other documents) of public associations adopted at general meetings, congresses.

The norms express the will of the participants in public associations and are binding on them.

Similarity of corporate and legal norms:

Documented, detailed (Charter - rights and obligations).

Unlike corporate norms, legal norms contain a sanction and draw in detail who determines this and how (Charter of the Liberal Democratic Party: a party member can be expelled for actions that discredit the party or harm it).

The law determines the scope of corporate norms, their guarantee (the Constitution of the Russian Federation): non-compliance with statutory norms, the implementation of activities that contradict the charter - the basis for their liquidation.

Law and technical standards:

Technical norms - the rules fixing the attitude of people to nature, technology, tools and means of production.

Violation of these norms can lead to human casualties, catastrophes, and damage.

Technical standards include: biological, sanitary and hygienic, scientific and technical, environmental, etc.

Technical standards enshrined in legislation - technical and legal standards (technical conditions, GOSTs, rules, pollution indices environment). Legal liability is established for their violation: criminal, administrative, disciplinary.

Question number 3.

The interaction of law and morality

1. Morality should not require violation of the law, and law should not reinforce immoral acts.

2. Morality (morality) - a special type of normative regulation, representing a set of norms and principles that extend their influence to everyone and embody moral values.

3. moral value rights - law must guarantee the effectiveness of the rights and freedoms of man and citizen, ensure social justice.

Question number 4.

Types of rules of law:

By role in the regulation of social relations:

a) regulatory (legal) - establish legal rights and legal responsibility;

b) law enforcement - measures of state coercive influence for the commission of offenses;

c) specialized - contain proposals that ensure the operation of regulatory and law enforcement standards.

Regulatory norms according to the nature of the rules of conduct are divided into:

a) binding;

b) forbidding;

c) authorizing - provide participants in public relations with the right to take positive actions (for example, withdraw consent to adoption).

Specialized norms:

a) general fixing (constitutional) - fix, fix the state of public relations (Russia is a federal state),

b) definitive - fix legal concepts(for example, the concept entity» in the CCRF);

c) declarative (goal-setting) - proclaim tasks, principles, goals (Article 1 of the Civil Code of the Russian Federation, UKRF);

d) conflict - establish the procedure for choosing and applying a legal norm from several norms.

Regulatory norms by nature of obligation:

b) dispositive - enable participants in legal relations to choose a different model of behavior than the one established by law.

According to the scope of the regulatory action of the norms of conduct:

a) general - regulate a certain kind of social relations;

b) special - the type of these relations;

c) exceptional - make exceptions from general and special norms.

By appointment in the mechanism of legal regulation:

a) norms of substantive law - fix legal rights and legal obligations;

b) norms of procedural law - fix the procedure for the implementation of legal rights and legal obligations.

Question number 5.

The structure of the legal norm - internal structure norms, its components, elements.

Elements of a legal norm:

Hypothesis - part of the norm, which indicates the conditions (life circumstances), the presence of which makes it possible to be guided by this norm, to implement the rule of conduct;

Disposition - the second part of the rule of law, indicating what should be the behavior of people, in the presence of the circumstances provided for by the hypothesis;

A sanction is a special, law enforcement part of a legal norm that provides for measures of influence that can be applied to persons who do not comply with its prescription.

If there is no sanction, this does not mean that the norm is not protected, since it may be protected by the sanctions of other articles.

Classification of the structural elements of the norm.

In composition:

Hypothesis:

a) simple - one circumstance, is a condition for the operation of the rule of law;

b) complex - several circumstances are the conditions for the operation of the rule of law;

c) alternative - several circumstances, the occurrence of one of which is the conditions for the operation of the rule of law.

Disposition:

a) simple;

b) complex;

c) alternative.

a) simple;

b) complicated

c) alternative;

d) penal - provides for measures of legal liability and contains additional obligations for the offender;

e) remedial - measures applied to the offender to ensure the actual fulfillment of his unfulfilled obligation to protect (restore) the subjective right violated by him (for example, return the parties to their original position in the transaction; compensation for damage in kind or in cash).

II. According to the method of presentation of the structural parts of the norm in the articles of the normative legal act;

1. The direct method is a complete statement of the elements of the norm in the article of the law that fixes this norm.

2. Reference - the elements of a legal norm are not fully disclosed in one article, but a link is given to other articles of the same act.

Blanket - the missing information is filled in the articles of other legal acts.

III. Depending on the degree of generalization of the actual circumstances, the hypothesis and disposition have:

a) casual presentation - by simply listing the actual circumstances regulated by the norm or prescribed actions (for example, details of the statement of claim);

b) abstract - a generalization of the actual circumstances or actions prescribed by the norm using one-time general signs (for example, the term "legal entity").

IV. Sanctions, depending on the degree of certainty, are divided into:

absolutely definite - set the upper limit of the measure of influence (up to 5 years);

relatively - certain - set the lower and upper limit of the measure of influence (from 5 to 10 years).

Logical norm and prescription norm.

The prescription norm is an integral normative provision devoted to a specific issue of regulation.

Logical norm - is determined by establishing logical links between the norms-prescriptions contained in several articles of a legal act.

Correlation between the logical norm and the prescription norm.

Correlation between the rule of law and the article of the law.

A normative legal act is an external form of expression of a legal norm.

The main building element of a normative legal act is an article.

1st option. The rule of law and the article of the law coincide, that is, the article contains either all three elements of the rule, or one or two, and the rest must be found in a logical way.

2nd option. Allocation of several norms into one article of the law: for example: art. 9 of the Law "On the languages ​​of the peoples of the RSFSR": 5 points, each of which is an independent norm.

3rd option. Location of one norm in several articles.

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