Normative approach to understanding law. A modern approach to understanding law and its significance for practice When the rules of law appeared

People perceive the phenomenon of law in social life differently. The reason for this may be different approaches that explain the relationship between law and law. Each of them helps in legal understanding in its own way. Their differences are dictated by views and political situations. The most modern approaches include normative ones. It has two directions, but their essence is common - law has its own norm.

Essence, features, advantages of the normative approach to understanding law

If we briefly define this phenomenon, it turns out that the right established at the state level is the law that must be strictly fulfilled by the citizens of the country.

This definition is based on the concept of “norm”, that is, the mandatory implementation of certain laws by everyone. Adhering to the normative approach, it turns out that if a country has its own laws, then it is recognized as legal.

It is perceived negatively by legal scholars, since according to it, a legal norm automatically becomes the leading element of the entire legal system. According to the normative approach, law is defined as a set of rules that must be strictly followed. They are established and protected by the state and are aimed at regulating the behavior of citizens by all government structures. Including their forced implementation. Find out about ways to interpret legal norms.

But this approach does not give an idea of ​​the sources of law, whose will dictates the legal order: the whole society or the interests of only a certain social group. To clarify the operating procedure in the state, it is necessary to consider the goals, needs, social attitudes and aspirations that contributed to the establishment of this particular norm or law.

When did the rules of law appear?

When did the rules of law appear? This vision of law was clearly formulated by G. Kelsen in the 20th century. This Austrian lawyer believed that law should be studied separately from political, social, economic and other factors. He suggested that the legal system is a pyramid consisting of rules of law. Read about the main branches of Russian law.

At the peak of this structure is the basic norm, followed by lower norms. Each of them is supported by the legality of norms with stronger legal force. The base of the pyramid consists of individual acts. These are all kinds of agreements, orders and court decisions that comply with the basic state norm, in most cases constitutional.

With the normative approach, law is identified with legislation and, in fact, depends on government guidelines. Only those rules issued by the state are considered legal. The normative approach provides that any acts emanating from the state are norms, and all other documents are not legal. A legal act is recognized as the only and indisputable source of norms, which weakens the effect of other normative documents recognized as unauthorized. What is the subject of constitutional law will tell.

Jurisprudence in the public understanding is a complex and always modern issue. The approach to understanding law as a concept originated during the development of society. It has undergone changes along with the history of society and the state. For more than two thousand years, humanity has not come to a common point of view regarding the category of law. Many works of the world's most famous philosophers are devoted to this problem, which remains insoluble to this day. None of the huge number of definitions reveals the essence of this concept completely.

Understanding Law in Ancient Greece

With the beginning of slavery, the need arose to streamline the concept and related categories. Aristotle (“Politics”) and Plato (“State”) at one time addressed this topic. They were the first to try to systematize the knowledge accumulated in this area.

The modern approach to this is acute in today's Russia. The sharp change in the political system in the country has created confusion in the thoughts of representatives of the older generation. Young people were for some time released from the care of the state and deprived of the opportunity to build cause-and-effect relationships. All this led to the emergence of a vacuum and the reluctance of the population to understand the steps taken by the government in one direction or another. What are the features of the modern approach to understanding law is important to consider today. A comprehensive consideration of this issue has long ago acquired its relevance, including for the practical activities of lawyers.

How did law come about?

According to historians, the prerequisites are internal contradictions in society and the complication of relations between its representatives. Jurisprudence has a regulatory impact on society, promotes order, stability and legality. This happens as follows:

1. Law, as a result of the influence of world culture, contributes to the consolidation of spiritual values ​​in society.
2. It, as an effective educational tool, contributes to the formation of the need for positive behavior. This happens through the creation of laws and regulations.
3. Law acts as a means of control over representatives of society, imposing certain sanctions on violators of generally accepted norms.

The relevance of studying approaches to understanding law

The population of the country is protected by law from anyone who infringes on its freedoms, by imposing punishment on each violator. The essence of jurisprudence consists of the following factors:

• consolidation of justice;
• fight against arbitrariness.

It is natural that the words “right” and “justice” have the same root. Of course, in the current situation, insufficient respect for this category has become one of the socio-scientific problems that concern representatives of society. Legal culture cannot develop without the need of every citizen to comply with its norms, which determine his civic position and an individual modern approach to understanding the law. The relationship between law and socio-political gradations here is a fundamental factor, a certain basis for the formation and perception of legality.

Approaches to understanding modern law and their social significance

Over time, many positions regarding the position of society and the state have changed. Before modern approaches to understanding were established, the influences of different eras remained virtually unchanged. Although Antiquity and the Middle Ages, the era of capitalism and the period of active propagation of communist ideas left their mark on the formation of its definition.

The modern approach to understanding law is one or another manner of interpretation and interpretation of the term as such. It follows that jurisprudence is a subject of jurisprudence. The branch of knowledge defines the concept of law and its categories at each stage of social development. In addition to its scientific significance, the concept has a practical impact on the formation of the legal consciousness of citizens, lawmaking, and legal activity. This is a complex phenomenon. The legal perception of citizens depends on it. The concept is interpreted differently and manifests itself in different countries, under different socio-political systems.

What kind of law can there be?

The theory does not have a unified interpretation of the described concept. Only similar directions can be identified:

• law is a socially significant structural element of any society;
• it acts as a means of regulating behavior, determining order both in society as a whole and between individual citizens.

From a large number of definitions, we can highlight the following concepts that reveal the essence of the concept. The understanding of law can be natural legal, normative, moral and sociological.

Features of the natural law approach

If we consider modern approaches to understanding law separately, natural law occupies a separate position here. And this is not surprising. Positive law, known since ancient times, acts along with natural law. By the way, it is often called natural. Throughout its existence, humanity has tried to develop effective standards of behavior and thinking, defining them in mythology, religious context, morality, etc.

However, the state model represented a society with opposing polar interests, where the adopted legislative acts predominantly guaranteed the protection of the wealthy segments of the population. And only today, in the operating conditions, the positive and natural law approaches to understanding the concept are as close to each other as possible.

Specifics

The normative understanding of the concept implies considering it as a series of provisions from laws and that only formally separates the systemic norm and form. Here we can trace the features of the modern approach to understanding law and a number of shortcomings:

1. Narrow or narrowly normative understanding of law. This refers to the text of a document that has legal force.
2. The absence of the possibility of law influencing people's relationships.
3. Its definition is as a state instrument for achieving a goal.
4. Inability to adequately assess the compliance of government acts with the interests of citizens.
5. Unjustified reduction of the importance of the economic situation, social sentiments in the life of society and exaggeration of the role of lawmaking.
6. Lack of democracy.
7. Restriction of the rights and freedoms of citizens.

The listed shortcomings gave rise to the search for other types of understanding of law.

Sociological approach to understanding law

The essence of the sociological approach to understanding law is to consider the industry itself and its legal relations in action. Only in this case, according to famous sociologists, can it be called “living”. According to S. A. Muromtsev, law is understood as total legal relations. Adherents of this approach consider the concept as a certain social order. In addition, they consider laws to be part of the law and recognize the primacy of family ties, the interaction of property and power relations, which, in turn, historically predetermine the emergence of legal provisions.

Normative theory accuses adherents of the sociological approach of devaluing legitimate authority. As a positive grain of the sociological perception of law, a course towards studying its interaction with different parts of the structure of society and identifying the operation of legal mechanisms is noted.

An approach to understanding the rule of law in modern society

This concept divides laws into the following types:

• Legal. They are based on law. They reinforce what happened in society.
• Illegal. These are normative acts that have little connection with reality.

Modern general social approaches to understanding law, in particular, consist in stimulating the legislator to study what is happening in society and reflect this in the laws created, taking into account economic changes and social relations. At the same time, when applying this approach, it is difficult to distinguish what is legal from what is not. It is also not always possible to determine whether the relationship is legal in nature. In such a situation, the role of the court increases, since relations are built according to an agreement, the dominant role of which is emphasized. This is an American concept.

Moral approach to understanding law

Modern approaches to legal understanding and a general social approach to law in a moral context give the concept as a set of certain norms a meaningful characteristic. And considers it in the context of compliance with positive assessments. With this consideration, only fair norms have the right to exist. Those that meet the level of freedom of society. The point is that the object of evaluation here is not the concept itself, but only its principles.

Positive signs of the approach:

• law is considered only in the context of positive phenomena: democracy, freedom, etc.;
• The legislator is focused on the positive values ​​of the social order in his activities.

Among the negative ones: difficulty in distinguishing “right” from “wrong”. In addition, the question of the existence of the concept of outside the law is not considered.

A brief overview of all modern approaches to understanding law

Each of the approaches discussed above has its own advantages and disadvantages. From the point of view of each of them, law is not considered outside of norms, relationships and ideas. To one degree or another, signs of each approach to understanding the concept are present in any society. Which position will become dominant? Will it influence lawmaking and legal relations? Will he earn authority in society? All this depends on certain conditions. The efforts of scientists and the level of scientific development fade into the background here. First of all, the social situation, the degree of development of society and modern approaches to understanding law are taken into account. It is advisable to briefly characterize their advantages and disadvantages:

• The officially recognized approach to understanding the subject determines how the law develops in a particular society.
• Normative is adopted where society is subordinate to power. An example is a state with a totalitarian regime.
• The sociological approach “gives the green light” to the social order.
• relationships come to the fore. The state and society are loyal to each other. And as a result, the power is losing its position. An example is a state with decentralized government.
• With a moral approach, law is aimed at the ideas of equality and fraternity, freedom and justice. This happens in a society where morality and its ideas are valued, and there is a division of power. This is a democratic country.

To understand what are the features of the modern approach to understanding law in our state today, it is worth turning to the recent state of the legal system in Russia. It has been under the radar of the normative understanding of law for quite some time. The moral and sociological approaches appeared only in some elements.

How is the correct approach to understanding law being formed in Russia?

The modern social order must include the concept of a moral understanding of law. From this perspective, jurisprudence is seen as a regulator of behavior in society. It is able to measure the level of responsibility and freedom of citizens. It is extremely important to take into account the timeliness of legal education. In many developed countries, the process of establishing the legal independence of citizens begins from an early age. Future full-fledged representatives of society must have a reliable objective idea of ​​what legality, right, responsibility, etc. are.

Today's educational system in Russia, in accordance with the Federal State Educational Standard for secondary education, implies the introduction into the educational process of disciplines that actively influence the formation of citizenship and understanding of jurisprudence among schoolchildren. The development of the lesson “Modern approaches to understanding law” is an important element of the learning process. Its tasks can be called:

• Familiarization with the variety of approaches to understanding law, the concept of “human rights”.
• Demonstrating the differences, advantages and disadvantages between each approach.
• Help in understanding positive law through the value of inalienable rights.
• Revealing the interdependence between each of the approaches to understanding law.

Conclusion

The essence of law is characterized by the ability to recognize the citizen’s choice to act as he wishes. And also the absence of any coercion. But it is important to understand that freedom and right are different categories. The latter cannot exist outside of society and the people living in it. It is formed in their relationships and is associated with their capabilities. This means that law determines the boundaries of freedom. It is its measure. In turn, the modern approach to understanding law, be it normative or natural law, sociological or moral, is still the object of internal contradictions in society.

The normative understanding of law is most suitable for reflecting its instrumental role. The definition of law as a set of norms protected by the state allows citizens and other executors of legal regulations to familiarize themselves with the content of the latest normative acts in the text and, accordingly, consciously choose the option of their behavior. For this reason alone, this approach cannot be rejected. It cannot be associated with some names (for example, the name of Vyshinsky), forgetting about others, or with one time (for example, the time of the cult of personality), without taking into account the positive role of normativist views and normativist practice.

To the greatest extent, the normative theory of law was developed by G. Kelsen. For him, law is placed in such a connection with the state that the latter itself is considered as a personified legal order. Law in this theory is a hierarchical (stepped) system of norms, represented in the form of a ladder (pyramid), where each upper step determines the lower one, and the lower one follows from the upper one and is subordinate to it.

And if the top step is constitutional norms,

and then, accordingly, there are the norms of ordinary law, the norms of government acts, the norms of instructions of ministries and departments, up to individual acts, then the principle of compliance of one norm with another precisely means the approval of a strict regime of legality.

Kelsen had previously been subject to unconditional criticism. Today we understand that this criticism was largely due to ideological factors. Kelsen, for example, did not ask the question about the class essence of law, rejected the study of law in the aspect of economics and politics, did not enter into the solution of the question of where the original rule of law comes from (the study of law from the law itself), the so-called basic norm, standing above the constitution and norms international law.

But for a practical lawyer these are really secondary issues! He gave primacy to the norm of international law over the norm of domestic law. Now, most states are forced to recognize the need to correlate their legislation and legal practice with acts of rights, international agreements, UN resolutions, etc.

Law recognizes the state will, expressed in a mandatory normative act, secured by the coercive power of the state.

A pure practitioner of a normative sense in solving a specific case does not think about the class coloring of the state will. This may be the will of the entire people or a separate part of it, the will of the majority or minority, progressive or conservative layers of society. The state will can only be formed by the interests of the ruling elite, which diverge from the interests of the country and even the state as a whole.

In looking at reality and the solution of a case through legal glasses, through the prism of regulations adopted by the state - the content of the normative approach to law (simultaneously positive and negative). Let's talk about the positive first.

1. The normative approach, more than any other, emphasizes the defining property of law - its normativity. Having a general rule as a guide is a good thing, especially if it is universal and stable.

2. Normativity in this approach is organically connected with the formal certainty of law, which significantly facilitates the ability to be guided by legal requirements.

3. Fixed means of state coercion in cases of violation of law.

4. Opposition to the regime of arbitrariness and lawlessness.

5. Indirect focus on the need to establish proper (fair, moral, progressive, etc.) will as a law.

6. Focus on subordinate regulatory regulation of social relations in the course of legal practice.

7. Recognition of the state’s broad capabilities to influence social development.

The last point as a positive circumstance is not indisputable. And if we bring it here, then we must keep in mind the state that expresses the interests of society, serves them, focusing on such values ​​as justice, freedom, humanity. The normative understanding of law serves well in those historical periods that are characterized by stability. It does not cause any criticism from the point of view of practice, if the legislation has been updated, if all democratic procedures have been observed, if the norms reflect the progressive sentiments of the broad masses.

The negative in the normative approach is manifested in ignoring the substantive side of law: the position and degree of freedom of the addressees of legal norms, subjective rights of the individual, the morality of legal norms, and their compliance with the objective needs of social development. In itself, a normative approach to law would not be bad. What makes him vulnerable, paradoxically, is the state. For various reasons, in certain circumstances, it is satisfied with outdated norms or, worse, issues acts that run counter to life, adopts norms that work for conservative forces.

The main approaches to understanding law are normative, sociological And philosophical.

Normative theory based approach positive rights. Legal positivism in its classical expression can be characterized by pointing to the following main provisions:

1) law is a product exclusively of the state will, it is contained in regulations issued by the state, thus establishing a mandatory order of relations in society;

2) law enforcement (and, first of all, judicial) practice should not go beyond the limits of the norms issued by the state (a judge is nothing more than “a mouth pronouncing the words of the law”);

3) the task of legal science is only to study the norms issued by the state, classify them, develop concepts, legal constructions, technical methods of interpreting legal norms and applying them to specific cases, philosophical and moral assessments of the content of normative acts, as a rule, were excluded, legal science should accept the law as it is;

4) a citizen receives his rights from the legislator state.

The normative approach to understanding law is the most suitable for reflecting its instrumental role. The definition of law as a set of norms established and protected by the state allows citizens and other executors of legal regulations to familiarize themselves with the content of the latest normative acts in the text and consciously choose their behavior.

To the greatest extent, the normative theory of law was developed by G. Kelsen. Law in this theory appears in the form of a hierarchical (stepped) system of norms, represented in the form of a ladder (pyramid), where each upper step determines the lower one, and the lower one follows from the upper one and is subordinate to it. And if the top step is constitutional norms, and then, accordingly, there are norms of ordinary law, norms of government acts, norms of instructions of ministries, up to individual acts, then the principle of compliance of one norm with another means the approval of a strict regime of legality.

Sociological approach is based on sociological direction in jurisprudence. Basic provisions sociological approach are as follows:

1) social life is more complex and dynamic than the law established by government bodies in regulations; written law alone is unable to adequately regulate social relations;

2) it is impossible to legally recognize normative acts as the only source of law (negative attitude towards the requirement of legal positivism);

3) the requirement to recognize other sources of law as having independent significance (first of all, we are talking about judicial practice, which was declared one of the main sources of law, which in some variants of the sociological school of law has even greater significance than normative legal acts);

4) legal science must study not only written law, but also the practice of its application, and those relations that are regulated by law.

The sociological school of law was conceptually formed at the end of the 19th century. The rules of law, designed for free competition, in the new conditions of development of capitalism, ceased to satisfy the needs of social development. The courts were forced to interpret the laws in such a way that, under the guise of interpretation, new rules were actually established. Ideologists of new legal thinking called for open and free judicial law-making. Hence the thesis: “Right should be sought not in norms, but in life itself.”

Likening the written law to an empty sound, a vessel that still needs to be filled - these are the postulates of the sociological trend. Judges and administrators are called upon to “fill” laws with law, and this results in distrust of the law and legality, since law enforcement officials can satisfy their interests bypassing and contrary to regulations.

The sociological approach to law is attractive for researchers and legislators. To know the law, to issue a useful and effective law, you need to study legislation in action.

Philosophical theory based approach natural rights. The philosophical direction in jurisprudence is characterized by the following provisions:

1) there is a certain ideal legal principle, which is intended to predetermine what the law expressed in normative acts should be (natural human rights are an ideal legal principle);

2) a number of requirements for legislation are formulated: reflection in it of the ideas of justice, human rights, and other social values.

Even in ancient times, there was a distinction between right (natural) and law. The main postulate of the direction under consideration is the conclusion about the existence of higher, constantly operating norms and principles independent of the state, embodying reason, justice, the objective order of values, the wisdom of God, not only being directives for the legislator, but also acting directly.

In legal science of the late 19th and early 20th centuries. Various schools fiercely opposed each other, developed their positions, and honed their arguments in polemics against each other. Today we can talk not only about peaceful coexistence, but also about the integration of positivism, sociological theory and the concept of natural law - these directions have met each other halfway, without rushing to extremes.

NORMATIVE APPROACH TO LAW “norm”, i.e. a legal rule, the most important feature of which is its general binding nature, based on the coercive power of the state. A normative act, a law in which the state will is expressed, is the law.

Negative aspects Positive aspects of the normative approach Aspects of the normative approach The state can arbitrarily introduce any laws, “give” citizens certain rights and just as arbitrarily take them away. This approach to law is fraught with the danger of, at a minimum, state arbitrariness. In resolving a specific case, lawyers (judges, prosecutors, lawyers) can only rely on the rule of law

Negative aspects of the normative approach Positive aspects of the normative approach - Law is not considered as a measure of freedom and justice, the leading role of human rights in the legal system is not taken into account; -The vital interests of those to whom legal norms are addressed are ignored: the interests of the state are put in their place; - The state can issue regulations that contradict the requirements of humanism, meeting the interests of conservative and even reactionary forces - More than any other, it emphasizes the main, defining property of law - its normativity, i.e. the presence of a system of norms (generally binding rules of behavior), which clearly define how one can and should act in certain circumstances; - Clarity, unambiguity of expression of legal requirements, legal formulations, i.e. formal certainty of the norm; - Sanctions are clearly established - means of state coercion (in case of violation of the rule of law)

NATURAL RIGHT: FROM IDEA TO LEGAL REALITY Every person from birth (in other words, as nature, a living organism, by virtue of nature) has a certain set of rights and freedoms that are inalienable and belong to him throughout his life.

Proponents of natural law believe that law is not the same as law and means something more. The law, according to this legal understanding, is only one of the forms of expression of law. Laws established by the state are considered by supporters of natural law to be the creations of man himself (in the person of the legislator, ruler, state) and are called positive law, that is, positive law, existing as a documentary reality.

Natural law - regardless of the will of a particular legislator or state. Natural rights express the measure of human freedom, but freedom cannot be unlimited. Unregulated freedom always turns into lawlessness, arbitrariness, lawlessness, which lead a person to the catastrophe of self-destruction.

Natural Law (Roman) In Roman law there were two different terms: jus - law and lex - law. Jus - “right by nature” lex - “right by human institution”

Russian jurist I. A. Pokrovsky (1868-1920) noted that the idea of ​​natural law “stretches continuously throughout the entire history of Western Europe,” but it acquired particular depth and intensity in the 17th and 18th centuries. - in the era to which the name of the era of natural law is given primarily.

The era of natural law as a state-legal reality Declaration of Rights Adoption of the US Constitution, Philadelphia, 1787; man and citizen, France, 1789, Constitution of 1791

In December 1948, the Universal Declaration of Human Rights was adopted, and then a voluminous package of fundamental legal documents, which together formed the Charter of Human Rights. The Constitution of the Russian Federation (1993) included a chapter on the rights and freedoms of man and citizen.

Human rights are normatively formalized (i.e., presented in the form of clearly defined norms) features of a person’s existence that express her freedom and are a necessary condition for her life, her relationships with other people, with society, and the state.

What rights are considered natural, innate, inalienable human rights? The right to life and everything that contributes to the preservation and development of life. Right to personal integrity. Right to property. The right to freedom of thought, speech, movement. The right to elect their own rulers. Fundamental human rights are constitutional rights

The idea of ​​the natural law approach RELATIONSHIP OF NATURAL AND POSITIVE LAW Positive law as a documentary reality appears with the emergence of the state and exists only in written form, in the form of laws and other legal documents established by the state Natural law operates regardless of whether it is enshrined in any legal document or not.

If positive law is not based on natural law and does not proceed from its values, it ceases to be law. The highest value of law is a person, his natural, innate, and therefore inalienable rights. Natural law helps determine the extent to which the law respects the interests of a person, his rights and freedoms.

To determine the border (measure, scale) of freedom, or, in the words of I. Kant (1724-1804), the border of compatibility of the freedom of each person with the freedom of all other people, first of all, two great social regulators originating from life itself - law and morality - can determine .

The need to clearly define the boundaries of freedom makes the connection between natural and positive law inextricable. Natural law serves as the fundamental principle, the primary source of positive law, constantly feeding it with the ideas of humanism, freedom, and justice. Positive law gives these ideas the force of a universal, mandatory, state-protected norm of behavior - the force of law, thereby making the desired freedom of people real.

Positive law LAW-MAKING PROCESS IN THE RF The circle of subjects of legislative initiative: the President, the Federation Council, members of the Federation Council, deputies of the State Duma, the Government of the Russian Federation, legislative bodies of the subjects, the Constitutional, Supreme and Supreme Arbitration courts on issues within their competence.

Legislative process in the Russian Federation Legislative initiative Discussion of the bill in the State Duma Adoption of the Law in the Federation Council Signing and promulgation of the Law by the President of the Russian Federation

Signing and promulgation of the Law The purpose of promulgating the Law is to bring its contents to the attention of the population. Within 14 days, the President must review and sign the Law or return it for reconsideration.

PRACTICAL CONCLUSIONS Rights belong to a person from birth. These rights are the highest value. Human rights must be a) respected, b) respected and c) protected. Every person has the right to control the decisions and actions of the authorities, agree or disagree with them and, if necessary, appeal them in court. The exercise of your rights must not violate the rights and freedoms of others. Every citizen can make a legislative proposal.

SELF-TEST QUESTIONS 1. What is the essence of the normative approach to law? 2. Describe the main features of natural law. 3 In what ways does natural law become a legal reality? 4. Explain why the interaction of natural and positive law is necessary. 5. What is the humanistic meaning of natural law? Why is the legislative process built in stages? What are the main stages of creating a law?

Homework Par. 19, document pp. 226 -227, questions for the document Task 1 (item 3) p. 227 Based on your ideas about the modern approach to understanding law, create your own definition of law (not necessarily brief, you can give a description; the main thing is that it reflects the typical features of modern legal understanding).

Sources of information Social studies: textbook. for 11th grade students. general education institutions: basic level / L. N. Bogolyubov, N. I. Gorodetskaya, A. I. Matveev, etc.; edited by L. N. Bogolyubova and others. - M.: Education, 2010 http: //images. yandex. ru http: //www. booknavigator. ru/? page =itrec_2&id=57505