Institute of Comparative Jurisprudence Problems of Formation of Technical Legislation. The importance of comparative jurisprudence. In legal science, much attention is paid to comparative jurisprudence. Comparative legal method - private scientific method of legal
jurisprudence comparative micro-object
The subject of science is determined by the phenomena and processes occurring in the genesis of the surrounding reality. But the concept of an object is not given to us directly from nature, "only correct thinking is knowledge and knowledge of the object, and therefore our knowledge must be scientific." Item legal science in general, and the subject of comparative jurisprudence in particular, are not an exception to this rule of scientific substantiation of the study of state-legal phenomena. The difference is l see in the fact that the subject of jurisprudence determines the system of laws occurring in the entire sphere of state-legal reality, and the subject of comparative jurisprudence is the laws of a certain fragment of this system. The subject of jurisprudence is the substance of legal laws that concentrates in itself the essential features of the generic concept of the subject of science in general, extending them to the spheres of scientific knowledge of state and legal reality. Therefore, an important component in defining the subject of any legal science is taking into account the philosophical understanding of the subject of science. “The science of law, - concludes G.V.F. Hegel - there is part of philosophy. Therefore, it (the science of law. - A.E.) must develop from the concept the idea that is the mind of the object. " ...
The problem of defining the subject of comparative jurisprudence is based on what is meant by the comparison of legal elements - a method of cognition or something more that brings legal science to an independent comparative legal level.
One position is that comparison is just general scientific method, used by all legal sciences. “The scientific significance of comparative jurisprudence,” notes V.M. Raw, - consists in the fact that it, having no subject of its own, specializes in the comparative study of legal systems using such a specific method as comparison. Thanks to this specialization, it supplies very valuable information to the general theory of law and the branch legal sciences. " ... The founder of the scientific use of the comparative method is called Aristotle, who widely and systematically used comparison. The Thinker defined: "What we designate as different in kind is such in comparison with something and in relation to something." Aristotle conducted a comparative analysis of the constitutions of 158 barbarian and Greek cities, setting out in a treatise on politics the patterns of the political organization of society that he revealed. Later, the dialectical method determines the need for the active use of the comparative method, which leads to the emergence of independent scientific directions - comparative linguistics, comparative anatomy, comparative geography, etc. There is a transition from the casual and episodic to the conscious and systemic use of the comparative method in the knowledge of the surrounding reality. The comparison method determines the development of scientific thought. Researchers explain this dependence by the fact that "all the work of the human mind, ultimately, is reduced to comparisons", "all mental operations are reduced to observing the similarities and differences, correspondences and inconsistencies that various objects have among themselves and in relation to us", and the task of the researcher is “to properly understand true meaning identities ". G. Gutteridge defines comparative law as a "method of study and research" of legal phenomena: "All doubts about comparative law will disappear if we recognize that this expression means a method of study and research, and that comparative law is not a branch or a special section of law." R. David, arguing with G. Gutteridge, pointed to the absence of a positive branch of comparative law as an "obvious truth" and spoke about the need for a comparative analysis of large objects of legal reality. The thesis about the macro-level approach to the application of the comparative legal method is supported by a number of researchers. S.S. Alekseev believes that the comparative method allows “not only to reveal the opposition, differences and features of the continuity of legal systems of different historical types and legal families, but also (which may be the most important thing) to formulate general theoretical provisions, to identify patterns of functioning and development, which take into account the peculiarities of legal systems various social structures, eras, countries. " OH. Makhnenko considers the comparative legal method as the most effective way to identify patterns that are common to all countries. V.A. At the same time, Tumanov determines that "comparison is one of the best opportunities for a true assessment" and thereby elevates the comparative legal method to the rank of a certain methodological measure of functioning legal components... This position determined the real possibility of developing the theory of the comparative legal method, that is, determining its potential for correlation with other methods and in those areas where the use of the comparative method is most effective. The comparative method begins to be identified with the theory of the comparative method. At the same time, the comparison analysis takes place in different planes - as a method of integrative adaptation of various legal and social systems in relation to each other as a means of solving their own problems of comparative jurisprudence and even as a "universal way of interpreting legal acts." The theory of the comparative legal method considers the method itself as an independent object of research. All these approaches paved the way for the gradual recognition of comparative jurisprudence as an independent area of legal research.
A kind of compromise in views on the scientific nature of legal comparative studies was the position of scientists who recognized comparative law at the same time as the method used by all legal sciences, and special area of legal research... In particular, the same R. David notes: “For some, comparative law is only a method, more precisely, a comparative method; for others, on the contrary, comparative law is an autonomous branch of the science of knowledge of law. Next to lawyers who simply use comparative law, there is a place for comparativists, whose task is limited to preparing the ground so that others can successfully use comparison in their work. " V.A. Mists also supports poses iti y those scientists who propose to abandon the definition of the status of comparative jurisprudence on the principle of "either-or" (method or science). Recognizing the importance of comparison as a scientific method used by all legal and state sciences, V.A. Tumanov notes that in legal reality there are a significant number of specific problems that cannot be solved without isolating the comparative legal approach, which "led to the tendency for comparative jurisprudence to acquire features of a relatively autonomous scientific discipline." A similar pose iti you occupy
A.A. Tille and G.V. Shvekov, who define that the comparative method exists as one of the methods of cognition of the surrounding reality and practical activity, and thus "is applied both in jurisprudence and in legal practice." But at the same time, say the researchers, "there is comparative jurisprudence as a science, in its content, a methodological science, a component of legal methodology." The logic of the supporters of this concept is that the problems of legal reality that are at the "high level of abstraction" are the hierarchy of sources of law, the classification of legal systems, etc. - form the subject of an "independent branch of scientific knowledge" - comparative jurisprudence. All other, according to researchers, "particular issues" of the legal sphere can be objects of the comparative method.
But in the process of carrying out comparative studies, the method and the result of its application can often pass into each other. There are many directions, about which it is impossible to say - this is a method or a science. So, G.V. Leibniz saw the essence of mathematics not in the subject matter, but in its method. The methods of sociology used in the legal sphere determined the existence of an independent scientific direction- sociology of law. V.A. Kozlov points out that "the method and theory are interconnected," and this, in turn, does not exclude the formation of the method "in a special scientific direction."
A positive result of the implementation of the dualistic concept in the definition of legal comparative studies is that the very idea of the autonomous nature of the comparative direction of legal research leads to the gradual recognition of comparative jurisprudence as an independent legal science with its own subject and methodology for the study of legal objects. “When I think about comparative law,” notes R. Pound, “I always think about something broader and more capacious than is indicated by the corresponding English phrase“ comparative law ”. I think not only and even not so much about comparative law as such, but about the science of "comparative law". Today, most researchers working in the field of the theory of comparative jurisprudence tend to attribute this direction to the number general theoretical disciplines of a methodological nature .
The researcher who conceptually defined the methodological character of comparative legal science was the Soviet lawyer A.A. Till - le. He believed that comparative jurisprudence "is a methodological science that studies the comparative method and the peculiarities of its application in the theory and practice of state and law", "an integral part of legal methodology." Pos iti I was a conceptual continuation of the views of researchers of the Eastern European region, who defended the status of independence of comparative legal science. The Hungarian scholar I. Szabo took the position of recognizing comparative jurisprudence "much more significant than just a method." The comparativist considered the comparative legal direction of research as a "whole movement". The Czech researcher A. Kanda was more categorical in his definition of comparative jurisprudence. He considered the comparative trend in law as an independent scientific discipline with its own special method of cognition. The main question about the nature of comparative jurisprudence summarizes A.A. Tille, ultimately, is in the plane of answering an important methodological question about the status of comparative jurisprudence - "is comparative jurisprudence a science or is it a specific method inherent in all legal sciences."
Yu.A. Tikhomirov, calls the comparative direction of legal research "a theory or scientific discipline in a number of branches of legal science." OH. Saidov defines comparative jurisprudence as "the theory of the application of the comparative method, both in the scientific-cognitive and in the practical-applied aspect." The independent methodological orientation of comparative jurisprudence is traditionally indicated by the modern works of comparativists of the Eastern European region. But questions of the methodological status of comparative legal science directly depend on the basic fundamental position of a general scientific nature, which presupposes the definition of the subject of comparative jurisprudence.
The problem of defining the subject of comparative legal science received its official recognition at the I International Congress of Comparative Law, at which methodological topics took an independent place on the agenda of the forum. National legal systems were initially considered as a criterion for determining the subject of comparative jurisprudence. The accumulated empirical material regarding national legal systems, large-scale comparative legal studies of a sectoral nature, which focused on the problems of intra-system legal problems, made it possible to consider national legal systems or systems of legislation in general as an important object, and subsequently the subject of comparative legal research. But the privileged position of legal systems as a subject of comparative science does not suit researchers working in the field of comparing the normative material itself - branches of law, legal institutions and legal norms. Comparativists of this normative level find themselves dropped out of the sphere of general comparative science and are forced to create branch areas of a comparative legal nature - comparative constitutional law, comparative criminal law, comparative labor law, comparative judicial law etc. Each of the branches develops its own "mini-theory" regarding the subject of research in the absence of a general comparative approach. The significance of these theories can be questioned by the very same researchers of branch legal science, who admit that their work is carried out only at a certain level of comparison - the branch of law, the rule of law, legal practice. The nature of the material under study, in principle, is the same - foreign legal formations. The privileged position of legal systems as a subject of comparative jurisprudence does not fit into this scheme, since they represent only one of the levels of comparison. As a result, there is an objective need to define the subject of comparative legal science in such a way that it includes all, without exception, elements of a foreign legal array.
The study of foreign legal entities by sectoral legal sciences involves the use of the comparison method when comparing elements of different legal orders. But comparative law is a science more high level, which studies not everything, but only the most important, stable patterns of the emergence, functioning and development of foreign legal formations. Many researchers spoke about this orientation of comparative jurisprudence. So, G.F. Shershenevich argued that comparative jurisprudence clarifies “ general laws development of law ", and a simple" comparative study of modern legislation should not be confused with comparative jurisprudence ", which sets more conceptual global goals, achieving them" by comparing the rights of different peoples at different levels of culture. " According to R. Pound, the task of comparative jurisprudence consists not so much in comparing the norms existing in different legal systems, but in determining the general principles of law. The researcher talks about a kind of "formulation" of these fundamental provisions. He calls comparison one of the steps on the path of conceptual holistic comparative legal knowledge. German comparativists K. Zweigert and H. Kötz talk about the general principles of comparative studies, on which all comparative legal studies should be based. If the content of comparative jurisprudence, the authors note, were limited only to the study of different paragraphs normative act, “It would be difficult to distinguish comparative law from the usual practice of lawyers. the term "comparative law" must mean more than it might seem at first glance. " R. David, and later Professor K. Joffrey-Spinozi, talk about the variable and constant elements of law, considering the latter as the main link in comparative jurisprudence. In national systems of law, researchers point out, "there are many such elements that cannot be arbitrarily changed, since they are closely related to our civilization and our way of thinking." These permanent elements of law cannot be arbitrarily changed like language or manner of thinking.
M.N. Marchenko proposes to consider as a subject of comparative jurisprudence "general principles and patterns of the emergence, formation and development of legal systems." He uses analogy in defining the subject of general theoretical science in the form of the most general and fundamental laws in the system of life legal object... As the basis of the subject of the theory of state and law, the researcher considers "the general laws of the emergence, development and functioning of state and law." The general history of law and the state is traditionally aimed at understanding "the most typical and, therefore, the most common circumstances and factors for many peoples of the emergence and evolution of legal and political ideas and institutions."
The general position of researchers boiled down to the fact that the subject of comparative research should not be random, particular, structural components of legal reality that are not essential for the level of macro-research, but legal phenomena that are permanent, typical, stable. Elements that are not related to constant, typical, stable legal matter can be the subject of industry-specific or special-legal studies. The subject of comparative cognition is present wherever a system of comparative research of legal material has developed. As noted by A.A. Tille and G.V. Shvekov, is there a comparative study of branches of law in general, or their features and properties are studied "to determine, isolate, delimit from related phenomena", the use of the comparative method involves the use of its general scientific potential. In this case, we are not talking about the level of abstractness of the object that forms the subject of comparative legal science. All intrabranch elements of a legal nature fall into the field of comparative knowledge, which can also be studied by various comparative legal methods of synchronous and disynchronous study. Like any general scientific method, comparison can also be used when comparing the development of legal institutions and "and in terms of simultaneous (synchronic)" of their cognition.
The subject of research, which is qualitatively different from the subject of the general theory of law, determines the independent scientific nature of comparative jurisprudence, which was considered as an element of general legal theoretical research within the framework of the science of the theory of state and law (general theory of law). “Everything that should be investigated by comparative jurisprudence,” notes V.M. Raw, - constitutes the core, the specifics of scientific study and general theory of law. " But the study of the laws governing the functioning of the entire state-legal reality is not characteristic of comparative legal science. Its subject is typical, general laws of the emergence, functioning and development of legal elements belonging to different legal systems. These components of legal reality are considered by the subject of comparative knowledge as foreign legal elements relative to each other. The nature of the subject of comparative jurisprudence depends on the general comparative nature of the legal components of the macro and micro levels. The general theory of law can in a certain way adjust the conduct of comparative legal research, based on the needs of obtaining empirical information, but not determine the nature of the research itself, the specificity of which is guaranteed by the comparative nature of the legal object inherent in the very nature of a constantly functioning and developing legal sphere. Legal knowledge obtained as a result of such a study of legal reality, are intersystemic in nature and acquire the characteristics of the transnational level of research. The universality of the patterns studied by comparative legal science is expressed in the non-national nature of any legal phenomenon and its abstraction to the level of the general object of comparative jurisprudence. The object of such knowledge has an absolute comparative nature and, therefore, determines the scientific comparative nature of comparative jurisprudence. This does not preclude the use of a comparative method like general admission knowledge of legal reality by other branch legal sciences, oriented, among other things, to the application of data from the general theory of law. Comparison of legal institutions, notes J. Stalev, will be expedient to carry out within the framework of sectoral legal sciences, than comparative jurisprudence will complete its mission at this level of sectoral research and reveal the comparative nature of the designated subject in the process of establishing coincidences and differences between the compared objects of a single legal reality.
Comparative jurisprudence has as long a history as fiction, as a historical and philosophical science. The works of the great writers of the past became the foundation on which in the XIX - XX centuries. schools of comparative jurisprudence began to form. If we turn to the history of post-revolutionary Russia, we should note the role that the Institute played in the formation of comparative jurisprudence in Russia. First of all, it is necessary to pay tribute to M.N. Gernet, one of its founders, and recall the first works of the Institute, in which there was a powerful layer of comparative legal research.
Comparative jurisprudence is not only scientific knowledge, but also political matter and an instrument of ideological struggle. At present, in fact, the task is to clear the legal space and introduce other concepts. There is an expansion, an intervention of an alien right. Therefore, it is so important to study and defend one's own national legal roots and to understand the question of what is meant by comparative jurisprudence.
Comparative jurisprudence is a body of scientific knowledge about the legal space of the world in its historical development and the diversity of legal systems and forms.
There are six levels of comparative jurisprudence. The first is a common legal space. To paraphrase the words of the Apostle Paul, we can say that there is no Jewish and Hellenic, American and Russian, Islamic and Hindu, Chinese rights, but there is a single legal space, which is united by common historical roots, a single common goal, common values and common instruments of influencing public relationship.
"The fact is that we do not see or do not recognize the common legal space. We are too carried away by the diversity of national legal systems and do not notice that the law develops according to general laws, that it has common values."
Law appears at a certain stage of social development common to all civilizations. By virtue of this, the law takes on uniform forms and outlines.
The legal space is united by one common goal. Whatever the civilization, whatever the legal order, there is one and only true goal - the common good. Everything else: the principles of democracy, human rights, legality - is secondary. These are nothing more than tools that should provide the specified purpose.
There are common basic forms of development of law: law, judgment, legal custom, and only five means of legal influence on a person - prohibition, permission, imputation, punishment, encouragement.
The next level of comparative jurisprudence is the great or major legal systems. There are many classifications. In 1900, at the first Congress of Comparative Law, five main families were distinguished: French, German, Slavic, Islamic and Anglo-American law. Then many other classifications appeared.
In the classification proposed by V.I. Lafitsky, the main fault line that splits the common single space, these are spiritual values. Accordingly, eight basic legal families can be distinguished, which are united by a common spiritual or moral and ethical values. These are legal families of Christian, Islamic, Hindu, Buddhist, Jewish, Confucian, Shinto and pagan traditions of law. There is one more family - the spiritless tradition of law, to which the legal systems of mainly totalitarian states belong.
Religious values are so deeply rooted in public consciousness that they somehow affect the law, breaking through the modern legislation, under which they are buried.
Many states, especially the Western world, are declared secular, but this does not exclude a very deep impact of Christian values.
Christian states developed along one general line. Its content is determined by the words of Jesus Christ, who said: "To Caesar is Caesar's, and God's to God." These words made the state and law free. They were no longer bound by religious bonds. But there have been guiding stars that state and law have followed throughout history. These are the Christian commandments of equality, freedom, mercy, love.
The history of the development of Christian states, or the Christian legal order, testifies to how deep these roots are. Unfortunately, Russian history is being emasculated, and what happened in the past is forgotten. For example, such a famous monument as Russkaya Pravda. It is usually presented as a collection of articles indicating crimes and sanctions. At the same time, they forget to point out that these are only extracts, that the Russkaya Pravda in its different editions - lengthy or short - appeared as part of other acts: pilot books (from the word "pilot", which meant instruction) or absolutely amazing books called "Merilo righteous. " "Measure of the righteous" were acts containing instructions, rules of law, descriptions of the judicial system and legal order that existed in Russia. The first "Measure of the Righteous" appeared in the second half of the 13th century, when midnight Russia was destroyed by the Tatar-Mongol invasion. The main task of this book is the salvation of the Russian land through the revival of Christian commandments and the establishment of the true principles of justice. It was an amazing document that awakened the sense of justice and through it kept the life of the nation. And in our country there is not a single translation of it into modern Russian.
IN AND. Lafitsky recalled the ascetic labor of our holy fathers, beginning with Sergius of Radonezh. This is the history of Russian law. And the exact same story exists in other Western countries. The system of Romano-Germanic law was created not only on the basis of the reception of Roman law, but also on the basis of the canon law of the Catholic Church. The same deep roots exist in all other systems. Only there they are more obvious. Thus, in the constitutions of Muslim states, Islam is declared the basis of the rule of law. And in Saudi Arabia, the constitution is directly the Koran. A similar close relationship exists between Buddhism and secular law in Nepal and Bhutan.
The next fault line of a single legal space- this is a break along the lines or features of historical and national development. Here the great family of Christian law splits into several groups of law: general, Romano-Germanic, Slavic, Scandinavian and Latin American law. These are the groups that are formed within the framework of Christian law. The speaker emphasized that there is a lot in common between them, and not only because someone borrowed something from someone, but also because, and this is the main thing, that they have a single foundation, they developed on one common foundation, they have the same roots. This explains why Slavic law has so much in common with other communities, primarily with Romano-Germanic law.
Not all great legal families are divided into communities and groups. Some remain within the framework of a particular ethnos or nation, as, for example, Confucianism does not go beyond the framework of China, the Hindu tradition of law - beyond the framework of India, the Jewish tradition - beyond the framework of the Jewish community, etc.
The peculiarities of legal communities and groups are not yet sufficiently studied. It is believed that there is a system of Romano-Germanic law, which is based on the reception of Roman law, the impact of canon law, features legal development, but there are other, very thick layers that have not yet been studied. This is a national spirit, a language in which, as in a mirror, many legal phenomena are reflected. These issues should be the focus of comparative attention.
So, if we turn to another legal community of Slavic law, we can give several examples. In Slavic languages, including Russian, law is associated not only with words such as "correct", "justice", "righteousness", but also with concepts such as "government", "ruler". As a result, bizarre images appear, in which law appears mainly as a product of the will of the ruler, and justice as something that comes from him. Such mental images define the life of law. Another example. In all Slavic languages, theological or sacred motives are very clearly traced. Thus, the word "wealth" is perceived as something that is given from God and that a person cannot appropriate for himself. The foregoing, in particular, explains why in the history of the Slavic peoples there were so often expropriations and so weakly protected private property.
The next level of comparative jurisprudence is the emerging legal systems and groups. The boundaries between legal groups, communities, families are very fluid. They obey the laws of dialectics, including the law of the transition of quantitative changes into qualitative ones. We are now witnessing how Lebanon is gradually sliding into the Islamic tradition of law as a result of the rapid decline in the Christian population.
New legal systems and communities are also emerging as a result of powerful integration processes. The most striking example in this case is the European Union.
The next level of comparative jurisprudence is national legal systems. They need to be studied in more detail. Therefore, the concept of our two-volume edition of Comparative Jurisprudence provides for the inclusion of full-fledged essays on the national legal systems of a large number of states.
The last level of comparative jurisprudence is international legal regulation. International law performs the function of restoring the destroyed single legal space, but this process is very chaotic, without clear logic. There is a lot of randomness in this process. Nevertheless, international law fulfills its function, its task as a whole.
Lawyers must find ways to solve the problems of comparative jurisprudence. There is no escape from the ratio of the special and the general. The unity of the legal space is based on the general, which does not reject the particular at the same time. Comparative jurisprudence is the search for such paths that are necessary for each state to solve internal problems.
The efficiency of the implementation of internal norms is very important here.
The important role of the general principles of law recognized by civilized nations was noted. This formula is quoted from Art. 38 of the Statute of the International Court of Justice of the United Nations, which is an integral part of its Charter. General principles the rights recognized by civilized nations are the central ideas that have formed over the centuries, primarily in the states of Europe as the oldest continent, where law originated and functioned in the interaction of European states. General principles, for example, include the principle of good faith.
Religious sources can be found in the roots of existing legal norms. The beginnings of the principle of observance of international obligations, which is one of the main principles, can be found in the Bible and in the Koran. There is even a justification for this principle in the Qur'an.
General principles recognized by civilized nations have not been sufficiently studied in Russia. They can help in the development of legislation and in the implementation of international and domestic law.
The contribution of Russian legal science to the general theory of comparative law is not too great: either some innovations or anachronisms from foreign legislation are used, or schemes that seem useful, especially for educational purposes. The questions of the general theory of comparative jurisprudence are very significant, but the general theory of law and the state treats them quite condescendingly. In publications devoted to it, usually one chapter is given - "Legal systems of the present". This is all just illustrative material for the general theory of law, which, in turn, took its origins not in the Soviet period, but from pre-Soviet lawyers, including foreign ones. And the point here is not so much in teaching as in how the theory will develop. The problem of general patterns of typical trends in the development of national legislation is quite acute. It is commendable to know the historical roots and genesis of legal systems, but in the legal world, the boundaries of legal regulation are changing - sometimes narrowing, then expanding in different areas under the influence of not only the crisis, but also globalization. There is a need for strict unification through many countries of legislation or legal regulation in the field of technical regulation, in the field of operation of technical means, transport. In the sphere of economic turnover, financial turnover, the elements of unification are tougher. Convergence, or harmonization, in the sphere public law is more cautious, here the national interest is especially noticeable. The novelty of the last half century is that international law expresses the general typical tendencies of national legal development as an integrator, a common denominator. Russia, as if on a swing, then follows the model laws of the CIS, then believes that the EurAsEC is more interesting to us, then the Shanghai Five, then the Black Sea Commonwealth. Typification, patterns in the formulas of international law are very essential.
The main problems of modern comparative jurisprudence
As already noted, the allocation of the main problems of legal comparative studies per se is of scientific and cognitive interest. For the problematic definition of the subject field of comparative jurisprudence makes it possible to more vividly represent the variety of interrelated aspects of its subject, to correctly orient scientists for an in-depth study of these aspects. At the same time, however, one must not allow such a definition to replace the definition of the very subject of this science. With a problematic definition, the main task is to highlight important facets, areas, the study of which comparative jurisprudence is or should be engaged in the present stage its development. Therefore, the list of the main aspects of the subject field should be open, since it is impossible to cover all the diversity of the studied area.
The problematic field of comparative jurisprudence is quite extensive and diverse. This includes:
‒ general characteristics comparative jurisprudence: problems of the status, object and subject of comparative jurisprudence, its purpose, task and functions;
- the system and structure of comparative jurisprudence, its place in the system of related sciences;
- history of comparative jurisprudence in the world and in Ukraine, characteristics of the main lords of its formation and development, institutionalization and main schools of comparative jurisprudence;
- methodology of comparative jurisprudence: comparative legal methodology, types of comparison, other methodological (non-comparative) tools used in comparative legal research, methodology for conducting comparative legal research, method of use foreign experience in lawmaking and law enforcement;
- classification of legal systems, its criteria, the main factors affecting the classification of legal systems;
- the main legal systems (legal families) of our time: their formation and development, general characteristics (similarities and differences, general and special), sources, structure, legal technique, the nature of legal thinking and legal culture, specific institutions, main subtypes;
- problems of identification and determination of the place of individual legal systems on the legal map of the world;
- similarities and differences, general and specific, and legal phenomena of different legal systems, identified through the systematic application of comparative legal methodology;
- the influence of religion on legal systems, classical religious legal systems and their use in the law of modern states;
- interaction and mutual influence of legal systems: forms, methods and consequences; convergence of legal systems, legal acculturation, borrowing the achievements of other legal systems, the main trends in legal development in the globalizing world;
- correlation of international law and national legal systems, their harmonization, implementation of the norms and principles of international law in national legal systems;
- correlation between the law of integration (supranational, regional) associations and national legal systems, EU law and European legal families, EU law and national legal systems of the member states, adaptation of national law to the law of integration (supranational, regional) associations.
Criteria for the scientific character of comparative jurisprudence
Institutional and organizational criteria for the scientific character of comparative jurisprudence
The third category of criteria for the scientific character of comparative jurisprudence is the institutional and organizational criteria. Like any science, comparative law includes various institutional and organizational forms of scientific and cognitive activity: the scientific community of comparative lawyers, systematic scientific comparative legal research and publications, scientific periodicals, specialized international and national research schools, centers and institutes, congresses, conferences, seminars, systems of teaching and training of relevant personnel - comparative lawyers (faculties, departments, publication of educational programs and manuals), etc.
In historical terms, the organizational institutionalization of comparative jurisprudence has taken place since the late 1920s. XIX century. It was from that time that the first chairs and journals on comparative jurisprudence appeared in Europe (Germany and France). Over the course of the century, other institutional and organizational forms of scientific and cognitive activity in the field of comparative study of law have appeared.
In the modern world, there is an extensive network of institutional and organizational forms of comparative legal science 19. Corresponding institutionalization also took place in the post-Soviet space. In particular, in Ukraine and the Russian Federation there appeared corresponding research centers (Institute of Legislation and Comparative Law under the Government of the Russian Federation, Center for Comparative Law of the Institute of State and Law named after V. M. Koretsky), scientific periodicals ("Yearbook of Comparative Law" (Moscow), Journal of Foreign Legislation and Comparative Jurisprudence "(Moscow)," Porіvnyalno-pravovі doslіdzhennya "(Kiev)), teaching academic disciplines on comparative jurisprudence, corresponding departments, textbooks and tutorials... The last decade has been marked by a great increase in systematic comparative legal research: monographs, dissertations and scientific articles.
A famous event was the creation in 2006 of the Ukrainian Association for Comparative Law. Since that time, under its auspices, the tradition of holding annual international forums of comparative lawyers in different cities of the country was established: conferences, days of comparative jurisprudence, scientific seminars and round tables. Within the framework of these forums, open lectures by famous Ukrainian and foreign scientists are read, presentations of books on the profile are held.
Thus, after the above identification of comparative jurisprudence on the basis of three categories of criteria of scientific character, there should be no doubts about the recognition of its independent scientific status.
Major national and international centers for comparative law studies.
Comparative history of law
The object of the comparative history of law as a scientific discipline is a world historical legal process, both in its integrity (as a single historical space) and relatively large spatio-temporal scales (legal systems and their groups - families), and in its more or less autonomous structures (branches and institutions of law), and its subject is the laws of large qualitative and quantitative changes in historical and legal development on a global and relatively large space-time scales, in more or less autonomous structures.
All possible local histories of law, as well as national histories of law, enter into the object of comparative history of law not separately and not directly, but through the common that is inherent in all components of a single historical space, in other words, by their contribution to the ontologically integral world-historical legal process ... It is clear from this that the creation of local, national histories of law is only the first step towards a comparative history of law.
Integrating a variegated in time and space picture of the history of law into a single whole, the universal history of law has task to reveal that general, universal, universal, which makes it possible to create a picture of the evolution of law on a world-historical scale, to reveal the content specific to each of its stages and to trace its tendencies during the transition to the next stage, to find objectively necessary, essential, causal historical links between the most important events.
Undoubtedly, these tasks can be realized only within the framework of a special generalizing science. Such is the comparative history of law, which generalizes, synthesizes the disparate data of "frequent histories" of law into a single scientific picture of the world history of law, and not in the sense of mechanically combining these "private histories" of law, but in the sense of creative synthesis, not by simple summation, addition , but through homology. The need for it follows precisely from this nature of it.
The relation of the comparative history of law to the national history of law is conditioned by the presence of an empirical component in its structure; it relies on the results of empirical history as source material, and at the same time it extracts the factual material itself. It seems that K. Jaspers was right when he said that there is no true universality without the depth of contemplation of the individual. Moreover, the structure of the comparative history of law does not essentially differ from the chronological sequence generally accepted in the history of law. However, the former, in contrast to the latter, exploring the specific diversity of the historical and legal process, in the results of the study abstracts from this specific diversity, reconstructs the object in its most essential moments, revealing, as already noted, that general, universal, universal, which allows you to create a picture evolution of law on a world-historical scale and / or relatively large space-time scales.
Another difference - and this is the most important thing in the context of this work - of the comparative history of law from the history of law as such is in the extremely wide application of the comparative legal approach both in spatial scale and in temporal parameters, both at the macro (at the level of legal systems) and micro levels (at the level of legal industries, institutions), and the global, universal (world) level. This approach, along with the historical and legal one, is highlighted in the methodology of this scientific discipline. He, having a huge heuristic potential in revealing the patterns of development of the studied phenomena, acts as an effective tool of cognition. In this regard, the proposed program of comparative history of law corresponds to the general movement in modern jurisprudence, where comparative legal research is being significantly developed.
Sectoral comparative legal scientific disciplines
Taking into account the definition of the object of comparative jurisprudence in general, i.e. as a complex science, we can say that if the comparative legal theory covers all legal systems in general, then the objects of the branch comparative legal scientific disciplines are their respective parts, in the most general form, these are branches of law, and more specifically, they are can be any component of the legal system.
Typical definitions of the object and subject of branch comparative legal scientific disciplines can be presented as follows.
Object of the branch comparative legal scientific discipline- this is a slice of legal reality that includes elements of law (branches, institutions, norms and other legal phenomena, legal problems) as components of various legal systems, as well as the sphere (zone) of intersystem connections and relations of these elements.
The subject of the branch comparative legal scientific discipline is a correlated study of the relevant branch of law (its analogous legal institutions, norms and other phenomena) as an integral part of different legal systems, the establishment of their interaction and mutual influence on the basis of identifying similarities and differences (general, particular and individual) through the systematic application of comparative legal methodology.
In modern special literature, different names are used to designate branch comparative legal scientific disciplines. Traditional and most common is their construction using the concept of "comparative law", for example, comparative constitutional law, comparative civil law, comparative criminal law, comparative labor law, etc. The search for other names besides the traditional one can be explained by the fact that the concept of "comparative law" used in this case raises doubts due to the fact that it does not constitute a kind of law, is not a branch of law. In my opinion, such a doubt disappears in connection with its application to specific branches of law.
Comparative branch law is not, as it is often mistakenly believed, the result of a simple application of the comparative legal method to branch legal matter. After all, other sectoral legal disciplines use this method. Comparative branch law, like any comparative legal scientific discipline, differs from them in the way of applying comparison: here it is applied systematically. The comparative legal approach in the structure of the methodology of comparative disciplines, including comparative branch law, occupies a dominant position.
Comparative branch law is, as it were, a "meeting place" of comparative jurisprudence and the corresponding branch legal science. Thus, comparative branch law is in a kind of double subordination: it is simultaneously included in the disciplinary structure of both comparative jurisprudence and the corresponding branch legal science.
Theoretical and practical significance and relevance of comparative jurisprudence
In legal science, much attention is paid to comparative jurisprudence. And although disputes and discussions about the status of this scientific direction in the system of legal sciences, about the range of problems related to its jurisdiction continue to this day, it is now generally recognized that comparative studies of law are very important for the further development of legal science.
Comparative legal research in combination with the traditional historical, normative and sociological vision of law allows:
firstly, to study the phenomena of legal reality that were not previously covered by the problems of jurisprudence, and to go beyond the national framework of our legal system;
secondly, to look from a special point of view at a number of traditional problems of legal science, taking into account the trends in the development of law in the modern world.
For legal science, which is primarily concerned with national law, the use of comparative jurisprudence is especially important, because it helps to establish how the same legal problem is solved in different countries, expands the horizons of legal research, allows taking into account both positive and negative foreign legal experience ... At present, without taking into account the data of comparative jurisprudence, general theoretical conclusions cannot claim to be universal and generalized. On the other hand, some established concepts of legal science need to be clarified taking into account foreign legal experience and world legal thought.
The modern era is characterized by the growing trend towards interdependence of the states of the world community. Modern civilizations cannot be isolated exclusively on themselves, abandon contacts and connections, and, consequently, from knowing each other. At present, a very diverse social and political world is emerging, but at the same time interconnected, in many respects an integral world. Such unity and international interdependence with its inevitable mutual convergence underlie the comparability of modern legal systems. Comparative jurisprudence aims to show all this diversity in its legal aspects, thereby emphasizing the priority of universal human values in the development of law in civilized societies.
The need for international cooperation, global problems of our time (scientific and technological progress, ecology, demography, etc.) require close attention to the main legal systems of the world, a new vision of existing legal problems. And in this regard, the role of comparative jurisprudence is increasing as a way of studying and evaluating the legal spheres in which this cooperation takes place. Here ample opportunities open up for the use of comparative jurisprudence for the purposes of international cooperation, the formation of a single world legal space.
Comparative jurisprudence seeks to keep in sight all the major legal systems of our time. In this case, a situation arises of equality of legal systems in the scientific sense, in their theoretical study and classification. Recognition of the parallel existence of different legal systems creates a fertile ground for fruitful cooperation of lawyers from different countries, no matter how different their socio-political systems and legal structures... At the same time, a comparative lawyer is faced with the task of finding the best legal solutions specific social problems in a specific socio-economic, political and cultural context.
Comparative jurisprudence is multifaceted. First, it touches upon general theoretical ideas about law in general (and they do not coincide among representatives of different legal systems), shows the pluralism of legal concepts and legal thinking. Secondly, within the framework of comparative jurisprudence, not only problems are analyzed at the level of the general theory of law, but also issues of branch legal sciences, in connection with which comparative legal studies acquire an interdisciplinary legal character.
Thirdly, consideration of the problems of comparative jurisprudence has both a purely legal and socio-political significance, since it is in close connection with ensuring legal framework the deployment of democracy, the strengthening of the rule of law and the administration of fair justice.
Comparative jurisprudence is a complex area of legal research, which has scientific-theoretical and practical-applied significance. It is the most adequate tool for understanding the main trends in legal development in the modern era. At the same time, the achieved level of its development does not fully satisfy the needs of legal science and the needs of legal practice, provides insufficient material for fundamental theoretical conclusions, lags behind the requirements put forward by the reforms of the political and legal systems. There are a number of reasons for this.
First. Many legal scholars in soviet period when conducting specialized studies of the problems of theory and practice of comparative jurisprudence, they set themselves an unambiguously critical goal, which was realized mainly at the “revelatory level” of bourgeois law in terms of contrasting comparison. Of course, in the conditions of competition and ideological confrontation between two opposing socio-political systems, such a critical analysis was to a certain extent justified, but it should not be reduced to a biased selection of materials, pulling out individual facts, to unequivocally negative assessments.
Like any other scientific analysis, a comparative study of the legal reality of foreign countries is intended to give a true picture, not to squeeze complex, contradictory, dynamic processes into tight, predetermined ideological schemes that have developed in the past.
Second. Specialized studies of the problems of their national legal system were not accompanied by constructive legal analysis foreign legal institutions. At one time, a particularly negative role in curtailing research and comparative analysis of a foreign state and law in all their diversity was played by the "campaign to combat cosmopolitanism", when in the late 1940s this kind of research was recognized as "a manifestation of servility towards bourgeois culture." As a result, these two inextricably linked areas of legal research almost did not intersect when solving internal problems of national law.
Meanwhile, life has shown the need to develop comparative jurisprudence in its modern understanding: to study foreign law in a specialized manner, showing both its general laws and features, and the specific features of the main legal families and individual national legal systems; to consider, using a comparative method, foreign forms and experience in solving specific legal problems put on the agenda by the political and legal reform, especially in connection with the task of forming a democratic state governed by the rule of law and a just civil society.
In recent decades, legal comparative studies in the world have significantly enriched: the number and the thematic range of comparative legal studies are growing rapidly, new specialized institutions are being born, and the circle legal knowledge by comparative law. Comparative jurisprudence is very fruitful both in the field of improving national legislation and in the development, adoption and unification of international legal acts, as well as in the teaching of legal disciplines, since it has accumulated experience in generalizing empirical material, techniques and methods of comparative legal research.
The conference was attended by leading experts in these areas from legal and linguistic universities in Russia, Germany, and the CIS countries. The plenary session was opened by Irina A. Smolyannikova, Vice-Rector for Academic Affairs. and Dean of the Faculty of Law Vasilishin I.I.
Presentations were made by:
Chief Researcher of the Center for Public Law Research of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, Doctor of Law, Professor, Honored Scientist of the Russian Federation, Corresponding Member of the International Academy of Comparative Law - Yuri Aleksandrovich Tikhomirov;
Lecturer of the German Academic Exchange Service DAAD at MSLU - Hadlich Nancy;
Professor of the Department of Theory and History of Law of the National Research University Higher School of Economics, the Department of State Science, IGSU RANEPA under the President of the Russian Federation, Doctor of Law, Professor - Yuri Gennadievich Arzamasov;
Partner of the Moscow office of the Law Firm Baker & McKenzie - CIS, Limited - Gutbrod Max;
Professor of the RANEPA, Academician of the UN MAI, Honored Worker of Higher vocational education Russian Federation, President-Coordinator of the World Anti-Fascist Council (Committee) - Yatsenko Ivan Semenovich;
Head of the Department of International Law of the Law Faculty of the Moscow State Linguistic University, Doctor of Law, Professor - Nikolai Aleksandrovich Shulepov.
The conference discussed the importance and role of comparative legal research in the system of legal sciences, the use of comparative jurisprudence as a method of scientific research in the study of specific topical industry problems, the interaction of comparative jurisprudence with branches of law, and also considered its relationship with other humanities.
Particular attention was paid by the conference participants to the relationship of comparative jurisprudence with juris linguistics and forensic linguistics - areas of modern applied linguistics that are currently acquiring special relevance.
Within the framework of the section "Comparative jurisprudence in the field of criminal law disciplines" with a report on the topic "Comparative analysis of the features of the structure of behavior serial killers”Spoke the associate professor of the Department of State and Criminal Law Disciplines of the PRUE. G.V. Plekhanov, Ph.D. Alieva Gunay Aladdinovna.
At the end of the conference, the participants underwent testing, as a result of which those who successfully passed the work received personal certificates.
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Introduction
Chapter 1 Comparative Law: History and Present
1.1. The history of the origin and formation of comparative jurisprudence
1.2. Comparative jurisprudence as a science
1.3. The current state and prospects for the development of comparative jurisprudence
Conclusion
Introduction
Comparative jurisprudence (legal comparativism), on the one hand, can be defined as a relatively new area of scientific jurisprudence. On the other hand, comparative jurisprudence dates back to time immemorial. It begins from the time when societies, familiar with the very phenomenon of law, entered into interaction with each other. In case of external discrepancy, both observations turn out to be valid.
In time, the past, present and future have the right. In space, any legal system coexists with many other legal systems. Understanding of legal things and applied jurisprudence quite often go beyond the limits of national law. It is impossible, for example, to add up any developed and reliable legal theory without resorting to disparate legal systems. As the Bulgarian scientist J. Stalev correctly noted, J. Stalev. Comparative method in socialist legal science // Comparative jurisprudence: Collection of articles. articles / Otv. ed. V.A. Tumanov. M., 1978. S. 16 in order to fully cognize law, legal science must cover all its facets (aspects of the plane) in their temporal and spatial dimensions, and not in isolation, but taking into account the deep connections between them.
For Russia, a post-communist state that has abandoned the idea of an "iron curtain", familiarization with the world legal order is especially important. This is a surefire way to solve many of your own problems and eliminate the consequences of prolonged isolation. Entering the multinational legal world is meaningful. Legal matter does not tolerate any other attitude and punishes for superficial treatment of itself. The above factors determine the relevance of the work.
The purpose of the work is to analyze comparative jurisprudence from the point of view of its origin and development, the characteristics of how a science show its current state, as well as development prospects in the future.
The achievement of the goal will be facilitated by the solution of the following cognitive tasks:
· Show the history of the origin and development of comparative jurisprudence, the formation as an independent science.
· To highlight comparative jurisprudence in the system of other sciences, using the standard methods of differentiation by subject and object, as well as some other categories.
· Consider the current state of comparative jurisprudence, as well as the prospects for its development.
Research methodology. The research will use, in particular, historical, comparative, systemic, structural, methods, the method of formal logic, etc.
The degree of elaboration of the topic. Currently, there are a number of works and articles devoted to the issues of comparative jurisprudence, these are primarily the works of such scholars as Rene David, Yu.A. Tikhomirov, V.A.Tumanov, Zhivko Stalev, Zoltan Peteri, Jerzy Wrublewski, Sofia Popescu, M. Ansel, M. Reinstein, W. Drobning, Tille A.A. and Shvekova G.V. OH. Saidov, M.N. Marchenko, V.S. Nersesyants.
Structure. The work consists of an introduction, one chapter, including 3 paragraphs and a conclusion. There is also a list of used literature.
Chapter 1. Comparative jurisprudence: history and modernity
1.1 The history of the origin and formation of comparative jurisprudence
It was far from immediately possible to realize and understand in in full such a goal of legal knowledge as comparative jurisprudence. This required centuries and the natural progress of mankind, the development of law and the growing recognition of its role in the state, in society, in the regions and in the world. Nevertheless, one can note with satisfaction the interest of the thinkers of the Past centuries in the study of the law of "ancestors" and "neighbors". Even in Ancient Greece, with its abundance of city-states, attempts were made to study their legal charters. The Roman Empire, forming its own classic "Roman law", absorbed and processed legal regulations foreign peoples. In the Middle Ages, the fragmentation of societies made inevitable contact and even collision of the legal rules of kingdoms, principalities, duchies, and lands. The "right of the conqueror" won.
The 16th - 17th centuries are coming. Enlighteners widely used the comparative method both in the historical and regional plans See: Saibov A. X. Comparative Jurisprudence and Legal Geography of the World), Moscow, 1993.
English philosopher John Locke at the end of the 17th century. developed the teachings of the Greek thinkers about the idea of a single natural law, operating in nature, and in society, and in the state. Locke further developed the doctrine of natural law, focusing on the role of the individual in the system of natural rights and obligations. The ethical principle of the right to happiness is supplemented by the provision on the equality of people, on such a state of equality in which all power and all jurisdiction are reciprocal. Here new approaches to the state and political power are visible, which rejected their divine and other external sources... Functions state institutions become rather naturally organic. Therefore, the transition from the natural state to civil society is the result of a social contract See: Zaichenko G.A. John Locke. M., 1988.
Jean-Jacques Rousseau in his theory of the social contract develops the idea of "mandate", "receiving" power from the people and transferring it to the elect. Rule by the will of the majority, on the basis of laws, forms the rule of law. Critically rejecting the aristocratic traditions of the Italian states, Cesare Beccaria in his book "On Crimes and Punishments" (1764) substantiates the principle of equality on the basis of the law. He associates legal progress with printing, since it made the general public the keeper of sacred laws, snatching them from the hands of a narrow circle of initiates and rulers See: Beccaria C.O crimes and punishments. M., 1995.S. 75-82. ...
In the middle of the 18th century. Charles Louis Montesquieu develops a new political and legal theory. Criticizing theological and absolutist concepts of state and law, he forms the concept of separation of powers as an ideal structure of the state, as a counterbalance to despotism. Without giving its provisions that are known to the reader, we emphasize the use of the comparative method by the thinker. In his works "Reflections on the causes of the greatness and fall of the Romans" (1734), "On the spirit of the laws" (1750) Montesquieu analyzes and compares state systems past and present. In particular, most of the ancient republics had, in his opinion, one major drawback: the people had the right to make active decisions in the field executive activities what he is incapable of. Popular participation should be limited to the election of representatives For details, see: Azorkin N.M. Montesquieu. M., 1988. In the writings of Montesquieu, an analysis is given state structure Athens, the process of exercising power in monarchical states is considered.
The famous German philosopher Georg Hegel often used the method of comparative analysis in the study of social and state-legal phenomena. As an illustration, we can cite his article "The English Reform Bill of 1831". It is devoted to the discussion in the English parliament of the electoral reform bill with the aim of expanding and making equal representation in parliament from various localities and strata. In the process of analysis, Hegel draws attention to another virtue of the bill, namely, overcoming views of positivity as the basis of all institutions of English law, which are "given" by the authorities and reflect rather "private" privileges. The legal institutions of the continental states are based on the general legal principles of justice and equality. The influence of France on the rule of law in Europe is emphasized. The backwardness of England is explained by the dominance of aristocratic orders in it. The Constitution of the German Empire, which was only "a formless aggregate of private rights, created only an external connection between the German lands, is also critically assessed. Hegel G. Political works. M., 1978. S. 373-379 ".
As you can see, the great thinkers of the past were attracted by both comparative historical-legal and comparative-institutional analysis. Stable patterns, dignity and vices of state institutions were identified, sound and useful tips how best to arrange and conduct state affairs. And this cognitive tradition is preserved and develops in the future in the works of foreign and domestic researchers.
Interesting in this regard is the book of the French lawyer and political scientist Alexis de Tocqueville, who in 1835 published the book "Democracy in America". The author's trip to the United States was prompted by a desire to study innovations in the prison management system, as a revision of the Penal Code was being prepared in France. But the idea changed and led A. Tocqueville to a broad comparative study and comparison of state institutions in America and France. The "field" of comparison was different aspects of the state and public life of the United States: the principle of democracy, power in the states and federalism, the constitution, judicial branch... The channels of people's influence on politics and power, including parties, the press, elections, were subjected to the study. Particular attention was paid to legislation and legality and the reflection of social interests. Selected findings are summarized in a concise summary "Implications of the above for Europe. Tocqueville A. Democracy in America. M., 1992. ".
K. Marx and F. Engels did not ignore the possibility of comparing the state and legal institutions. Historically, the subject of their analysis was pre-state and state formations, stages of development of slave-owning, feudal and capitalist states and the prospects for the creation of a stateless communist society. At the same time, individual institutions of modern states - monarchism, parliamentarism, separation of powers, executive branch, elections were compared in critical and positive aspects... Numerous illustrations of labor, worker, constitutional, civil, family law in their individual manifestations are found in many works of the founders of Marxism in relation to Germany, England, France. This shows the cognitive and social functions of comparative jurisprudence used by them.
In Russian history, you can find traces of the mutual influence of law, both Russian and foreign. Russkaya Pravda was widely known and highly regarded in Europe. The compilers of the Cathedral Code of 1649 could not fail to take into account the experience of foreign codifications. Later external, foreign legal impact largely initiated by the tsars, who, with their political course, facilitated the perception in Russia of progressive legal ideas and institutions. The reforms of Peter I, affecting administrative management, to a large extent reflected the content and institutions of the legal systems of Sweden and Holland. Catherine II, following the same course, although encouraging acquaintance with the ideas of Voltaire and the French encyclopedists, was tough with regard to their practical application in Russia.
The famous French thinker Voltaire, in his correspondence with the Russian Empress Catherine II, reports in 1770 about the high appraisal of the "Order for the Compilation of the Code of Laws of Russia" prepared by her, which serves as a reproach to the French for their ridiculous and barbaric jurisprudence, based on the decrees of the Pope and church norms.
In 1777 Voltaire writes that he received a German translation of the Code of Laws and began to translate it into the language of the French barbarians. Voltaire and his colleague even contributed 50 louis in favor of the one who would draw up a criminal code close to Russian laws and most suitable for the country where they live See: Voltaire. Selected works. Voltaire's correspondence with Catherine b. M., 1947.
Formed in the middle of the 18th - early 19th centuries. domestic school law, when schools of jurisprudence are created, universities with departments of law.
The Russian-French war of 1812 and the subsequent influence of the Decembrist uprising could not but push Alexander I to modify state institutions. Speransky's enormous codification work in the first third of the 19th century. was consonant with the renewal of law in the West. It is no coincidence that, apparently, the draft civil code was considered later as a rework of the Napoleon Code both in terms of the system and in some details.
The process of a kind of "legal assimilation" is noteworthy, when the Code of Laws Russian Empire In 1835, many laws that were in force in certain territories of the Russian Empire - in the Baltic States, Poland, Finland, and the Caucasus - were not included. Local legalizations were collected and generalized, the Senate issued in Russian legal acts of Moldova, Belarus, the Caucasus. In the 40s. was approved by the "Code of local legalization of the provinces of Ostsee, compiled by the order of Emperor Nicholas Pavlovich." After the annexation of Finland to Russia, the Swedish Code of 1734, its marriage and family, inheritance, property, obligation norms, was confirmed on its territory. In Poland, the French Civil Code of 1804 continued to operate with changes to the sections on marriage, etc. In Georgia, they continued to be guided by customs and the Code of Tsar Vakhtang VI (early 18th century). For more details, see: Development of Russian law in the first half of the 19th century. M., 1994.S. 25-40. ...
In the works of scientists and writers of Russia in the XIX century. we find many examples of the skillful application of the methods of comparative legal analysis. One of the interesting attempts of this kind is the book by N. Ya. Danilevsky "Russia and Europe", published in 1871. It contains a deep analysis of the features of the general and special in the Russian state and European states, and the comparison is made against a broad historical, cultural and ethnographic background. The characterization of the state is combined with an analysis of its mono-national and multinational structure on the example of the Roman Empire, Germany and Russia. The federation is viewed as an organization of power from the bottom up, and the Slavic type of community of people predetermines, in his opinion, the possibility of creating a Slavic federation with Russia at the head as a kind of opposition to Europe Danilevsky N. Ya. Russia and Europe. M., 1991. Here the influence of the ideas of Bakunin and Lavrov is indisputable.
Russian legal scholars paid a lot of attention to comparative analysis in relation to branches and institutions of law. Remarkable in this sense is the "Collection of State Knowledge" published in 1875. Articles by F. G. Terper "Joint Stock Company" and D. P. Skuratov "Notes on Joint Stock Legislation" are based on a comparison of laws, regulations and statutes of Russia, England, Germany, France. The critical-bibliographic section of the collection contains reviews and articles about the experience of studying English indirect taxes, about the ancient law of the Baltic Slavs. Reviews of foreign literature on the issues of government controlled, finance and military affairs Collection of state knowledge / Ed. V. P. Bezobrazova. T. II. SPb., 1875..
For Russian legal thought of the late XIX - early XX century. the widespread use of the comparative legal method is very characteristic. Its capabilities allowed domestic lawyers and philosophers to compare different political and legal ideas and concepts, to assess trends in state and legal development in different countries. Both state scholars and civilians skillfully compared branches of legislation and legal institutions, enriching the cognitive potential of science.
The historical-comparative method in law is analyzed for details, see: Kovalevsky M. Historical and legal method in jurisprudence and methods of studying the history of law. M., 1880.
M. Kovalevsky brilliantly developed the issues of representation and self-government against the background of a number of states. B. Chicherin in "Course state law"in a historical and comparative perspective, examines the elements of the state and its institutions Chicherin, B. State law course. T. I. SPb., 1894..
N. M. Korkunov in "Lectures on the General Theory of Law" strictly follows the historical-comparative method of examining the evolution of private and public law, their relationship between each other is shown starting with Roman lawyers and ending with a review of the concepts of contemporaries See: Korkunov N.M. Lectures on the general theory of law. SPb., 1989.
P. I. Novgorodtsev's elaboration of the issues of democracy is very analytical, and the evolution of the views of political scientists and lawyers is combined with an objective analysis of real processes in different states... Noting that the ancient world knew only direct democracy and allowed its identification with a form of government, he singles out Rousseau's provisions on democracy as a form of state in which the supreme power belongs to the people. Self-government of the people can be expressed differently in monarchies and republics, and here Tocqueville's idea of the inevitability of democracy as such is critically assessed. The fear of the British to borrow "new" from France is sarcastically emphasized. PI Novgorodtsev connects the modern concept of democracy with the idea of the rule of law and freedom, equality of the individual, with the education of the people and the enhancement of their moral experience. The actual implementation of democracy is not the same in small Switzerland and in the USA, Canada, where the power of money and plutocracy is great, in France, in Latin America with a cycle of revolutions and oligarchies. Socialism is closer to the ideology of theocracy than to democracy See: P.I. Novgorodtsev Democracy at a crossroads. M., 1995.S. 388-406. ...
And legal theorists skillfully and convincingly juxtaposed legal views and the concepts of representatives of different schools and states, revealing what brought them together and divided them. This was especially true of the attitude towards law, which was often perceived in Russia from a nihilistic standpoint. BA Kistyakovsky sharply criticized such approaches to law.
GF Shershenevich in the "General Theory of Law" convincingly shows the advantages and disadvantages of various legal concepts and the reflection in them of the historical conditions for the development of law and the state. The role of encyclopedias of law is critically assessed, in particular, the reflection in Russia and France of the 40s-80s. XIX century. compositions of the German encyclopedia of law. Comparison with the law of other peoples was allowed rather in the historical aspect. Borrowing legal models was recognized as a development trend See: Kistyakovsky B.A. In defense of the law // Milestones. M., 1991.
A turn in Russian comparative jurisprudence occurs with the victory of Soviet power, when a new ideology becomes the basis for the formation and development of socialist law. A complete break with the ideas, principles and norms of bourgeois law has led lawyers - scientists and practitioners - to move away from a positive analysis of foreign legal systems. If in the 20s. you can still find favorable assessments of certain foreign legal institutions, especially civil law, legal technology, then later they disappear. V. I. Lenin critically assessed the bourgeois institutions of parliament, local authorities, courts, political rights and freedoms of citizens, electoral systems... The continuation of this line was the course of the Bolsheviks and the CPSU, the state for an acutely negative attitude towards foreign law and an openly apologetic approach to socialist law. Objective comparative legal study was replaced in legal science and propaganda mainly by critical assessment, which gave the impression of an absolutely valuable and isolated legal system of socialism.
In the course of scientific research, in the process of lawmaking and law enforcement, different assessments of comparative jurisprudence are given. Discussions are still going on around the nature, goals and functions, methodology of comparative jurisprudence. Whether it approaches the theory of law and sociology of law or acquires the significance of an independent branch of legal science, what are the cognitive possibilities of comparative jurisprudence, is it focused more on identifying general and comparable or legal diversity, specificity and incomparability, whether to apply the comparative method at the macrolevel of law or to conduct legal microcomparisons - this is, in general terms, the range of views in this area. Let's consider them in more detail.
The most fundamental scientific work, widely known to the domestic reader, is the book by the French scientist R. David "Basic legal systems of our time." Its first edition in Russian was published in 1967, the second in 1988. David R. The main legal systems of our time (comparative law). M., 1967; David R. The main legal systems of our time. M., 1988.
Using the second edition of the book, let us first of all note its wide range. It has a common part comparative law and the diversity of legal systems - and a special part of the different legal families. The combination of deep theoretical analysis with the generalization of a huge normative legal material makes the book a most valuable source of study and fruitful development of comparative jurisprudence.
Describing the debut of comparative law at the turn of the 19th and 20th centuries. and its modern significance, R. David identifies three of its main functions. The first is connected with the possibilities of studying the history of law and its philosophical understanding. The second is the use of comparative jurisprudence to better understand and improve one's own national law. Third, comparative jurisprudence is very useful for mutual understanding of peoples and the creation of the best legal forms of international communication.
Let us pay attention in this connection to the explanation given in the introductory article to the book. R. David seeks to overcome the tenacious idea that law is a national phenomenon. Opposing the interpretation of law as a state phenomenon, against its close linkage with the development of statehood, the famous comparativist develops the idea of "self-development of law", not limited by the boundaries of any state.
The general position of R. David is characterized, on the one hand, by the recognition of the close connection of comparative jurisprudence with the theory of law and the sociology of law, on the other hand, by the statement about comparative jurisprudence as the occupation of all lawyers who are able to apply the method of comparative analysis within the framework of various branches of legal science and legislation. ... Yet comparative specialists enjoy his special sympathy, since he himself is a member of their family.
Of interest is the collection of articles "Comparative jurisprudence" published in 1978 See: Comparative jurisprudence / Ed. V. A. Tumanova. M., 1978.
It combines the works of legal scholars from foreign socialist countries, in which the issues of methodology and methods of comparative jurisprudence, the goals and objectives of using the comparative method, the problems of comparability and incomparability of various legal systems, criteria and levels of legal comparison are considered. It is noteworthy that many general issues are analyzed by the authors in the context of comparing the law of two social formations - capitalist and socialist.
In the Soviet legal literature of the 60s and 70s. revealed a twofold attitude towards comparative jurisprudence. There are works devoted to its development within the framework of the world socialist system. The book by A. A. Tille "Socialist Comparative Jurisprudence" revealed the possibilities of using the methods of comparative analysis in legal studies, in practice See: Tille A.A. Socialist Comparative Law. M., 1975. Soviet lawyers recognized the comparative method as one of the methods of the Marxist-Leninist theory of state and law See: Fayziev M.M. The use of the comparative method by the classics of Marxism-Leninism in the study of state-legal phenomena // Soviet state and law. 1973. No. 8., but not the main one, but rather secondary and secondary. Its contrasting focus was clearly ideological.
At the same time, the good traditions of the Russian law school (M.M. Agarkov, E.A. In civil, labor, environmental, criminal legislation, these opportunities could be used more widely, in a number of branches of public law - much more difficult due to their obvious politicization. But in the branch sciences, the issue of the subject of socialist comparative jurisprudence and the range of application of its methods was discussed. Indicative are the fruitful attempts at comparative analysis of the legislation of the Union republics, which are now perceived with special gratitude in connection with the legal diversity within the framework of the all-Russian legal system See: Problems of a Comparative Study of the Legislation of the Union Republics. Tashkent, 1974. Works of a general nature contributed to the development of research in this direction See: Tumanov V.A.O development of comparative jurisprudence // Soviet state and law. 1982. No. 11..
Changes on the political map of the world at the end of the 80s. brought about changes in comparative jurisprudence. The political and economic rapprochement of the post-socialist countries with foreign states gave a powerful impetus to the openness of legal systems and their broad mutual influence. True, it did not become mutual, since the "models of Western law" began to be regarded as exemplary and universal. The dissemination of general legal ideas, concepts of the rule of law was accompanied and is currently accompanied by copying and mechanical borrowing of legal structures and legal decisions. The movement towards "general legal unity" has clearly accelerated.
Summing up the above, I would like to note that comparative jurisprudence has a long and deep history of development, has worried various thinkers and scientists at all times, has not lost its significance and relevance in the modern world community.
1.2 Comparative jurisprudence as a science
Science is a sphere of human activity, the function of which is the development and theoretical systematization of objective knowledge about reality. The concept of science includes both the activity of acquiring new knowledge and the result of this activity - the sum of scientific knowledge obtained by the given moment, which together form a scientific picture of the world.
Yu.A. Tikhomirov identifies four stages in the formation of comparative jurisprudence as an independent legal science. The first is individual attempts to compare different legal formations, the second is the use of historical and cognitive methods of comparing individual branches of legislation, the third is the use of the comparative legal method in the study of legal systems on a wide range of issues, and, finally, the fourth is the formulation of the theory of comparative jurisprudence Tikhomirov Yu.A. ... Comparative Law Course. M., 1996.S. 30.
V.S. Nersesyants, speaking about the place of comparative jurisprudence in the system of jurisprudence, also emphasizes the urgent need to develop the general theoretical foundations of comparative jurisprudence.
Thus, it can be stated that one-time, industry-specific cases of comparative analysis have grown into a general request, to which legal science and practice are waiting for an answer. In other words, the need for basic, systemic knowledge in comparative jurisprudence has already formed.
The object of science is that (those empirical real phenomena) that is still subject to scientific study with the help of cognitive means and techniques, and the subject of science is the studied object, what we know about it after scientific cognition.
Tille A.A., Shvekov G.V. recognizing the status of an autonomous science for comparative jurisprudence, they consider it a methodological science, which is part of the legal methodology A.A. Tile, G.V. Shvekov. Comparative method in legal disciplines. M., 1978.S. 1 8. What they have done in relation to comparative jurisprudence, the study of such concepts as the comparative method, science and methodology seems to be absolutely logical and accurate Ibid, pp. 11-21.
In fact, Rene David also adhered to the methodological nature of the science of comparative jurisprudence, considering it a method of studying legal systems David R. Comparative law // Essays on comparative law / Otv. ed. V.A. Tumanov. M., 1981.S. 19.
Methodology (from method and ... logic), the doctrine of structure, logical organization, methods and means of activity. Methodology in this broad sense forms a necessary component of any activity, since the latter becomes the subject of awareness, training and rationalization of the Great Soviet Encyclopedia. Edition. 3rd, v. 16, p. 164.
The object of the science of comparative jurisprudence is a set of techniques and operations of comparative legal research. At the same time, the objects of these comparative legal studies, taking into account the fact that we are talking about the branch of legal science - studying the state and law in general, are any comparable state-legal phenomena.
Considering the above, it seems that the most accurate definition of the science of comparative jurisprudence is the following - it is the legal science of the structure, organization and methods of comparative research of any comparable state and legal phenomena.
The structure and organization here means the issues of subjects, objects, goals and objectives of comparative research.
Under the methods - specific means and techniques, criteria for comparing objects of comparative research, ways of perceiving foreign legal systems.
This understanding of comparative jurisprudence as a methodological science also fully reveals its place in the system of legal sciences. For them, we mean branch sciences (for example, civil law, financial right etc.), "comparative jurisprudence serves as a theoretical and methodological basis" Tikhomirov Yu.A. Comparative Law Course. M., 1996.S. 31.
As you know, the subject of science is also determined through the tasks and goals it faces.
In this regard, it seems important to note that, in our opinion, specific comparative legal studies go beyond the tasks of the science of comparative jurisprudence - this is a matter of individual branch disciplines.
Obviously, in comparative jurisprudence, specific comparative studies and their results are studied in the same way as any science studies practical activity, in order to form general conclusions and concepts that are part of its subject.
Indeed, it is difficult to imagine that a comparative study of a sales contract governed by civil code France and the contract of purchase and sale, regulated by the legislation of Russia, was included in the range of tasks of comparative jurisprudence, solved within the framework of the subject of science.
Comparative studies of the legal systems of states and their classification, as a result of these studies, included in the tasks of comparative jurisprudence, in fact, are also methodological in nature, as if orienting (directing), when conducting specific industry comparative studies, in the selection of comparable objects, the amount of funds used and receptions, etc.
As for the connection of comparative jurisprudence with the theory of state and law, it can be noted that, in our opinion, these scientific disciplines have the same connection as, for example, the theory of state and law has with the history of state and law, constitutional law of foreign countries, etc. .d., at the same time, the volume of these disciplines, and the concretization of the subject, give full reason to consider them as autonomous disciplines of legal science.
So, for example, the theory of law and state is social science about the laws of the emergence, development and functioning of law, legal consciousness and the state in general, about the types of law and the state, in particular about their class-political and universal human essence, content, forms, functions and ultimate destinies Problems of the theory of state and law: Textbook / Ed. S.S. Alekseeva. - M .: Jurid. Lit., 1987.S. 9. It is easy to see that the theory of state and law "covers" other (all) branches of jurisprudence with its subject matter, at the same time, for the "general theory of law, another, higher measure of abstraction," normative concentration "is important, when the first element in this pair "Tikhomirov Yu.A. Comparative Law Course. M., 1996.S. 31.
Similarly, comparative jurisprudence, like all legal sciences, having a common object of research - law and the state, is concretized in that it examines them, in connection with the formation of concepts about the structure, organization and methods of their comparative research.
So, for example, norms, industries, institutions - immediate objects comparative legal studies are also objects of research in the science of comparative law, however, unlike the science of the theory of state and law, or branch sciences, comparative law does not form a concept about them, but studies them, in particular, from the point of view of comparability (comparability) between themselves.
So the Bulgarian lawyer Zhivko Stalev J. Stalev Comparative method in socialist legal science // Comparative jurisprudence: Sat. articles / Otv. ed. V.A. Tumanov. M., 1978. S. 25 considered it important to find a criterion with the help of which it is possible to find those institutions related to different legal systems, norms that are comparable to each other so that their comparison is justified.
Zoltan Péteri, highlighting the stages of comparison of law, puts in the first place "the establishment of comparability, in other words, the choice of a comparison criterion (tertium comparationis), which makes it possible to practically carry out a comparison between the phenomena under study." articles / Otv. ed. V.A. Tumanov. M., 1978.S. 81.
Thus, only in the case of recognition of the methodological nature of the science of comparative jurisprudence, there is clarity with the definition of its subject, object and place in the system of jurisprudence.
1.3 The current state and prospects for the development of comparative jurisprudence
The theoretical development of the problems of modern comparative jurisprudence is acquiring special significance right now. A number of articles by legal scholars published in the journals "State and Law", "Jurisprudence", "Law and Economics", "Moscow Journal of International Law", etc., present extensive materials of comparative legal analysis in relation to certain industries, sub-branches legislation, legal institutions... But they do not always have enough correctness of comparison, accuracy of assessments of possible "borrowing". Passive informational content sometimes dominates over true analyticity. Separate comparisons are made outside the general social, state context and legal systems in general. This explains the increased interest in the general problems of comparative jurisprudence. Let us note in this connection a number of useful scientific developments. One of them, undoubtedly, is the book by A. Kh. Saidov "Comparative jurisprudence and legal geography of the world." It contains an analysis of the Romano-Germanic and other legal families, shows the general and specific in the development of legal families and legal systems. Indeed, the interpenetration of elements of certain legal systems is becoming a very noticeable and growing trend See: Saibov A. X. Decree. Op. ... But it does not overlap the ways of differentiation of legal arrays, their branching off and independent existence. Therefore, it is desirable to combine the search for general patterns of legal development with a careful assessment of legal diversity in the modern world.
The reference book by FM Reshetnikov "Legal systems of the countries of the world" is useful. It has 24 essays on legal systems foreign states, mainly of Western Europe. In every essay a brief description of the state system is, as it were, preceded by the analysis of the legal system, sources of law and branches of private law (civil, commercial, family, etc.) and criminal law. Considered judicial systems states. In general, the book contains concentrated normative material which allows readers to independently study and compare national legislation See: Reshetnikov F.M. Legal systems of the countries of the world. M., 1993.
In some textbooks on the theory of law and the state, chapters are allocated on the main legal systems of our time 1 See: General theory of law. M., 1995.S. 341-373; General theory of law and state. M., 1994.S. 218-231.
But they give rather a characteristic of different national systems than a comparison. General and specific development trends are not fully determined. The legal mechanism for the approximation of national legislations, including under the growing influence of the norms of interstate associations and international organizations, remains aside.
Chapter III "The Russian legal system and legal families of the peoples of the world" of the book by V. N. Sinyukov "The Russian legal system" was written in approximately the same way. N. Russian legal system. Saratov. 1994.S. 161-177. ... In it, attention is drawn to the description of the Slavic legal family that is being formed in the author's opinion. A wider range of problems is covered in chapter XI "Comparative jurisprudence: current state and development trends of the" monograph " Russian legislation: Problems and Prospects "See: V. CuHwcoe. N. Russian legal system. Saratov. 1994.S. 161-177. ... The role of acts of the CIS and the EU for the harmonization of the legislations of the member states is shown.
The book of German lawyers Zweigert K. and Ketz X attracts attention. "An Introduction to Comparative Law in the Sphere of Private Law" See: Zweigert K., Ketz X. An Introduction to Comparative Law in Private Law. T. I. M., 1995.S. 8-11.
The authors' attention to the theory and methodology of comparative jurisprudence makes it useful for many lawyers, graduate students and students. Understanding under comparative law the application of the comparative method in the study of law as an object intellectual activity, the authors nevertheless share the previously expressed opinion about comparative private law as the quintessence of all comparative law. Nevertheless, the initial positions on the functions and purposes, methods of comparative law, comparisons at the macro and micro levels do not interfere with comparing comparative law with international private and public law and the history and sociology of law.
In addition to the traditional view of individual legal families, the authors tried to give another criterion for their classification, namely "legal style". This is a complex concept that includes the historical origin and development of the legal system, sources of law, dominant doctrines, and ideological factors.
So, summing up, it can be noted that comparative jurisprudence has great prospects for development and existence. As for the prospects for the development of this science, they will go in the following directions:
1. Expanding the scope of practical application of the discipline, increasing the role in legal science.
2. Differentiation within the discipline itself into different directions.
3. Increased interest from researchers.
4. Expansion of links with other disciplines, development of methodology and tools.
Conclusion
So, having analyzed and studied the educational and scientific literature on this topic, having studied regulations Having considered the opinions of the authors of various legal journals, I can say that the goals and objectives term paper achieved in full. The resulting material allows us to draw the following conclusions:
1. Comparative jurisprudence has a long and deep history of development, has worried various thinkers and scientists at all times, has not lost its significance and relevance in the modern world community.
2. Comparative jurisprudence can be viewed as an independent science with its own subject, method, goal and objectives.
3. Comparative jurisprudence has great prospects for development and existence, occupying a significant place in modern system legal disciplines. Many researchers have dealt with the issues of comparative jurisprudence. Science has many prospects for development in the following areas:
· Expanding the scope of practical application of the discipline, increasing the role in legal science.
· Differentiation within the discipline itself into different directions.
· Increased interest from researchers.
· Expansion of links with other disciplines, development of methodology and tools.
Bibliography
I. Normative legal acts:
II. Scientific and educational literature:
1. Stalev J. Comparative method in socialist legal science // Comparative jurisprudence: Sat. articles / Otv. ed. V.A. Tumanov. M., 1978.S. 16
2. Saibov A. X. Comparative jurisprudence and legal geography of the world. M., 1993.
3. Zaychenko G. A. John Locke. M., 1988.
4. Beccaria Ch. On crimes and punishments. M., 1995.S. 75-82.
5. Azorkin NM Montesquieu. M., 1988.
6. Hegel G. Political works. M., 1978.S. 373--379
7. De Tocqueville A. Democracy in America. M., 1992.
8. Voltaire. Selected works. Voltaire's correspondence with Catherine b. M., 1947.
9. Danilevsky N. Ya. Russia and Europe. M., 1991
10. Collection of state knowledge / Ed. V.P. Bezobrazova. T. II. SPb., 1875.
11. Kovalevsky M. Historical and legal method in jurisprudence and methods of studying the history of law. M., 1880.
12. The course of state law. T. I. SPb., 1894.
13. Lectures on the general theory of law. SPb., 1989
14. Democracy at a crossroads. M., 1995.S. 388-406.
15. Kistyakovsky B.A. In defense of the law // Milestones. M., 1991.
16. David R. Basic legal systems of our time (comparative law). M., 1967; David R. Basic legal systems of our time. M., 1988.
17. Comparative jurisprudence / Ed. V.A.Tumanov. M., 1978.
18. Tille AA Socialist comparative jurisprudence. M., 1975.
19. Fayziev MM The use of the comparative method by the classics of Marxism-Leninism in the study of state-legal phenomena // Soviet state and law. 1973. No. 8.
20. Problems of a comparative study of the legislation of the union republics. Tashkent, 1974
21. \ Tumanov V.A.On the development of comparative jurisprudence // Soviet state and law. 1982. No. 11.
22. Tikhomirov Yu.A. Comparative Law Course. M., 1996.S. 30
23. Tile A.A., Shvekov G.V. Comparative method in legal disciplines. M., 1978.S. 1 8
24. David R. Comparative law // Essays on comparative law / Otv. ed. V.A. Tumanov. M., 1981.S. 19
25. Great Soviet Encyclopedia. Edition. 3rd, v. 16, p. 16
26. Tikhomirov Yu.A. Comparative Law Course. M., 1996.S. 31
27. Peteri Z. Tasks and methods of comparative jurisprudence /
28. Comparative jurisprudence: Sat. articles / Otv. ed. V.A. Tumanov. M., 1978.S. 81
29. Zweigert K., Ketz X. An Introduction to Comparative Jurisprudence in Private Law. T. I. M., 1995.
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