Legal conditions for the life of society, etc. Legal life: concept and signs. The concept of individual legal life
LEGAL LIFE- a set of diverse types and forms of activities and behavior of people, their collectives in the field of law, aimed at ensuring conditions and means of subsistence, the realization of private and public, individual and group interests, the establishment of the values corresponding to them. Legal life characterizes the objective forms of being of a person and society, considered in unity, their attitude to law, the use of legal means for individuals and their associations to exercise their interests and needs. Legal life is conditioned by the phenomenon of applicable law and in this sense is a world of realities (actions, deeds, relations) ordered (provided for) by the rules of law.
Legal life can be viewed as the sphere of the implementation of law, its potential, creative role, or, figuratively speaking, the life of law, its being. It is at the same time a set of diverse forms of legal activity of participants in relations regulated by law. V legal sphere subjects are represented in different capacities: plaintiffs and defendants, testators and heirs, lawyers and prosecutors, judges and experts, witnesses and accused, voters and deputies, law-abiding citizens and lawbreakers, creditors and debtors, etc. At the same time, legal life includes in its content the scope of the so-called. "Shadow law" and various kinds of legal anomalies. Legal pathology in this sense is also a part of legal life, its ingredient. As an integral part public life, legal life is directly involved in solving social problems and its organization is subordinate to their implementation. Legal life can be considered both at the level of society and its individual communities, and even an individual; it is differentiated according to the spatial principle (legal life of the state, its individual territories), temporal (legal life of modern society and past legal eras); according to the level of legal development of society (legal life legal society and unlawful, with a totalitarian legacy), etc.
LEGAL ENVIRONMENT- taken in unity system of legal ties and relations, legal institutions, other legal realities, conditioned by the action of law and ultimately determining the nature, direction, intensity of legal activity implemented by social subjects - citizens, their associations, officials of the state and public apparatus. The legal environment is a social environment that has a positive and stimulating effect on the choice of lawful ways of activity by participants in regulated relations (the legal environment presupposes: perfect legislation, effective justice, a developed legal culture and legal mentality of the population and state structures that predispose them to act in accordance with the law and etc.). The legal environment is a systemic formation, the central element of which is a person, his social and legal activity, aimed at the perception, implementation and reproduction of legal regulations. The system of public relations and relations, reflecting the interaction of people in the sphere of public life, outlined by law, is the main, necessary and essential in understanding the legal environment. The legal environment in this sense is a process of movement of legal ties and relations that unfolds in space and time, which characterizes in its unity the legal life of society.
Legal activity of the individual and its content.
Legal activity is their social quality conditioned by social and legal foundations, needs and interests of people, characterized by their real implementation of legal requirements, principles and regulations.
Legal activity is a constituent part of social activity (activity of a social subject), the essence of which is revealed in the interconnection of the categories “subject” and “object.” Interaction, processes of subjectivation (transition and consolidation of object properties in the organization and structure of the subject) and objectification (realization of subjective properties outside , objectification of the object) and constitute the essence of the category "activity".
As a type of social activity, legal activity is a unity of internal (a set of properties acquired by a person in the process of his legal socialization) and external (actions, activities of a person as a consequence of the external manifestation of internal characteristics (properties) of its bearer) aspects.
If the internal aspect of legal activity reflects the susceptibility of human individuals to legal influence, their perception of law and its values, then the external aspect of legal activity characterizes the opposite process: the influence of its carriers, in accordance with their needs and interests, on the social and legal environment, during which it undergoes certain transformations. carriers of legal activity have a real opportunity not only to adapt to the surrounding reality, but also in a known way to adapt it to themselves. In this process, there is a mutual enrichment of the subject and the socio-legal environment in which he finds himself. The interaction of the subject with the legal environment is both a factor in the self-realization of the creative potential of individuals and a source of their development. legal culture, enrichment of the entire spiritual image. Realizing legal activity, a social subject simultaneously transforms the social and legal environment and at the same time realizes his own creative potential, satisfies diverse personal needs and interests.
Social and legal activity is expressed in a person's understanding of his personal responsibility for the state of law and order in the country. It consists in the fact that a person is constantly aware of himself as a citizen of the Republic. The individualistic principle "this does not concern me" is alien to him.
To educate a person with socially active behavior means to prepare an active conductor in the life of legal policy, an organizer and participant in the solution, current and future tasks of strengthening the legal basis of the state, a defender of the individual, his rights and freedoms, property, the natural environment, social and state system, constitutional order, peace and security of mankind.
The formation of socially active legal behavior should begin with the formation of citizenship, because a person's legal activity is closely linked with high ideological conviction, systematic participation in solving public affairs, devotion to moral ideals and principles of humanism, the desire to follow them, defend them, the manifestation of an active position, mental and attentive attitude to people.
Understanding the need for personal contribution to law enforcement, to improvement legal system, the prevention of violations of law and order comes to a young person along with a feeling of love for the Motherland, a sense of responsibility along with a sense of love for the Motherland, an awareness of responsibility for its prosperity, progress along the path of progress. Step by step, a sense of duty develops in him, acquiring completeness and versatility as his worldview is formed. A young man begins to realize his duty as a system of specific obligations to society, to the state.
The core of the formation of the social activity of a young citizen is ideology. Many people relate to ideological education with -
vigilance, critically, as a product of a totalitarian system. Meanwhile, the ideological education of the younger generation remains one of the most important tasks today. True, its content has now changed somewhat. It should be based on the ideology of national independence and aimed at instilling in young citizens a sense of constant concern about the fate of the Motherland, the people, the desire to strengthen its political, economic and legal foundations. Young people should understand the processes taking place in society, want to fight against the phenomena that hinder the transformations taking place in the Republic, develop an active life position and consciously strive for the triumph of law and order. And for this, it is necessary to arouse among young people an interest in the state and legal sphere of society's life, understanding the value of law not only for society, but also personally for each of its members. Interest, passion is one of the most important factors in the development of social activity of young people.
An important condition for the formation of social and legal activity young man- respect for his dignity, rejection of command forms of communication with him. We must not declare legal norms. And to convince young people of their correctness, to enthrall young people with useful deeds, to encourage responsible behavior. If you seek from young people only blind diligence, unquestioning following orders, they will never get rid of infantilism, social immaturity.
The stream of the forming consciousness of the younger generation should be directed to ensure that all acquired knowledge, all life impressions prompted him to a serious internal restructuring, enriched with his own thought and become a state of personality. Only a person with a tense inner life is able to independently act in the interests of society, without waiting for special assignments and assignments.
Legal progress and its content.
LEGAL PROGRESS- an objective, natural, characterized by an ascending orientation of the process of legal development of society, its social groups and personality. The category of legal progress reflects the direction and the qualitatively increased level of the processes taking place in the political and legal sphere of society; the growing role of law in solving general social problems and in the legal life of every person, his (right) increased value and authority; tendencies for further strengthening of legal statehood; the spread of the proportion of legal activity of citizens and representatives of power structures in the general array of legally significant behavior and activities; real security of the rights and freedoms of citizens.
Legal progress reflects the nature and level of legal development of society, its progressive-stage movement from less perfect to more perfect forms of legal life, from a less developed to a more developed legal culture and legal system. This is the progress of law (the presence of developed modern legislation that meets the principles of the democratic structure of society), the culture of legal communication between the population and the authorities, interpersonal and group relationships, the rule of law over chance and discretion, legal mentality, legal consciousness in general, predisposing to civilized forms of achieving actual goals , a legitimate way of organizing behavior and activities, tolerant positions and actions in relation to power and in relation to other individuals belonging to other identification social groups. Legal progress reflects the access of new social groups of the population to rights and freedoms, strengthening of guarantees of rights and freedoms, their realizability, etc.
Legal progress is undoubtedly associated with the quality of legal tools, its accessibility for everyone, without exception, to use legal means to resolve personal, corporate and public interests.
Legal progress is characterized by high legal awareness of the population, professional and legal competence of state officials, high prestige of legal institutions, their social relevance and social benefit. The progressive development of society presupposes the presence of a developed system of professional and legal education and legal universal education of the population, a real possibility of acquiring legal knowledge and the unhindered receipt of the necessary legal information. The progressive legal development of society, therefore, is associated with its democracy, openness, development of institutions and systems of civil society.
Legal progress is characterized by the phenomenon of legal harmonization:
between the rights of the individual and his duties; between the proclaimed (declared) rights and rights that are realizable, guaranteed by law and the entire socio-political system of society and the state; between the attitude of the mass conscience to the expected legislative innovations and the actually emerging legislative practice; between the presumption of knowledge of the law declared by the law and the level of legal awareness actually fixed by social “measurements”; between the legal policy of the state and the effectiveness of the operation of law, legal institutions of the state, first of all; between the increasing number of professional lawyers in society and the general growth of legal awareness and legal culture of society and its individual groups; an increase in the number and "cost" of law enforcement agencies and the level of public safety, the state of the fight against crime and law and order; between the declared and the real, de facto legal order.
The progress of society and legal progress are interrelated and interdependent phenomena. No matter how some theorists distance the state from law, and law from the state, it is obvious that the development of each of them is impossible without mutual influence. Law and legal constructions, at best, can remain the property of history (monuments of law), if they do not acquire vitality, do not become effective, and do not serve as tools for ensuring social comfort of both an individual and communities of people. To a large extent, the state, the institutions of state power, gives a real operating character to the law. The question of what law should become, of its progress is at the same time the question of what the state should be, in the final analysis it is also the question of the progress of the state. State nihilism is just as unacceptable as legal nihilism.
Legal life of society: problems of theory and practice
Monograph
Edited by Doctor of Law, Professor, Honored Scientist of the Russian Federation A.V. Malko
Foreword
Legal life is a complex and multifaceted phenomenon that needs a comprehensive analysis, both from a theoretical point of view and from the point of view of practice.
For modern legal science, the category "legal life" is relatively new. Despite this fact, there are earlier monographic studies. Over the past 10 years, a lot of theoretical and practical material has accumulated that needs to be understood and generalized. It seems that today a new stage is beginning in the development of the analyzed category.
The monograph provides a theoretical and methodological development of the selected concept, a study of its nature and patterns of development, as well as connections with the category of "legal policy". Particular attention is paid, in particular, to such individual elements of the legal life of society as subjective right and legal obligation, legal regulation, legal situations, and some of its varieties (for example, judicial, penitentiary, virtual, international legal life).
The proposed collective work is the next "step" in the analysis of the modern legal life of society as a rather dynamic phenomenon and an extremely broad category of jurisprudence.
Scientific editor - Doctor of Law, Professor,
Honored Scientist of the Russian Federation
A. V. Malko
I. Legal policy and legal life of society
1. Legal life of society as an extremely broad legal category (A.V. Malko)
In a modern society associated with global processes and challenges of the time, more and more scientific efforts are required to create categories that reflect these processes and challenges that can explain the emerging social realities, offer solutions to new economic, political, moral and other problems. Legal science is no exception here, which is also experiencing an acute deficit in the field of the most generalizing concepts, with the help of which it would be possible to fully investigate the complex and multifaceted processes taking place in the legal development of various countries.
Among such concepts that are passing the stage of their formation, at the turn of the XX-XXI centuries, the category of "legal life" was also singled out, which can be understood as a form of social life, expressed mainly in legal acts and legal relations, characterizing the specifics and level of legal development of a given society, the attitude of subjects to the law and the degree of satisfaction of their interests.
It is she who is called upon to reflect the complex and contradictory legal reality, the inextricable connection of various legal phenomena with all other spheres of the life of society - economic, political, moral, religious, etc.
However, in the literature, the introduction of the category "legal life" into the conceptual series of legal science has received an ambiguous assessment. Some authors advocate such an introduction, while others agree with a detailed study of legal life itself, but do not approve of "giving" it the status of a scientific category.
If we talk about the former, then the idea of promoting legal life as a category was supported by philosophers, successfully defended candidate dissertations, as well as a number of monographs, collections scientific papers and materials of conferences and round tables. Scientific support of the process of "giving" legal life a categorical status is carried out by special specialized journals "Legal Policy and Legal Life" (published by the Saratov branch of the Institute of State and Law of the Russian Academy of Sciences) and "Legal Life" (published by the Faculty of Law of the Tajik National University).
From the standpoint of a synergetic approach, the problem of the legal life of society was considered by K.V. Shundikov, who correctly noted that “one of the integrative legal abstractions, relatively recently introduced into scientific circulation, was the concept of the legal life of society,” which, including both lawful and and illegal components, "challenges the problem of the complexity of the object of legal science, in fact, being an attempt to develop a more adequate (in comparison with previously used) methodological algorithm for its solution", "draws the attention of scientists to the problems of contradictions in legal sphere, various kinds of defects legal regulation, legal deviations, legal negative ".
It seems that the use of a synergetic approach in the study of the legal life of society is very promising. It allows you to take a fresh look at legal reality, identify self-organizing principles in it, and determine the sources of its development. Thus, a contribution is made to the creation of the theory of the legal life of society, the methodological resource is improved, with the help of which the named legal life can be fully analyzed.
If we talk about those who do not agree to "grant" categorical status to the legal life of society, then, in particular, V.M.Baranov in this regard notes that "the category of" legal life "can hardly acquire a strict epistemological status and this "find" your logically justified place in the conceptual series general theory rights "and therefore" I cannot share the optimism of A. V. Malko regarding giving the concept of "legal life" the status of an independent legal category with all the ensuing consequences. "
I would like to understand in more detail the position of V. M. Baranov, since it is the most reasoned. On the one hand, initially, on page 21 of his monograph "Shadow Law", he considers the definition of the legal life of society to be "generally acceptable". But already on page 23 he emphasizes that it is illogical to define “legal life” through “forms of legal being”, “because“ legal being ”is just as voluminous and as indefinite a category as“ legal life ”.
As for the illogical nature of the definition of the legal life of society through "forms of legal existence", we partly agree with the above remark and propose to define this concept through the more general (generic) concept of "form of social life", which is very actively explored in the philosophical and sociological literature.
V. M. Baranov does not argue the criticism of the tenth feature of the legal life of society, which, in his opinion, "is, from the point of view of logic, an irreconcilable contradiction." This feature itself is as follows: “legal life contains a complex of all legal phenomena, including both positive and negative components. If to the first should include the law itself (reflecting human rights, ideas of justice, humanism, freedom, etc.), the legal system as a whole, the mechanism of legal regulation, legal legal acts(lawful actions, their results, legal documents), legal actions (as a type lawful action- of a legal fact) and events as legal fact, legal regimes and their constituent primary legal remedies(benefits, incentives, permissions, prohibitions, punishments, duties, etc.), legal relations and legal practice, legal awareness and legal culture; legality and order, legal science and education (and their structures), etc., then to second mostly negative, illegal phenomena (crimes and other offenses, their subjects and criminal structures, corruption, abuse, deformations of legal consciousness, expressed, in particular, in legal nihilism, idealism, populism, errors in law and other factors that hinder positive legal activity) ".
VM Baranov notes that "the second part of this feature, as we can see, is mostly negative, and it is in this capacity that it is" present "as the opposite of the positive component." However, this statement does not prove a logical "irreconcilable contradiction", but only declares it.
It can be assumed that the inclusion of a negative, illegal component in the concept of "legal life" seems vulnerable from the standpoint of formal logic, since it seeks to bring different, including directly opposite, phenomena under the general generic concept of "legal". Yes it is. However, we had to note more than once in the literature that the lawful and illegal principles of the legal life of society are legal by their nature (in the sense of legal) and are constituent parts of the legal environment, they are segments of the legal field. Of course, both of them differ in nature and direction, such as lawful and illegal behavior. But both behavior - legal... In this regard, V. N. Kudryavtsev correctly noted that "the main difference within the framework of legal behavior is the difference between lawful and illegal behavior." This is also emphasized by RT Zherugov when he writes that “the concept of“ lawful behavior ”is part of a broader category of “legal behavior”, the content of which covers any legally significant activity, including illegal ”.
Malko, A. V.
Mikhailov, A. E.
Nevvazhai, I. D.
2002
Annotation: Published: Scientific-analytical journal "New legal thought". - 2002. - No. 1. - P. 4 - 12. Full text of the document:
Legal life: philosophical and general theoretical problems
In our country, legal sciences have long been under a certain ideological influence. This, in particular, was expressed in the limited methodological resources used in the study of fundamental aspects of legal reality. Domestic philosophy and theory of law to a large extent still continue to rely on philosophical paradigms formed within the framework of classical philosophy. We see our task in showing the need to use new methodological resources to comprehend such phenomena of the life of society, to which almost no attention was paid before. We mean, first of all, the existence of a special sphere of social life - legal. In our opinion, the following three circumstances are the basis for raising such a question and developing the concept of legal life: the existence of the sphere of the unconscious in social life, the presence of pluralism of cultures and the special status of human rights and freedoms. Taking into account in the theoretical analysis, at least these three circumstances, makes us pay attention to the need to develop a new methodology in the study of the phenomena of legal life.
The most widespread and well-established prejudices regarding the phenomenon of legal life in the domestic theory of state and law are associated, in our opinion, with the absolutization of conscious total control of the life of society, with the absolutization of the unity of legal cultures of its various strata and underestimation of the importance of the institution of human rights in the life of the state and society.
The ordinary understanding of legal life is reduced to the idea of the sum of the phenomena of public life, which have a legally defined form and content. In the case when we talk about legal life, without specifying the meaning of the concept of life, we will not find anything new in the concept of legal life.
Investigating the nature of the legal life of society, in our opinion, it is necessary to be guided by the principle of "philosophy of life", which allows you to understand daily life as an organic, dynamic system capable of self-organization, for the production of norms of rational behavior, social activity. This position is recognized by many scientists. So, for example, A.B. Vengerov notes that “in the legal life of society in crisis situations, states of uncertainty, instability can arise, and then the subjective, accidental, self-organizing sometimes sets the most unexpected directions of development, changes, forms the defining tendencies, transitions of society from one legal state to another ...”.
The problem of legal life begins in a philosophical sense with the question of what life is in general. The life of a bee swarm or the life of a termite mound is characterized by a high degree of order, and sometimes serves as a model of a society with perfect order. In what sense are we talking about, say, the life of a termite mound? This is a set of all forms of action, organization, inherent in the termite mound. Or more simply: this is everything that happens to him and in him. It would never occur to anyone to talk about the legal life of termite mounds. The reason seems simple: the lack of consciousness and free will among the "population" of the termite mound. From this, it would seem, it follows that legal life exists only there and then, where and when actions are free and accompanied by control from the side of consciousness. In other words, we think of any social life, including legal life, as a set of conscious acts. But after Marx and then K. Jung discovered the sphere of the collective unconscious, it would be a methodological mistake to reduce the social life and the life of an individual to a set of conscious actions. Such a mistake is often made by those theorists and practitioners of law who see legal life only from the side of legally formalized and officially recognized conscious acts. Therefore, in fact, it is not the life (legal) of people that is recognized, but the life of official ideas and the institutions corresponding to them. This essentially ideologically biased vision of legal life is outdated in the light of the real processes that we observe in the life of modern society. The consequence of such an ideological approach, which rather reflects the desired than the actual, is the orientation towards the recognition of the unity of legal life, conditioned by one system of law and legislation that exists in each given country. Hence the second mistake, which is that the fact of the heterogeneity of the legal life of society is not recognized. As noted by N.I. Krylov, "people's life, and especially legal life, is too diverse, polysyllabic, elusive."
Paying attention to the special status of legal life in society and speaking about the need for its recognition, we mean, firstly, its relative independence and independence from other forms of social life, and, secondly, what is more important, it has a fundamentally subjective character. This means that life is reality, which is lived, which is lived. It cannot be something external in relation to the subject of legal life. Life is not something in which one lives, but the very way of existence in the world of a subject of activity, cognition, evaluation, experience, thinking. These simple considerations are the main pathos of the philosophy that we know as the "philosophy of life."
Thus, if we pose the question of recognizing a special sphere of legal life, then this means recognizing the subjective (and not only objective) nature of legal forms of life. In other words, if someone lives a legal life, then it belongs to him as a subject, it is his - the subject - his own life. Here a person, in the words of Kant, necessarily acts as a goal, but never only as a means of legal life. From this point of view, for example, the system of functioning in society legal norms cannot be considered as an attribute of life, if it is not a way of subjective goal-setting being of a person or a certain group of people.
The first circumstance we have highlighted - the relative independence of legal life - is a consequence of the second: if legal life has a subjective character, then it contains in itself the foundation, the principle of its existence and its own goal. This can be explained as follows. Everything that is not my life is only the external circumstances of my life. Likewise, the "life" of laws, legal institutions etc. there are legal circumstances of that legal life, if its subject does not generate these circumstances, does not own the means and methods of their reproduction. The legal life of a certain subject can, of course, proceed in legal forms as its external circumstances, but it can also have other forms that have a legal nature. Of course, legal life is associated with legal rules of conduct (regulations) and with the corresponding legal implications... As noted by the famous Russian theorist of law I.V. Mikhailovsky, "the main feature of the concept of legal life is the presence of legal norms ... regulating the order of the joint life of people, their mutual relations ...".
The concept of "legal life" is a general theoretical concept in its essence, summarizing various sectoral types of legal life. For the most complete study of it, let us consider its relationship with such related concepts as "legal form", "legal system", "legal superstructure", "legal environment". There is no doubt that they have a lot in common. All of them act as a kind of complex, extremely broad concepts - categories that include numerous legal elements: legal acts, legal awareness, legal practice, legal relations, etc. These concepts are interconnected, they represent rather large layers of the existence of law, contain various forms of its manifestation. At the same time, “legal life” is an independent legal category that differs from the above categories. The closest to it is the category "legal form", which is mainly used in a certain context, primarily in order to structure social ties and show the role of law as a formal legal institution in its relation to socio-economic, cultural, moral and political content - diverse and primary social relations. However, the concept of "legal form" does not reflect the entire legal reality, since it cannot include its negative, illegal, implicit part. Reflecting all legal reality (both present and past) is the prerogative and, in fact, the main purpose of only the concept of "legal life" (the word "life" itself in many respects denotes just the real reality).
In the literature, an opinion has been expressed, according to which the concept of legal life does not have a special scientific status. So V.M. Baranov denies the validity and specific content of the concept of "legal life". On what basis does this denial take place? V.M. Baranov writes that other concepts, such as “the existence of law”, “legal environment”, “legal reality”, “legal reality”, “legal sphere”, are “no poorer” than the concept of legal life. As for the concept of "legal environment", then it should be related to the one whose environment it is. It makes sense to talk about this, but such a concept is not a "competitor" to the concept of legal life, since it does not have a clear scientific status. The concept of "legal sphere" can be assessed in the same way. At best, it is an unscientific expression of the meaning of the concept of "legal reality" or "legal reality". The latter two are simply synonymous outside of a specific philosophical context. They designate the totality of existing legal phenomena that take place in each particular society. Lawyers use the term “being”, as a rule, not in a philosophical sense, but simply as a designation of everything that exists, that exists and pertains to the law associated with law. That is, “legal being” is everything that is that has the attribute of legal; “Being of law” is law in its being, law as it exists in reality, as it is (in the sense of being). The term “is” also contains another meaning - the bundles in the judgments “A is B”, when we say about something that it is not just there, but is something, has something, belongs to something.
Legal life is an extremely broad category, which includes both the law and its implementation, and the shadow component. It is not identical with the concept of "life of law". The latter is the realization in reality of right itself. Therefore, this concept is narrower and is included in the concept of "legal life".
Legal life cannot be reduced only to legal forms being, for legal reality also encompasses consciousness, or rather legal consciousness with its elements - legal psychology and legal ideology.
Just as in political science, along with the concept of "political system", there is the concept of "political life", and in jurisprudence, along with the category "legal system", it is necessary to "register" the category of "legal life". That is, in legal science, the concept of "legal life" and "legal system" should be correlated in many ways similar to the correlation in political science of the concepts of "political life" and "political system" (and in economic science - the concepts of "economic life" and "economic system") ... The legal system creates conditions for the normal course of legal life, ensuring its stability, neutralizing and displacing negative legal phenomena (offenses, abuse and other "malignant legal tumor") from it. In other words, it plays an organizing role in relation to legal life, gives it a certain unity, legitimate principles. Hence, it is important to improve and strengthen the elements of the legal system of Russian society, which will contribute to the enrichment and optimization of its legal life. Meanwhile, the legal system acts only as a constituent normative-ordering part of legal life itself, for the latter phenomenon (and concept) is wider than the first.
It is correctly noted in the literature that "being a side of legal life, the legal system appears as an internally organized, dynamic integrity, consisting of processes and actions leading to the formation and improvement of legal phenomena and the relationships between them."
In this regard, the concept of "legal life" allows a much more comprehensive look at the legal reality of both positive and negative aspects. Such a view is necessary, because it gives a certain integrity to legal realities. After all, it is important to see in legal life not only pluses, but also minuses. It is with the latter that the law and the entire legal system are called upon to fight. This category makes it possible to look at the existing legal life not through "rose-colored glasses", but, on the contrary, with all its achievements and shortcomings, successes and failures, achievements and mistakes, strengths and weaknesses. Among other things, it characterizes not only the aggregate ordered and disordered legal reality, but also the process historical development law in general, the main stages of its evolution. This is how the category "legal life" differs from the category "legal reality".
It would be logical to link the concept of legal life with that set of relations between people, which always exists in the form of certain acts expressing these relations, actions. In this regard, it is necessary to single out a factor that would be systemic in relation to the system of existence of legal forms, that is, without which acts performed by people are not thematized as legal. As such, in our opinion, we can take the concept of damage. “Until people find themselves in a situation of mutual infringement of freedom,” A.A. Matyukhin, - the law, being a measure of such a restriction, does not remind of itself in any way. " Legal relationships arise between people where and when the interaction between people can lead to damage by one subject to another. But this circumstance alone is not enough, a second circumstance is necessary, which is that the subjects recognize the need to compensate for the damage caused. In accordance with this, it would be possible to define the source and basis of legal life as a set of various acts arising in the process of life related to situations of the possibility of causing damage to another person and the recognition of the need for his compensation.
Recognition of the fact of the existence of legal life requires going beyond the boundaries of the well-established traditional ideas about law, its essence and functions, about the nature of social and legal regulations, in particular, about the structure and functions of legal consciousness and legal culture, about the means and ways of regulating legal relations in society. This is due to the recognition of any, in principle, social unit as a subject of law, any subject claiming any right. Legal life is a process of interaction of many types and types of subjects of law. Moreover, not all of these subjects are recognized as such by the law officially operating in the state.
One of the reasons for the need to recognize legal life is political pluralism, which takes place in a modern democratic society. The fact of political pluralism is not limited to the class structure of society. It is viewed as an expression of a more fundamental circumstance, namely, the conditioning of forms of social life and consciousness by culture. At the same time, the system of political, legal or ethical ideas is understood not as a simple reflection of objective reality, but as a system of interpretations determined by cultural symbols. This pluralism exists, as H.Y. Sandkühler, the result of the existence of "a plurality of symbolic worlds and associated modes of human action, numerous images of the world and self-images, cultural and behavioral differences." Legal pluralism follows from this. Indeed, as noted by Hans Kelsen, the norms of law are culturally loaded "schemes of interpretation" of existential acts, actual circumstances, objective events of reality. Assuming a pluralism of culturally determined "schemes of interpretations", we can theoretically admit the possibility of the existence of a plurality of legal norms, which are based on different interpretations of facts. G. Kelsen noted that “... a phenomenon as such, as an element of nature, does not constitute a subject of specifically legal knowledge and does not belong to law at all. What turns this action into a legal (or illegal) act is not its factuality, i.e. not its causally determined being, included in the system of nature, but the objective meaning associated with this act, the meaning that it possesses. A concrete action receives its own specific legal meaning, its own legal meaning due to the existence of a certain norm, which in terms of content corresponds to this action, endowing it with legal meaning, so that the act can be interpreted in accordance with this norm. The norm functions as a schema of interpretation (Deutungsschema). " Therefore, we are dealing with a multitude of legal facts concerning both different and the same real events. As you know, the official law in force in the state excludes such pluralism. This is due to the fact that the state recognizes, according to G. Kelsen, one fundamental norm, the reference to which "makes" other, secondary norms legal. But those "schemes of interpretation" of events that the state sanctions are an expression of only one of the possible symbolic worlds associated with a certain type of culture that exists in a given society. So, for example, "the norms that determine some behavior for granted can also be established by means of acts that constitute the content of the custom." The foregoing allows with sufficient grounds to raise the question of the existence of pluralism regarding the interpretations of events and, as a consequence, the question of the existence of a multitude of autonomous legal norms, subordinate to different and not reducible fundamental norms. This kind of pluralism is one of the prerequisites for legal life. Different individuals, social groups, in different time, v different place and in different life circumstances can give different "legal" interpretations of the same events. This may be due to a variety of ways of interpreting them, and to the presence of different fundamental norms, when, for example, the latter may have the character of moral principles, ideas about justice, legality, order, political and other life values and ideals. Thus, in a real society, legal life can manifest itself in the confrontation of various legal cultures associated with competing economic, social, political, religious and cultural traditions... Human rights is one of the subjects on which there is debate, demonstrating the noted opposition.
The phenomenon of pluralism requires a rethinking of ideas about the subject of legal life. Considering the question of who is the subject of law, let us pay attention to the considerations expressed in this regard by the famous modern philosopher P. Ricoeur. He identifies four types of subject: subject of speech, subject of action, subject of narration and subject of responsibility. The subject of speech or utterances is the unity of many different utterances, he is the one who is the author of a certain variety of judgments. The second type of subject is defined through a set of actions, actions in which he is aware. The third type of subject refers to who is the author of his life. The fourth subject is not only responsible for his speeches and actions, but also bears responsibility for the consequences of his actions. For law, the situation is especially important when the subject is responsible for his actions, which are detrimental to another. Emphasizing that the actual legal problematic arises when relations between subjects are mediated by a certain institution, in contrast, for example, from the situation of moral relations, which do not imply such mediation, P. Ricoeur shows that institutional relations with others arise not only at the level of the subject of responsibility , but already at the level of the subject of speech. Language practice is not limited to conversation, to the exchange of information. It is associated with the linguistic system, which has an institutional character, and is mediated by it. "Belonging to a certain linguistic space," notes P. Ricoeur, "is the first form in which we are subjects of law." A subject who identifies himself with a certain linguistic system declares his claims to the right to speak and write in his own language (in communication, in publications, in educational institutions, in official documents). The subject of an action is always one of the sides of an action as an interaction. In society, you can always act only in conjunction with someone or against someone. Such interaction can be mediated by institutional links. Through institutions (family, work collective, civil society, political institutions), a complex system of mutual recognition of the subjects of action is implemented. Further, considering the subject of the story, we find new order confessions are history. Each person's history is part of a larger story that we all belong to. Each person's story is intertwined with the stories of others. Therefore, history, as P. Ricoeur writes, is a "mediating narrative institution."
Finally, the fourth type of subject is determined by the ability to consider himself responsible for the actions committed and their consequences. For the sphere of legal life, it is essential that the given subject recognizes the need to pay for the committed misconduct, recognizes the need to compensate for the damage caused. This point of reasoning is extremely important. Its meaning lies in the fact that the subject of legal life can only be one who is the bearer of the attribute, which can be designated as legal responsibility. This refers to the following. As noted by Kant, law is essentially a form of recognition of free will, which consists, first of all, in the ability to choose lawful rather than criminal behavior, in a deliberate prohibition of illegal behavior. Although there may be individuals endowed with "evil will". They are characterized precisely by the deliberate use of the right given to society, the law for the commission of a crime. Another type of criminals is characterized by "normality", which is expressed in social insanity regarding the nature of their actions. This is possible both due to objective circumstances, when, for example, social conditions make it impossible to realize their own crimes, and due to subjective circumstances, when, say, an individual has an undeveloped "legal feeling" (L. Petrazhitsky), due to which he does not apply the criterion of legitimacy to assessing both his own actions and the actions of other people ... Individuals of this type cannot be considered as subjects of legal life, both in an individual and social sense. Therefore, the subjects of legal life can be only those human beings who are "legal", or, as H. Arendt noted, are able to distinguish between right and wrong even in those conditions when they can be guided only by their own judgment. It is of this type that subjects are able to build a series of legal relations with other people, they are able to exist in the public space of responsibility, in which there are grounds and justification for mutually related actions of people, that is, they are able to live a legal life.
For understanding the subject of legal life, one circumstance of a philosophical nature is important. It is associated with the idea of the subject not as something already given, present, but as a being that becomes such in the course of its life. Therefore, we agree with P. Ricoeur when he emphasizes that “one of the provisions of political and legal philosophy ... says that belonging to a certain legal and political system is not something external, added to the human essence, as if we already represent from self-completed human beings outside the state or public (public) space. No, the justification of law and politics is that it is through them that human abilities are realized. " A person lives a legal life not because it is provided to him by someone from the outside, but because he himself builds it as a form of objectification of his subjective ideas about imputed being, existence. And such objectification takes on various institutional forms: traditions, customs, habits, prejudices, rules.
We have already noted above that one of the grounds for raising such a question and developing the concept of legal life is the existence of a special status of human rights and freedoms. As G. Kelsen noted, “a norm can be the meaning of not only an act of will, but also an act of thinking as an idea. We can imagine a norm that, not being the meaning of an act of will, exists only in our thinking. Then it is not an established, not a positive norm. In other words, the norm does not have to be established, it can only be a mental assumption. " This kind of "not established" norms include, in particular, the rights and freedoms of the individual. They are formed in the minds of people as reasonable, rational requirements, "mental assumptions", as G. Kelsen writes, expressing fundamental claims related to the interests and needs of human existence in society. Historically, the "natural" rights and freedoms of the individual were formed as restrictions on the power of the state in relation to the individual. It is characteristic that the Bill of Rights of 1791 "was mixed up with the idea of distrust in the minds of Americans in the minds of state power, which is organically inherent in the desire for arbitrariness and violation of the rights of those under control." Human rights and freedoms by their nature are values that orient a person towards the development of his active forces (material and spiritual), creative initiative, autonomy and responsibility of his own individual being. The "natural" rights reflect moral principles, ideas about freedom, justice, dignity and happiness, which cannot be a "gift" of the state. The relative independence of the genesis and existence of subjective rights from objective law allows us to talk about the irreducibility of legal life to the functioning of official law in society. “The goal of natural law doctrine,” as E.A. Lukashev, - to limit the claims of the state at its discretion to determine the scope of human rights and freedoms, regardless of the set of rights necessary for the normal life of an individual that are objectively inherent in him from birth. " The opposition of subjective and objective law can be mitigated, or even allowed, if the state assumes the protection and enforcement of these rights, formalized by law in the constitution. Thus, the existence of individual rights and freedoms, even at the level of subjective claims, is the third circumstance that forces us to turn to the category of legal life.
Above, we tried to show some philosophical foundations by virtue of which it is justified to single out the sphere of legal life as specific and not reducible to official institutional legal forms. Further, we would like to draw attention to the specifics of the methodological approaches required for the study of legal life.
Methodological approaches traditional for analytical jurisprudence are largely based on the classical type of rationality, which originates in the worldview and methodology of the classical era. Regarding the understanding of the essence of reality, including social, the methods of its cognition, the means and forms of human existence in the world, the worldview of the classical era had quite definite guidelines and beliefs that determine the so-called classical type of rationality. Another type of rationality - non-classical - began to form in the 19th century, but received a detailed development and justification in the 20th century. He was a reflection of the new realities of spiritual and social life, characteristic of the modern era. In our opinion, it is the non-classical type of rationality that corresponds to the specific nature of the phenomenon of legal life.
The classical type of rationality is based on the belief in the existence of reality in itself, which as such must be understood outside the context of human relations to it. A person can orient himself in the world only by joining the objective existence of the world. This paradigm was formed in antiquity, but still it is one of the fundamental determinants of human thinking about the world and about oneself. The classical type of rationality has a number of basic concepts, among which we note the following: the autonomy of the subject, the monologism of thinking (driving within the opposition "domination - submission"), the interpretation of knowledge as an idea, the belief in the uniqueness of truth, fundamentalism and objectivism. These values are appropriately implemented by the well-known classical concepts of law: normative and natural law. Within the framework of the classical type of rationality, the subject of knowledge and activity is thought of as existing outside the object of knowledge and the subject of action. Indeed, the natural-legal doctrine focuses on the ontological status of law, considering it as an objective reality, which, according to Aristotle, operates regardless of whether a person knows about its existence or not. The normative concept proceeds from the recognition of the external character of the subject-legislator in relation to reality, which is the object of legal regulation. Both concepts are characterized by an understanding of the adequacy of the subject and its knowledge (like a mirror). The natural-legal concept asserts the existence of a true, unique and objective law, which must be adequately reflected in the laws established by people. The normative concept proceeds from the belief that the real practice of legal relations between people in society can be adequate to the content of legal laws. In other words, using the words of Spinoza, the order of ideas can correspond to the order of things. Both concepts express the fundamental premise of classical thinking about the existence of an ideal law, a perfect law, the implementation of which in real life can solve almost all problems. This kind of total "juridism" (by analogy with the term "scientism") understands law, law as a universal tool, a means of solving all social, political and economic problems of society. The phenomenon of legal life imposes significant restrictions on such ideological claims.
On the contrary, the non-classical type of rationality proceeds from the belief that the world can only be given in the forms of human subjectivity (sensibility, consciousness, practice, language, etc.). Outside of the context of a person's relationship to the world, no judgments about the world are meaningful. Thus, the non-classical type of rationality is characterized by the recognition of the indissoluble unity of subject and object. The knowledge about the object contains non-eliminated aspects of the subjective attitude to reality, associated with the methods of cognition, with the ideals and norms of cognitive and practical activity, with the subject's goals. With regard to the sphere of law, this means that the subject of knowledge of law is not separated from the sphere of law as from something external to him, but belongs to this sphere entirely. In other words, the subject of knowledge of law is itself an agent of legal life. Therefore, his ideas about legal life are conditioned by this very life. Here the question of the objectivity of knowledge arises with particular urgency, that is, the question of the possibility of knowing law as it exists “as such”, in its own essence. From the point of view of non-classical rationality, such intentions do not have sufficient grounds. And therefore this or that idea of law will be an expression of a certain interpretation of legal life, conditioned by the position of the “observer” himself, the subject of cognition, and not by some kind of detached objectivist view of life. Legal life is cognized by life itself, that is, it is cognized hermeneutically. Taking this point of view, we must admit the "opacity" of legal life for the subjects who implement it in practice. That is, there are hidden uncontrolled mechanisms in it that produce the very legal matter of life. This, in turn, leads to the fact that we must understand law not as a set of norms preset to us, not as a kind of regulation of behavior in certain circumstances, invented by someone, proceeding from the arguments of reason, realizing expediency certain actions... The understanding of law cannot be limited by the formula: “law is a measure of freedom” (in accordance with the ideas of Kant and Hegel). In our opinion, in the context of a non-classical type of rationality, within which the phenomenon of legal life makes sense, this understanding of law requires, perhaps, a broader interpretation of it as an institutionalized (or mediated by institutions) form of recognizing the subjective nature of the life of each individual in society. After all, only law, unlike, say, morality or politics, provides such recognition.
The concept of legal life, in our opinion, is close to the concept of "life world" introduced into philosophy by E. Husserl. The "world of life" was considered by Husserl as the "founding" layer of human experience, serving as the initial soil of all theoretical and practical activity. Likewise, legal life is an unreflected layer of human experience, immanently containing legal phenomena, "underlying" theoretically meaningful, legally formalized structures. In legal science, the process of cognition is separated from the primary intuitive sources of law, rooted in the "life world". Legal life as a semblance of Husserl's "life world" is not reduced to subjective representations of consciousness. It has its own type of objectivity and its own stable structures. Legal life consists of a set of prejudicial normative forms of behavior, experience, assessment and statements regarding acts (actions) from the point of view of their compliance (or non-compliance) with what is due. At the same time, in contrast to the system of moral assessments and forms of behavior, legal forms of life are necessarily associated with the idea of harm that can be inflicted on any other person.
Prejudicial forms of legal life are formed spontaneously in the process of real life of people. They are reflected in legal customs, traditions, prejudices, presumptions, which may not have a strict legal form. But they regulate the daily life of people associated with relationships between people, which imply the possibility of harming at least one of the sides of these relationships.
The category "legal life of society" covers all types of legal life, the very process of legal awareness of social reality, all legal activities of state legal institutions. In addition to the dominant legal ideology, the concept of "legal life of society" also includes non-dominant legal ideology, legal psychology, legal traditions and habits, law-making, legal education etc. The activity of state legal institutions, despite the fact that it is of a material and practical nature, is included in the legal life of society because it passes through legal consciousness. But legal life is an integral part and a special kind of social life, for law is a social institution adapted to the peculiarities of the life of a particular people.
Sourse of information:Material provided by the editors of the Scientific and analytical journal "New Legal Thought". ()
Introduction
Chapter 1. Essential features of an individual legal life
1. The concept of individual legal life 15
2. Objective forms of human existence in the legal sphere 29
3. Basic properties of individual legal life 44
4. Individual legal life in the system of social forms
human life 58
Chapter 2. Forms of individual legal life
1. Individual legal life in an ideal form 72
2. Forms of real individual legal life 88
Chapter 3. Conditions and results of real individual legal life
1. Legal personality traits 111
2. Individual legal culture 122
3. Individual law 138
Conclusion 152
List of used literature 157
Introduction to work
Relevance of the research topic. Modern societies are highly dynamic, the changes taking place in the economic, scientific and technical, political, legal and even in the ideological and moral spheres occur very quickly and are of a qualitative nature. In these conditions, objectively, the focus of attention from the formation of modern regulatory framework, the improvement of the regulatory system of law, the content of requirements and the rules of lawful behavior is transferred to the very legal practice, both in its mass and in individualized terms. The problems of legal life from the point of view of its content and prospects acquire special relevance. In addition, the activation of the legal component in social organization Russian society is associated with the formation of the rule of law, with the implementation of judicial and legal administrative reform and a number of other important processes.
In the Address of the President of the Russian Federation The Federal Assembly of November 12, 2009, the guidelines of legal policy aimed at improving the quality of human life are highlighted. It draws special attention of civil servants and the general public to the inextricable interconnection of the level of culture of the population as a whole, its activity, and character legal activity individuals in the sphere of realizing their needs and interests: “It is obvious that the implementation of our strategic plans is impossible without full-fledged changes in society. Strengthening the political system and legal institutions, internal and external security of the state, social stability, modern education and culture (culture in the broadest sense of the word) - without all this we will not achieve success. The end result of our joint actions will be a qualitative change not only in the standard of living of the citizens of our country. We must change ourselves. It is necessary to overcome the widespread notion that all existing problems should be solved by the state or someone else, but not each of us in his place. Personal success, encouragement of initiative, improvement of the quality of public discussion, intolerance of corruption should become a part of our national culture, namely, a part of the national culture ”1.
The very concept of "legal life" until recently remained practically unexplored. And although the term "legal life" ("legal life") can sometimes be found in the literature of the XIX century, nevertheless, it was used and is used without the necessary scientific explanation of its nature, features, structure.
The development of the concept of legal life allows us to look at law from a new angle, to consider legal phenomena in the unity of various aspects of public life - institutional (static) and behavioral (dynamic); to understand the law, first of all, as one of the most important social regulators, which must be “effectively used in many life situations.
The appeal to the concept of legal life brings variety to the process of cognition of law, gives it a complex nature, allows you to cover the entire spectrum of initial and derivative, static and dynamic legal phenomena, to consider them in the system. Analysis of legal life makes it possible to better understand law in the unity of the formal and substantive sides, to show the processes of the emergence, development, disappearance of legal forms in parallel with legal life itself. It makes it possible to overcome the idea of the unidirectionality of the right to achieve the result (legal goal) enshrined in the norm and turn to the process of the legal form's response to the constantly changing conditions of the social environment.
Recognition of the fact of an individual's independent legal life allows a much broader consideration of legal reality; it gives a certain integrity to legal reality. But at the same time, this fact requires going beyond the established traditional concepts 1 Russian newspaper of November 12, 2009
0 law, its essence, functions, structure and functions of legal consciousness, other, equally important issues are also affected legal organization public relations. The complex of problems associated with the individual legal life of a person is not only interesting in itself, but should also be understood as an indispensable condition under which the concept of law significantly expands and becomes more adequate to modern reality.
The issues of improving the level and quality of individual legal life in Russian society are, first of all, problems domestic policy the state. Legal policy is designed to act as a certain way of organizing legal reality, a means of streamlining it. As noted by N.N. Alekseev, “the knowledge of the ways ... of spiritualization of legal life is the task of legal tactics or legal policy, that is, the art of realizing values "1. Legal policy focuses individual interests and needs, it is able to influence fate and lifestyle, as well as form a possible environment for the realization of human potential.
Consideration of individual legal life, highlighting its forms brings understanding of the whole complex of problems related to human rights to a new level. It has already become a recognized fact that only if the independence of the individual is really significant for society, then the formation and strengthening of civil society is possible. Legal reality itself should be understood as the expression and realization of people's interests.
And this gives additional relevance to the research of problems directly related to the individual existence of people, within the framework of which the formation of their rights takes place.
The degree of scientific elaboration of the topic. Despite its relevance, the problem of legal life in modern jurisprudence is one of the least studied, and the consideration of such a form as an individual Foundations of the philosophy of law. SPb., 1998. S. 205. legal life, practically is not yet a subject of scientific interest.
In general, the study of the problems of legal life modern Russia is one of the new and very promising areas of development of domestic legal science. But at the moment we can talk about legal life only in terms of posing a problem, because for its solution it is still necessary to go through a considerable research path.
The most general characteristic of legal life became the subject of research, primarily for S.S. Alekseeva, V.M. Baranova, P.P. Baranova, Yu. Yu. Vetyutnev, A.I. Demidova, V.P. Kazimirchuk, V.P. Malakhova, A.V. Malko, M.N. Marchenko, N.I. Matuzova, I. D. Nevvazhaya, A.P. Semitko, Yu.A. Tikhomirova, V.V. Trofimova, V.I. Chervonyuk, V. Ya. Shiyanov and other scientists 1. Their works helped the author to penetrate deeper into the chosen topic.
The selection in the course of the study of the ideal sphere of individual legal life predetermined the appeal to works on philosophy and general psychology. The development of these issues at the general theoretical level was carried out, in particular, by B.G. Ananiev, V.G. Aseev, V.M. Bekhterev, A.N. Leont'ev, G. Rikkert and others. The greatest value for general theoretical analysis in this area is represented by scientific works of pre-revolutionary 1 See, for example: VM Baranov. Shadow law. N. Novgorod, 2000; Demidov A.I. Political and legal life: non-normative aspect // Legal policy and legal life. 2002. No. 3; E.A. Kuzmina State and personality as subjects of legal life // Legal policy and legal life. 2007. No. 3; V.P. Malakhov Philosophy of law. Ideas and assumptions. M., 2008; Malko A.V. Political and Legal Life of Russia: Actual Problems. M., 2000; he is. Category "legal life": problems of formation // State and Law. 2001. No. 5; Matuzov N.I. Legal life and legal system // Fundamental research in the field humanities... Yekaterinburg, 2003; Nevvazhai I.D. New interpretation of the idea of "legal life" // Philosophy of law in Russia: theoretical principles and moral foundations. Materials of the international scientific conference, St. Petersburg, 2007; Political and legal life of a modernizing society. Penza, 2002; Legal life in modern Russia: theoretical and methodological aspect. Saratov, 2005; V.P. Reutov Legal life, legal system, legal practice: correlation problems // Legal science, practice and prospects for their development. Collection of scientific papers. Perm, 2005; Trofimov V.V. On the methodological potential of the categories "legal life" and "legal system" // Legal policy and legal life. 2006. No. 2; Shiyanov V.A. Legal life as a basis for the development and functioning of the legal system of society // Law and Education. 2008. No. 5 and other lucational scientists - N.N. Alekseeva, G.V. F. Hegel, N.A. Gredeskula, R. Ieringa, I.A. Ilyina, B.A. Kistyakovsky, K. Kulchar, I.V. Mikhailovsky, P.A. Sorokina, E.V. Spektorsky, E. Ehrlich and others.
Addressing the problems of individual legal culture and obtaining certain scientific results in this regard became possible on condition of relying on the works of such scientists as E.V. Agranovskaya, R.S. Bay-niyazov, P.P. Baranov, N.N. Dunaeva, G.V. Maltsev, G.I. Muromtsev, V.P. Salnikov, M.B. Smolensky and others.
The object of the dissertation research is the legal life of society as a reflection of the action of law, its functional manifestations.
The subject of the research is the peculiarities of individual legal life in its content and structural certainty, the variety of forms of manifestation and objectification.
The main goal in theoretical terms is the establishment of the forms and elements of individual legal life, revealing its essential and substantive characteristics, and in practical terms, it is the determination of the main ways of developing the legal activity of an individual, her legal qualities, culture and body of rights.
To achieve these goals, it is necessary to solve the following tasks: determine the most effective methodology for the study of legal life; to highlight the signs and essential features of an individual legal life; determine the place of individual legal life in the system of other forms of human social life; highlight the main forms of individual legal life and their organic connection; to determine the content of each of the forms of individual legal life and its place in its structure; to reveal the complexity and inconsistency of individual legal life in modern Russian society; determine the basic social and personal conditions of individual legal life; to determine the ways of development of the culture of individual legal life in modern Russian society; to identify means of increasing the legal activity of an individual in the implementation of the totality of his rights and freedoms in modern society.
The solution of the set tasks determined the choice of the research methodology. The objective need to form a new understanding of the meaning and significance of law in the life of modern Russian society requires a reassessment of methodological resources, the involvement of different methodological approaches, and the renewal of the research arsenal. In this regard, in the process of implementing the task of studying legal life, not only the traditional and general methods cognition - formal-logical, dialectical, sociological, systemic, modeling, comparative jurisprudence, - but also methods that are relatively new precisely for legal theory, methods to take into account the multifaceted nature of legal life. This means, first of all, the axiological methodology, which makes it possible to reveal the value-motivational component of the individual legal life. The loss of connection with values would mean the impossibility of effective individual-personal cognition, since the individual can become essential and acquire a certain meaning only from the point of view of some value.
In addition, an important cognitive task can be solved by a culturological methodology that describes legal reality as a result of a complex and lengthy selection of social and individual legal experience. Individual legal awareness and legal culture are also associated with manifestations of the legal activity of the individual.
Finally, the problem of individual legal life requires the implementation of the possibilities inherent in the anthropological methodology, which presupposes the reflection of the entire set of issues in the aspect of individual social characteristics (qualities, activity orientation) of a person.
The study also used individual elements synergetic (where it is necessary to refer to the characteristics of individual legal life as complex, but insufficiently systemic), phenomenological methodology (when the nature and content of individual legal consciousness are subjected to theoretical analysis).
The theoretical basis of the dissertation research was the work of scientists in the field of jurisprudence, philosophy of law, psychology, general sociology and sociology of law. At the same time, along with the works of modern domestic and foreign authors, the works of domestic and foreign scientists of the pre-revolutionary period in the field of general theory of law were used.
In the domestic legal science, the dissertation is one of the first monographic works devoted to the study of the phenomenon of legal life in its individual form. Scientific novelty is represented by the following research elements, conclusions and provisions: understanding of the real legal life of a person as the unity of its ideal and real forms; the position according to which the essence of individual legal life is reflected precisely in its ideal component, in the internal spiritual work on the development, interpretation and formation of legal convictions, value orientations and claims; the establishment of the properties of an individual legal space and time as, on the one hand, determined by the interaction of people, the entry of an individual into social relations, and, on the other hand, by the abilities, qualities of the subject of legal life itself; understanding the claims of the individual as a deep basis for the reproduction of the legal foundations of society and his rights; substantiation of the thesis that the content and significance of individual legal life is due to its much less consistency, co-education with circumstances and situations, in contrast to public legal life, for which internal consistency is much more important; the provision that in real individual legal life, objective conditions and factors are secondary in comparison with subjective factors expressed in the ideal legal life of a person; the provision on the primacy of substantive criteria for legal behavior in its characterization as a form and process of individual legal life; the conclusion that legal relations in the context of considering individual legal life act not only as law-implementing, but also as law-forming; consideration of legal qualities, legal culture and individual law as conditions and results of individual legal life; the conclusion that the nature of the individual legal culture is directly dependent on the degree of success of the individual legal life; the conclusion that the main way to increase the level of public legal culture is the all-round promotion of a high-quality, active individual legal life on the part of society, the state; understanding of individual law as the unity of human rights, forms of lawful behavior and the ability to self-restraint on the basis of existing norms and rules.
The following provisions are submitted to the defense:
Individual legal life is a continuous process of exchange of claims, giving rise to mutual rights and people's commitments;
Individual legal space only on the one hand it is determined by the interaction of people. On the other hand, it is determined by the abilities, qualities of the very subject of legal life; its activity and the formed volume of claims serve as the deepest basis for the reproduction of the legal foundations of society and the rights of the person himself;
If public legal life is mainly subordinate to laws and depends on the prevailing conditions and factors, then individual legal life is much more situational and requires significant human activity, which, on the one hand, makes the legal life of society more diverse and dynamic, and, on the other hand, introduces an element of uncertainty into it and creates social and legal tension, which gives an additional impetus to the development of means of normative legal regulation;
In his legal life, in contrast to life in other social forms, the individual appears as an active, single, functioning in reality subject; he appears as self-determining in legal reality, identifying himself in a legal relation with society, with other people on the basis of limiting his interests 1 to the interests of others and determining his interest as independently significant;
The essence of the course of an individual legal life in ideal forms consists not only and not so much in the reflection of actual legal relations and processes and simple adherence to legal requirements, but in a kind of spiritual opposition to legal reality, which, on the one hand, allows one to be critical of the influences from society, but on the other hand, it stimulates the development of the personality, improves its legal qualities;
Incentives and restrictions are elements of the sphere of law in which individual legal life is synthesized in ideal and real forms. They concentrate in themselves the readiness of the individual to realize his value orientations and attitudes in right-meaning activities;
In the system of forms of real individual legal life, behavior appears as a dynamic component, legal relations - as a unity of manifestations of internal activity and existing normative incarnations, and procedure - as an external form of objectification of behavior. In their unity, they reflect the essence of individual legal life in its reality;
In the process of socialization, a person's abilities for legal life are laid, however, the legal qualities themselves are directly formed and developed only in an active individual legal life. The degree of legal development of a person also depends on the degree of importance for society of individual legal life;
As a condition, the legal culture of an individual characterizes an individual legal life from the point of view of stability, reliability, independence, and as a consequence of an individual legal life - from the point of view of the experience of implementing legal qualities in combination with claims;
10. Individual law in its content is qualitatively determined by the volume of acquired rights. Their reality is directly dependent on the activity of a person, the strength of his legal qualities.
The theoretical significance of the thesis. The conclusions and generalizations made by the author can contribute to the development of the sections legal theory directly related to the problems of increasing the effectiveness of legal means of organizing public life, the development of mechanisms for the implementation of human rights, with the development of the theory of the rule of law and civil society. The study made it possible to reveal the essence and significance of individual legal life, to determine the specific forms of its manifestation in social practice. Research based on relatively new methodological approaches, in addition to specific results, reveals a number of promising areas of scientific research of such an essential element of the legal life of society as the legal life of individuals.
The use of the results obtained in the development of relevant problems in the framework of industry sciences, it seems, will allow us to reach a new level of solving issues related to the improvement of current law and enrichment of the content of public legal life, improvement of the practice of ensuring and protecting the rights of citizens.
One of the indicators of the qualitative development of an individual legal life is the legal activity of an individual. It is in this aspect that the problem posed is most relevant from a practical point of view. The practical significance of the work is determined by the fact that the results obtained in the course of the dissertation research can be used to improve the law-making process, mechanisms and means of legal stimulation of citizens' behavior.
The proposed solutions are important for the widest range of problems of a socio-political and ideological-moral nature.
Of particular practical importance is the development of problems of developing the legal qualities of an individual, developing his legal culture and, most importantly, creating opportunities for integrating legal requirements, norms and rules into the internal impulses of individual legal life, transforming them into elements of individual law. All these issues are directly related to the implementation of constitutional guidelines for building a state governed by the rule of law and ensuring a dignified existence for members of society.
The materials of the dissertation can be used in the study of the courses "Theory of State and Law", " Actual problems theory of state and law "," Constitutional law"," Theory of human rights ", etc., as well as in the development of educational and teaching aids for the listed courses.
The results of the dissertation research have been tested for a number of years in higher educational institutions of the Ministry of Internal Affairs of Russia and in the professional qualifications law enforcement officers. The main provisions and conclusions of the study were reflected in the articles published by the author, they were discussed at scientific and practical conferences and methodological seminars.
The structure of the thesis is determined by the purpose and logic of the research. The work consists of an introduction, three chapters, uniting nine paragraphs, conclusion and bibliography.
The concept of individual legal life
Developing the concept of individual legal life, it is necessary to find out what understanding of both life and law most adequately reflects this form social life of a person.
Life in the exact sense of the word is, first of all, a form of existence of organisms that are open self-organizing systems, which are characterized by metabolic processes of substances, active regulation of their composition and functions, adaptability to the environment and other, more specific properties. But when we talk about a person, it is important to take into account the fact that his life is characterized by the presence of not only biological, but also social and spiritual components. As applied to a person, the concept of life has several meanings: it is both a set of phenomena occurring in the body, and the physiological existence of a person (as well as of all living things), and the time of such existence from its inception to the end, as well as in any of its periods, and human activity in certain spheres or aspects of society (social, spiritual, family life), and reality (for example, you can enforce a law, implement it), and social "revitalization", the manifestation of efforts, and creativity, etc.
In the general social context, various forms of life are distinguished: financial and economic, spiritual and scientific, family and household, religious and moral, state and political, etc. So, V.O. Klyuchevsky noted that “the nature of the country directs economic life; the physical nature of a person ties up and directs private, domestic life; personality is a creative force in mental and moral life, and society creates political and social life. " At the same time, the indissolubility of the subject and the object, the desire to express internal activity, spontaneity, the subject's ability to self-organization and self-development, the presence of many things in the world of a person that does not fit into the limits of rationality, but guessed by intuition, psyche, fixed by culture - all these ideas were formed in line with this called "philosophy of life." Back in 1920, the most prominent representative of neo-Kantianism, G. Rickert, wrote: “I think that the most widespread philosophical aspirations of our time that deserve serious consideration can best be summed up under the concept of philosophy of life ... time to point to the philosophy of life as a necessary task, the solution of which, however, should give more than the philosophy of life alone. "
The appeal to the category of legal life expresses the desire to use mental structures capable of reflecting, first of all, non-institutional and hidden from direct perception forms of regulation social relations and social activities 3. A number of representatives of modern domestic jurisprudence understand the legal life of society as a form of social life, expressed mainly in legal acts and legal relations, characterizing the specifics and level of legal development of a given society, the attitude of subjects to law and the degree of satisfaction of their interests. At one time, the classic of Russian jurisprudence I.V. Mikhailovsky emphasized: "Legal life is only part of a broader concept - social life"
Social (public) life is a society in motion (functioning, change), it is a constant process of production and reproduction of social relations between people on a normative-value-based and active basis1. From this it logically follows the conclusion that in this case legal life, as a form of social life, is a process of formation and reproduction of legal relations. The specific fabric of the legal side of the life of society is formed by legal acts (facts) and legal relations, which are one of the most important types of social acts and connections.
The possibility of the existence of legal life as a special kind of social life follows from the essence of law as a social institution adapted to the peculiarities of the life of a particular people. “The essence and content of law are determined not only by the economic structure of a given society, but also by politics, morality, legal consciousness, science, culture, religion and all other realities of social life, the achieved level of civilization ... The law that exists in real life must be considered taking into account concretization of its state-volitional, normative and power-regulatory characteristics in relation to a certain stage of historical development and to the peculiarities of a particular country "
Objective forms of human existence in the legal sphere
Exchange processes, as an expression of the nature of individual legal life, are carried out depending on many factors, both subjective and objective. The factors of an objective order primarily include the universal forms of human existence, within which an individual legal life proceeds. Namely - we are talking about the space and time of a given form of life of an individual person.
The legal space can be considered as a system of value coordinates, which allows us to talk about its influence on the legal socialization of the individual. According to P.A. Sorokin, “to determine the position of a person or any social phenomenon in social space means to determine his attitude to other people and other social phenomena, taken as such“ points of reference ””. In society, a person always stands face to face with another person. Another person at the same time limits the manifestations of freedom of each individual person, and creates in her a stable need for self-realization and social self-affirmation. Interaction with others reveals and brings to the surface the inner qualities of a person and constitutes a specific space of coexistence. The principle of the spatial dependence of the individual on the environment is an essential component of the mechanism of legal socialization. This space of coexistence is the living space of the individual, one of the most important forms of which is precisely the individual legal space.
In general, social space (a kind of which is legal space), in contrast to physical space, has one essential feature - it is formed as a result of the interaction of not physical bodies, but social bodies, in other words, from acts of communication, or acts of transferring information through special material carriers or signals. The transfer of information is a typical process in the field of social phenomena. For example, the whole process of creating social norms, their assimilation, observance and implementation by people takes place in the form of interaction. Information about the norms of behavior, about the system of values, about the practice of social relations form the worldview, psychology, and the entire inner image of a person.
A person is the most important and direct participant in any legal relationship, as a way of interaction in social space. Therefore, it is so important to turn to the study of the legal space, which, like a shell, is associated with a person. The famous Russian lawyer P.I. Novgorodtsev wrote: “We know a person who is not isolated and detached, but who lives in society, completing his life path in it, and therefore a double manifestation of personality is inevitable: individual and social ... Personality and society do not represent some self-sufficient and opposing substances to each other; they grow from one root and strive for one light. " Without recognizing the independence and significance of individual legal spaces, it is impossible to truly substantiate the real significance of human rights for society and the current conditions of its existence.
The place of individual legal spaces in the system of public legal space is different depending on what importance is attached in a particular state, within the framework of a particular legal culture, to human rights. For example, for European society, the problem of human rights is traditionally relevant and important, while for Russian society this problem is just beginning to move from the field of theory and political programs to a practical plane. “If up to the middle. XX century, they argued that everything related to human rights is exclusively the internal competence of each state, but now it is widely recognized that the degree of observance and respect for human rights in the international arena determines the degree of trust in the state. " A person is recognized as an ability and a social obligation is imposed on him not only to fulfill, but also to create norms, not only to obey them, but also to make independent decisions3. The state should refrain from excessive interference in certain areas, to which, within certain limits, of course, the individual life of people also belongs, providing a certain scope for individual human activity. For modern Russia, these aspects of the development of law are extremely important; their implementation directly leads to the practice of forming the rule of law.
Individual legal life in perfect shape
The concept of legal life is included in the totality (system) of concepts designed to describe and characterize reality from the point of view of its constituent processes. Naturally, it is required to be very clear about what is meant by reality in the context of the concept under consideration.
In general, reality is understood as what, firstly, exists objectively and is capable of existing regardless of whether this existence is realized or not. Secondly, it is something that does not exist in possibility, but in actualization (in reality, in the present tense). Finally, thirdly, reality is that which lends itself to perception, and this perception arises both in the sphere of material relations and activities, and in the sphere of social and spiritual communication. Thus, only on the one hand, we distinguish between reality and ought (as something that is still only a possibility, abstract or real, and as something that opposes it as its anticipation, assumption). When applied to legal life, including individual life, one should distinguish between reality existing in real and in ideal forms.
Human life in ideal forms, i.e. spiritual and mental processes are what distinguishes him from any other living being, including those living a collective life. That is why we begin to explore the forms of individual legal life from the ideal form. In this case, the form is understood, of course, the internal form, i.e. a way of organizing an individual legal life.
The ideal is, first of all, the human ability to reproduce reality in thinking, it is a reflection of the legal world in the forms of human consciousness and will, given to him by the previous development of society. The ideal always acts as a product of a purposeful transformation of social relations.
The legal life of an individual in an ideal form proceeds primarily in his legal consciousness. I.A. Ilyin rightly emphasized that “there is no person without legal consciousness, but there are many people with neglected, neglected, ugly or even feral legal consciousness. Legal consciousness, as a spiritual organ necessary for a person, participates in one way or another in his entire life, even when a person commits crimes, oppresses neighbors, betrays his homeland, etc., for weak, ugly, corrupt, slavish, criminal legal consciousness remains legal consciousness , although "its mental and spiritual structure turns out to be incorrect, and its content or motives are false or bad" 1.
Individual legal consciousness most often carries in itself the generic features of public legal consciousness, but it can also differ significantly from it. Individual consciousness by itself cannot embrace the entire totality of connections existing in society, highlight the main and essential. It is inevitably influenced by social consciousness, which differs from it in the depth of reflection of reality, in the scale of understanding events, in the wide scope of social phenomena, in the foresight of social processes.
The source of the development of an individual's legal consciousness is the entire sphere of social relations in which a person is included. Being within the framework of these relations, a person acquires knowledge about law in two ways: 1) as a result of observing the practice of creating, applying and implementing the norms of law; 2) in the process of assimilating knowledge about law, purposefully transferred to a person by various sources of legal information.
Legal consciousness is a direct perception of legal reality in sensory images or its indirect perception in mental constructions.
In the context of the problem of legal life, individual legal consciousness should interest us not from the point of view of its content or “products”, but from the point of view of the mechanisms of its action to reflect the reality of legal relations. For the individual sense of justice, it is characteristic that it is not reducible to the reflection of only the current law. By constituting in consciousness his legal space, a person thereby continuously structures himself not only as an active and conscious subject of legal relations, but also as a bearer (and exponent) of a specific legal understanding.
In his legal consciousness, an individual reflects social relations from the point of view of the need for their legal regulation. An example of this can be at least those proposals that come from citizens to state bodies, which substantiate the need for adopting new and changing existing regulatory legal acts.
Legal awareness is a set of ideas and feelings that express people's attitude to the current or desired law. Legal consciousness is not subject to mechanical division into its constituent elements; it is a single, integral system of ideas, views, attitudes, assessments, feelings that not only interact, but also complement each other. In addition, legal consciousness is not a frozen, but a dynamic system of elements, reflecting all the variety of forms of legal life.
Legal consciousness in the structure of the personality not only provides knowledge of legal reality, but also acquires the role of a source of activity, human activity - an important indicator of human individuality, in which the capabilities and qualities of a person are realized.
Legal personality traits
The question of the legal qualities of an individual is one of the main ones in the context of considering an individual legal life from the point of view of its results and conditions. Meanwhile, interest in the problem of the legal qualities of a person in legal theory is still insignificant, although for the development of theories of human rights, the study of this problem is very significant.
Most often, a person appears in theory in the context of the problem of compliance of his behavior with legal requirements and norms. And this can be achieved, in the opinion of both the majority of legal theorists and practicing lawyers, solely by improving the mechanisms of legal regulation, organizing a system of coercion or activating a set of ideological and educational means1.
The objective reason for the weak interest of domestic legal scholars in the problem of the legal qualities of an individual and the narrowness of its understanding is, in our opinion, the lack of a proper degree of development of those social conditions and circumstances in which the role of personality traits in legal life becomes really significant. We must agree with V.P. Malakhov, who argues that the Russian legal culture is richer, deeper, more organically connected with the moral and religious life of society than, for example, Western European culture, therefore the personal factor is actually more important in Russia than in the West2. However, the history of Russia has developed in such a way that the role of the individual and, accordingly; the importance of human rights has traditionally been belittled, completely subordinated to the interests of society and the state.
A very significant, if not the main, reason that the personal aspect has not yet been given due attention in legal theory, in our opinion, is the absence of a developed civil society in modern Russia. Until now, a historically established situation is being reproduced in Russia, when the state actually replaces all the institutions of civil society. This is not the place to discuss in detail the properties of civil society and the conditions under which it can exist in its true expression. Let us only note that in the conditions of underdevelopment and lack of independence of the institutions of civil society (first of all, the institution of property), the role of the individual naturally turns out to be insignificant; its independence and initiative are very limited, the range of socially significant and individually important decisions is small. Therefore, it is quite natural that so little attention is paid to the legal properties and qualities of a person: these properties cannot significantly affect the general state of mass legal relations, their potential is not in demand. regulatory system rights. Only under the condition that the state exists and develops within the framework of civil society1, when, therefore, a private interest, private life possess relative independence and real significance2 - only then the question of the individual as the bearer of a certain set of socially significant qualities of a legal nature becomes essential.
In the West, due to a more organic combination of individualistic attitudes and the formalism of law traditional for bourgeois society, the demand for personal characteristics of a person is insignificant, therefore the underdevelopment of the theory of legal personality traits is quite understandable and, in a certain sense, justified. In Russia, due to the deep cultural conflict between the formalism of legal law and public demand for the content of legal life, the exclusion of a person (in his individual manifestations) from lawmaking, from the exercise of his rights, the factual insignificance of these rights - all this, to a certain extent, negatively affects the effectiveness realization of the right.
By the legal life of society, we mean the quality and degree of use by citizens and their associations of laws and other normative legal acts in their personal and interpersonal practice.
If in a state-organized society people live happily and consciously perform actions in accordance with the laws and clearly understand the place, meaning and necessity of legal requirements, then we have before us a completely mature, civilized society. After all, modern society, unlike a tribe, a community is a ϶ᴛᴏ community strangers, and it is very important that the relationship between them be mediated by objectively necessary legal provisions, and these legal requirements themselves were guaranteed to be enforced. Moreover, as society develops along the ascending line, people are increasingly making demands both on the democratic essence of the legal rules of conduct established by the state, and on the quality of the guarantee that they will be observed by all.
At the same time, in our vast Russia, law and laws have never really been respected and have not pinned any serious hopes on these institutions of a civilized society. Even today, when Russia set its goal to build a rule-of-law state (Article 1 of the Constitution of the Russian Federation), declared the generally recognized principles and norms of international law an integral part of its legal system (Article 15 of the Constitution of the Russian Federation), when it became a member of the Council of Europe, hardly a significant part its population clearly represents what all ϶ᴛᴏ means. It is much easier for the Russians to explain and demand participation in the implementation of such global programs as the heating of gigantic virgin and fallow lands, the turn of the northern rivers in the opposite direction, rather than “charge” them for the construction of a rule-of-law state. Towards understanding the foundations of legal
states in Russia have sprouted such "weeds" that sometimes they just take doubts about our strengths and capabilities to overpower the germination of a "rule of law" here.
Historically, in Russia it has developed so that here less than in Western countries a legal feeling has been formed, that is, an understanding of the surrounding human world, social life itself through the prism of legal law. The traditional basis for such a situation will be greater preservation of communal, collectivist feelings and less legalization of public life.
With all this, today it becomes obvious that if someone wants to preserve these traditions in Russia, then, in our opinion, it is a futile idea. The legalization of public life in Russia is an objective need. It is worth noting that it comes as a factor in modern civilization, when unreasonable communal, collectivist ties are inevitably destroyed, people themselves choose a more cheerful, independent form of organization of their life. The fact that humanity is developing from a communal form of organization of its life to a modern, more individualized one is noticeable with the naked eye. Human society is increasingly transforming from a communal society into a society of strangers, where all around (in nurseries, kindergartens, schools, our children are raised by other people, often even strangers to us; medical, social and communal services are provided again by strangers, etc.) interpersonal relations are formalized, transferred to a legal basis. It is this need that is especially necessary in cases of various conflict situations that can be resolved only on a fair legal basis.
If Russia today is somewhere and is trying to resist such legalization, then ϶ᴛᴏ exclusively means that it is still lagging behind the civilized methods of regulating interpersonal relations and that such a position of it will not "last forever.
If one approaches the characterization of the legal life of society with such ideas, then only in modern Russia the problems of the legalization of public life become the subject of general curiosity and active study. The reasons for this, apparently, should be explained by the fact that the Russians, just like other peoples
of the civilized world, they began to think and came to understand the natural question: why in such a rich country as Russia, a normal life has not yet been organized?
Having comprehensively comprehended this issue, we came to the conclusion that for the successful organization of public life in Russia we have always lacked an understanding of not only the exceptional importance, but also the primary need for state and legal reforms. It was the state and legal reforms in Russia that were always delayed or not carried out at all. Even in the years of the most active social transformations, no attention was paid to the improvement of state and legal institutions. In Russia government has always been on its own. There has never been a developed civil society here.
As a result, Russia has always had an ugly, different from the advanced foreign countries, state-legal superstructure, in essence, far from the interests of the people, and helpless in the optimal solution of the tasks facing society.
The successful solution of all the tasks that Russia faces today, in our opinion, just rests on the problem of the correct placement of accents in state structure... Only an optimal state with its perfect system can successfully conduct economic policy, and after this and at the expense of it, decide social problems, as well as issues of the development of science, culture and art.
The logic of the modern Russian transitional state, as the world practice also testifies, is such that three most important problems simultaneously need to be consistently resolved here:
firstly, it is extremely important to firmly follow the path of creating an optimally functioning state-legal mechanism that meets the requirements of a democratic rule-of-law state;
secondly, with the help of the improving state, it is extremely important here to complete the conceived economic reforms and enter the tracks of a civilized market that is better able than before to meet the demands and needs of society in goods and services. Only by creating such a competitive and efficient economy will we be able to count on a full-fledged budget from here;
thirdly, to successfully resolve the social problems facing us.
I would like to emphasize that the problems facing Russia are faced precisely in this sequence. Material published on http: // site
In our opinion, this is a new vision of the system of social development, and until in Russia this scheme is comprehended at all levels, one can hardly expect serious success in creating a normal society.
Today, as never before, it becomes obvious that there is no other, acceptable alternative to the rule of law for the Russian Federation. Therefore, we must step by step go in the direction of the rule of law, gradually mastering and developing its institutions. Our state apparatus must adapt the methods of work, especially in the conditions of the formation of the rule of law.
Hence, such an important conclusion suggests itself, which leads to the fact that we must very seriously rethink our priorities in the social structure. The essence of his rethinking is that if, until now, the starting point in scientific understanding social development In Russia, the satisfaction of the needs for socio-economic developments was considered, and state and legal problems were not raised at all, today it should be recognized that the result of such thinking and behavior were failures in the implementation of countless socio-economic programs. Even though, perhaps, good, these numerous programs of socio-economic development were not implemented, since they were not aligned with the problems of state and legal reform of Russian society, not linked to the goals and objectives of the political power.
In other words, in Russia they have always tried, first of all, to solve social problems (to build more housing, roads, expand work on gasification, telephone installation, eliminate unemployment, raise wages for public sector employees, etc.), but the solution of these problems ultimately resisted into the economy, and the weak efficiency of the latter, its continuing decline, in turn, was dictated by inept state management, imperfect legislation, the creation of unnecessary prohibitions and obstacles in the way of the activities of entrepreneurs, landowners, etc.
Today it is becoming more and more obvious that it is also extremely important to study politics and state studies. State studies will also be the object of science, scientific developments, as well as economics, sociology, etc. If you build a house in violation of building codes, then such a house will not be stable and will fall apart. Like ϶ᴛᴏmu, state building should also be based on certain norms and rules developed by the entire world practice. At the same time, it is in the ϶ᴛᴏth area, that is, the use of scientifically verified, historically tested institutions of state-legal construction, that Russia lags far behind the advanced foreign countries. And, perhaps, few people here think about the fact that because of the ignorance of the norms and rules of state-legal construction, so rich in natural resources, Russia lives in semi-poverty, cannot properly organize its social life.
The fact that we are very far behind many foreign countries in the field of state and legal construction - ϶ᴛᴏ historical fact... But the main trouble is, in fact, that we do not want to ϶ᴛᴏ recognize and continue to assert that we have a special mentality, and we cannot so easily accept foreign experience. Moreover, ϶ᴛᴏ refers specifically to the state and legal sphere. After all, when we are going to buy any product of the industrial sector (TV, car, shoes, washing machine etc.), then we clearly give preference to the imported one. This is understandable: we have made sure from experience that imported manufactured goods are better, of higher quality, etc. But when it comes to such things as: democracy, separation of powers, human rights, the rule of law, etc. we want to remain with our ideas (not based on experience due to the fact that in Russia these institutions of state structure have never functioned) In Russia, even at the highest level, there is still no understanding that such concepts as democracy, human rights the rule of law cannot be Russian or American, they will be universal, evaluative. Therefore, no matter how much we try to resist the positive perception of these concepts, we and in Russia will still have to fit into the universal human content of these values. Moreover, the sooner the better. The level and quality of our life depends on him.
Note that, having theoretically rethought our ideas about the place and role of state and legal institutions in society, it is extremely important for us to move on to their practical reform.
First of all, we are talking about improving all parts of the state apparatus. Moreover, the improvement of the state apparatus is extremely important for us not only for the creation of a strong state, but also, first of all, for the formation of a capable civil society that can use the instruments of self-regulation, which has its own initiative for further development.
Improvement of the state legal mechanism, in our opinion, generally covers four circles of relations:
first, ϶ᴛᴏ continued improvement of the organ system government controlled bringing them into line with new tasks and functions facing society in modern conditions;
secondly, training and retraining of civil servants working in the bodies of the state apparatus, capable of realizing new powers arising from the changed circumstances of the present time;
thirdly, improving the methods of management activities used by the state apparatus, officials;
fourth, improving the moral atmosphere in the organs of the state apparatus.
These problems are acute precisely in the modern Russian Federation, when it is trying to acquire a new democratic statehood.
It is extremely important for us to continue thinking about the structural improvement of government bodies. We have not yet completely eliminated duplication in the activities of the state apparatus; with a careful approach, one can find an excessive number of officials, bureaucratization of the resolution of certain issues, etc.
The entire structure of the state apparatus, in the conditions of the formation of a democratic rule-of-law state with a developed market economy, should be subject to successful resolution
the main task of the state is to ensure the rights and freedom of their citizens. Accordingly, and with an emphasis on fulfilling the first main task of the state, the structure of the state apparatus should also be formed. We already set records in the number of ministries and departments back in Soviet times. At the same time, we were convinced that we cannot solve many problems only by quantity. It is necessary to focus more on professionalism in the state apparatus, on increasing the efficiency of civil servants.
We are unlikely to create an optimal state legal mechanism of the state if we do not take care of the training and retraining of civil servants. It should be said that a full-fledged institution of public service is just emerging in our country. We must fully keep in mind the further formation of the civil service system, the optimization of the status of the civil servant, the development of the guarantee of the implementation. Further lawmaking and our practical work in the 1st area should be carried out with an understanding of the need for a new state building, based on the achievements of legal science and modern legal culture.
Training and selection of personnel remains a serious problem. We are far from having mastered all the heights in training and retraining personnel for work in the state apparatus. It is extremely important for us to find modern forms of personnel training for the state apparatus, to organize and conduct monitoring of the state of affairs in the region.
In the selection of personnel, we still do not widely use tests, interviews, competitions to identify the professional qualities of applicants for the position of a civil servant.
On the way of improving the state-legal mechanism, then it is extremely important for us to completely rid ourselves of the stereotypes of the administrative-command system of management social processes... Our current civil service must master the technology of governance in a democratic society. This means that the methods of management, with the help of direct subordination of everyone and all to the state apparatus, are today replaced by the subordination of all (including the state apparatus itself).
ta) the law. The relationship between the state apparatus and the population today is entirely determined by legislation. Learning to work, observing the laws, respecting them is another necessary height, to the top of which, first of all, civil servants should climb, setting an example for the entire population. If within the state power, in the relations of officials among themselves, authoritarian methods still remain, then in the relations of the state apparatus with the population in a state governed by the rule of law, only democratic methods can be used, that is, state activity based on strict observance of laws.
For the optimal work of the state apparatus, increasing the authority of civil servants before the population, the moral atmosphere associated with the activities of officials remains very important. We also have many unresolved problems here.
Among them, the residual phenomena of the impermissible combination of public service with commercial activity, which was allowed during the period of initial privatization, have not yet been eliminated. It is extremely important for us to eliminate these shortcomings.
Honest service to society, high professionalism is the main quality of a civil servant of any level. It is also necessary to end cases of nepotism, community and corruption in the selection and placement of civil service personnel. Effective measures are needed everywhere to eradicate formal attitudes towards their official duties, abuse of official powers, and the use of official ties and opportunities for personal gain.
All that has been noted applies to all links of the state legal mechanism, to Russian state services at all levels, to services of the constituent entities of the Russian Federation, city and district levels. It is extremely important for all of us to improve ourselves and learn step by step to master civilized methods of state administration, to achieve respectful attitude of citizens to the activities of a civil servant.
On the way to building the rule of law, we need to further strengthen the effectiveness of the judiciary. The judiciary, with its objective and fair
solving emerging cases is a key indicator of the maturity of the state on the way to the rule of law. Forensic workers, if I may say so, the first to grow up to work in a state governed by the rule of law.
Our efforts to build a state governed by the rule of law will be almost useless if we fail to eradicate crime - the gross violations of human rights and human freedoms. Both street crime and corruption and others economic crimes- they all damage the image of the state. Hence the task of further strengthening the fight against crime, radical improvement of the activities of law enforcement agencies and, above all, internal affairs bodies.
In general, our research in the field of state and legal construction allows us to conclude that all the problems in Russia from time immemorial are associated with imperfection political power... So in today's Russia, the state power, uncontrolled by society, is clearly unable to cope with public administration functions. With all this, the scientific foundations of state studies remain unclaimed. Yes, and serious, fundamental scientific research in the field of state and legal construction today is not yet carried out in Russia.
It should be noted that especially ϶ᴛᴏ refers to the level of the constituent entities of the Russian Federation. Again, we do not have enough funds for the most important thing. Meanwhile, just connect great science to the ϶ᴛᴏth problem, scientific awareness of our failures in the ϶ᴛᴏth area will allow us to form optimal state and legal institutions.
Only on a scientific and legal basis can we optimize the interaction of government with the economy and social life... In Russia, however, almost always the state power, resisting its own improvement, tries to resolve either social or economic problems and traditionally successfully fails them. The richest country in the world continues to live in poverty only thanks to the inept organization of public life. We still do not want to understand that the first problem in a state-organized society is not the economy, but the economic policy of the state, which completely depends on the intellectual level of the authorities and the structural organization of the authorities themselves.
Even today, against the background of the tasks facing the Russian Federation in the field of reforming public life, the main problem remains the optimal connection of the institutions of state and law to these processes.
It should be noted that the role of jurisprudence is of particular importance.
Modern civilization is objectively related to the legal worldview. There was a time in history when a theological worldview prevailed in society, and its active carriers formed a special class. With the decrease in the influence of religious norms, order in society does not diminish: the place of religious norms is more and more taken by legal norms. With a decrease in the signs of communality, collegiality, confessionalism, the legalization of public relations increases and the legal worldview expands. There will be a legal class, which begins to play a leading place in society (for example, in the United States there are many times more theologians lawyers, and they play a leading role in public life) Lawyers become the main support for creating an optimal legal order in society (remember, again, the example from the United States, where the forty-third President of the United States was named based on the results of a multi-step legal process)
Based on the foregoing, we come to the conclusion that any normally developing society is trying to follow the path of forming a rule of law. This is an objective process and cannot be hindered.