The concept of law is objective and subjective law. Objective and subjective law: the nature of the relationship

Theory of state and law in the system of humanities and legal sciences.

The humanities study society, man, social relations and institutions, forms of social consciousness, thinking, etc.

Legal sciences are part of the humanities, since state and law are social institutions.

TGP, being in the system of humanities, closely interacts with philosophy, political science, economic theory, sociology, psychology, ethics, history, pedagogy, etc.

With the help of philosophy, the ideological positions of the TGP are developed, as a result of which the latter is armed with a general methodology for understanding state and legal reality. Scientific knowledge state and law requires the use of philosophical provisions about general laws development of nature, society and thinking.

TGP very actively uses philosophical (universal) methods: metaphysics and dialectics; categories and concepts of philosophy: essence and phenomenon, content and form, possibility and necessity, cause and effect, system and structure, whole and part, goal and means, task and function, mechanism and development, freedom and responsibility, etc.

In turn, TGP provides specific material about the state and law for broad philosophical generalizations.

Using data from political science (the science of politics and political life), TGP considers state-legal phenomena in the context of the political environment. On the other hand, political science sometimes uses theoretical conclusions and generalizations related to such social institutions as the state and law (the concept, characteristics, forms and functions of the state, the relationship between political and state-legal regimes, etc.).

Between TGP and economic theory, sociology, psychology and others humanities there is also a close connection. They mutually enrich each other, often using both general, interdisciplinary concepts - society, good, interest, property, action, behavior, attitude, etc., and purely special ones - civil society, ownership, lawful behavior, illegal interest, industrial relations, etc.

TGP occupies a special place in the system of legal sciences.

In relation to industry legal sciences TGP acts as a generalizing category.

1) studies the most general patterns of development and functioning of the state and law. The subject of any branch of science is connected only with a certain sphere of social relations, with the framework of the corresponding branch of law.

2) TGP explores problems common to all branch sciences (rules of law, legal relations, subject of law, offense, legal liability etc.).

3) plays a methodological role in jurisprudence as a whole.

At the same time, TGP forms its conclusions in close connection with the branch sciences, proceeds from the factual material contained in them, and is designed to generalize the branch scientific information.

Concept and signs of law. Objective and subjective in law

Law is a system of generally binding, formally defined rules established or sanctioned by the state general(norms) provided with state protection.

Signs of law are a set of basic features of law that give it the character of a special dominant system regulatory regulation in society:

1. Normativity.

Legal norms do not regulate any isolated case, but a wide range of homogeneous circumstances, social relations, extending its regulatory effect to all cases of this kind. The law regulates the behavior of a personally indefinite circle of persons and operates continuously (permanently) until the repeal or amendment of the relevant legal norm.

2. General obligation (imperative). Law regulates the behavior of every person in a legally prescribed situation. All entities without exception (including the state) must fulfill legal requirements. The right is universal in nature, extending its effect to the entire territory of the country, to its entire population. Law has unconditional supremacy in the system of social norms.

3. Formalization. Law is characterized by documentary recording of legal norms in certain sources adopted according to established procedure, the right is set out in a certain form, which must not be violated.

4. Certainty. Legal norms are distinguished by special legal language, special legal technology: clarity, clarity, unambiguity of presentation. Laws should be clear to everyone.

5. State nature. Law comes directly from the state. Rules of law are not formed spontaneously, but as a result of purposeful lawmaking activities, serving as an attributive feature of the state.

6. State protection. This feature follows from the universality of law and complements it; the right is protected and guaranteed by the state.

7. Systematicity. Law is not a random set, but a harmonious, integral system of norms - an organized set of structural elements, interconnected and interacting with each other in a certain way.

Law is both an objective and subjective phenomenon, but the objective prevails in it. Objective in law:

1) it arose under the influence of objectively determined needs of the formed human society in establishing uniform fair rules of behavior for everyone without exception;

2) in objective necessity it is mandatory to implement these rules;

3) in the inevitability of reflection in the developed universal rules objective laws operating in regulated areas;

4) the law has its own objective laws of its origin, development and functioning.

Law is objective both in its source, in its essence, and in its tendencies. Due to the objectivity of law, it cannot be canceled by someone’s will.

Right subjectively, because:

1) it is created by people, by their conscious activity, according to their will

2) is carried out, carried out also consciously.

S.S. Alekseev: “Subjective right is the right in subjective sense, - legal permissibility of behavior for a specific subject;

objective law– right in objective sense - normative criterion legally permitted and prohibited ( Roman law, Finnish law, Russian law, civil law)".

Objective law is law in general, its essence, principles, regulations, rights and freedoms proclaimed by it as the possibility of their use by the relevant subjects; this is what is formed, what exists as an objective reality, independent of a specific subject.

Subjective right is the right of a specific person to achieve his right, i.e., a certain good or satisfaction of his legitimate interest(for example, the right to be elected) Created subjective right, usually, direct activities specific subject. Thus, subjective right is legal possibility specific subject

3. Systematization of regulations: concept and types

Legal system states- This a large number of regulations, regulations, which requires a certain grouping, classification for convenient and appropriate use them in the enforcement process.

Types of systematization:

1. Incorporation is an activity of unification legal material, in which it is fully or partially placed in various collections in in the prescribed manner. Incorporation can be carried out by both government bodies and public organizations And individual citizens Therefore, they distinguish between official, unofficial and official incorporation.

Official incorporation presupposes the adoption of unified collections and collections, as well as incorporated acts by those bodies that issued these acts. This incorporation carries out the preparation and publication of relevant systematic collections and collections by special government bodies authorized for such activities.

Unofficial systematic meetings are formed by various departments, scientific and educational institutions, as well as by private individuals without the instructions and control of a law-making body. One type of systematization is the chronological systematization of documents on official date their publication.

Subject incorporation- a type of systematization that allows you to highlight existing regulations higher authorities state power and management, arranged according to a subject principle with a strictly thematic focus. Subject incorporation is the result deep learning and analysis of material that is combined according to industry.

2. Codification- this is one of the types of systematization, carrying out activities for thorough (external and internal) processing current legislation through preparation and acceptance of new codification act which leads legal norms to a single legal force, which is communicated to a new act by the legislative body.

There are the following types of codification:

– general codification (formation of consolidated codified acts on the main branches of legislation;

– sectoral codification (systematization of legal norms in any branch or sub-branch of law);

– a special codification connecting the rules of law of an institution or group of legal institutions.

3. Consolidation– systematization of normative acts, which is created by eliminating and transforming normative acts, their unification and the creation of legislation of large homogeneous blocks as an important intermediate link between current law-making and codification. Legislative acts are called consolidated, which only summarize several laws previously published on a given subject, without changing their content in anything significant and without striving for a single logical structure (characteristic for English law).

Related information.

In legal science and practice, law is traditionally distinguished in the objective and subjective sense.

Objective law(or law itself) is a system of generally binding, formally defined legal norms established and enforced by the state and aimed at regulating social relations. Objective law is legislation, legal customs, legal precedents and regulatory treaties of a given period in a particular state. It is objective in the sense that it does not directly depend on will and consciousness individual and does not belong to him.

If objective right is legal norms, expressed in one form or another, then subjective law is those specific legal possibilities that arise on the basis and within the limits of objective law.

Subjective law is a measure of legally possible behavior designed to satisfy a person’s own interests. Subjective rights are specific rights and personal freedom (the right to life, freedom, work, education, etc.). They are subjective in the sense that they are associated with the subject, belong to him and depend on his will and consciousness.

A prerequisite for subjective right is legal capacity, i.e. the general (abstract) ability to have rights. Subjective right - necessary element specific legal relationship and, therefore, arises on the basis of a legal fact.

If subjective right provides for the opportunity to independently (without resorting to the help of other persons) perform certain actions (behavior) within the framework of the law and demand from everyone not to commit actions that violate this right, it is called absolute(for example, the owner of a thing has the right to dispose of it within the framework of the law).

Subjective relative the law provides for the possibility to demand certain behavior(actions or abstention from actions) from one or more specific persons and is associated with the performance of a duty.

Depending on the type of relations regulated by various branches of law, subjective rights can be civil, labor, administrative, procedural, etc.; may be aimed at protecting property and personal non-property interests of individuals and legal entities.

Protected by law in forcibly by filing a claim in court against the violator.

At the same time, we should not forget that it is not the state that creates and provides the individual with rights; they belong to her from birth, and the duty of the state is to recognize, respect and protect these rights.

87. Systematization of legislation

All regulatory legal acts function as a single system, which is characterized by consistency, interaction, hierarchy, specialization and differentiation by industry and institution. The system of regulatory acts in the Russian Federation includes legal acts of general federal bodies, acts of constituent entities of the Federation, local government, as well as acts of direct expression of the people's will. Such diversity is due to the federal structure of the state, the uniqueness of law-making bodies, the specifics of regulated relations, and other circumstances that serve as the basis for their classification.

Systematization is the streamlining of normative acts, bringing them into a certain system. It is necessary to ensure accessibility of legislation, ease of use, elimination of outdated and ineffective rules of law, resolution of legal conflicts, and closing gaps.

There are such types of systematization as: incorporation, consolidation, codification.

Incorporation (the simplest type) - systematization by combining normative acts without changing their content into a collection, where each of the acts retains its independent legal significance. Principles of incorporation: chronological (according to the time of adoption), thematic (on a specific topic), etc. Incorporation is divided into official (Collection of Legislation of the Russian Federation) and unofficial (collections regulatory materials by branch of law, published for educational purposes, to educate the population, etc. Unofficial incorporation materials may not be relied upon in legal proceedings, such as in court.)

Consolidation - systematization by combining normative acts without changing their content in single act, where each of the acts loses its independent legal meaning. They are united on the basis of their relevance to one type of activity (nature conservation, education, etc.). The peculiarity of consolidation is that it is a “compromise”, combining the features of incorporation and codification. Consolidation is often used as an intermediate solution.

Codification - systematization by combining normative acts into a single, logically integral act with a change in their content. In the process of codification, outdated legal material and contradictions in norms are eliminated, new rules of behavior are created, their consistency and logic are ensured(an example of this is the adoption of the first part of the Tax Code of the Russian Federation). Therefore, codification is the most complex and time-consuming type of systematization. Codification of legislation can be general (when a significant part of the legislation is revised), sectoral (when the norms of a certain area of ​​legislation are revised), special (when the norms of a legal institution are revised).

Signs of codification: firstly, only special bodies; secondly, as a result, a new normative act appears - the code; thirdly, the codified act is the main one among all other acts operating in this area.

As a result of the codification of Russian legislation, existing legal norms are reduced into a single, integral act, which is adopted by the relevant government bodies. Forms of codification are fundamentals, codes, charters, regulations, etc. For example, the Constitution of the Russian Federation is the main codified act. In addition, the following codes are currently in force in the Russian Federation - Civil, Criminal, Customs, Tax, Criminal Procedure, Civil Procedure, etc. Also worth noting are the Traffic Rules, the Charter railways and etc.

IN legal science and practice traditionally distinguish between law in the objective and subjective sense. This approach is due to the philosophical interpretation objective reasons historical development, i.e., independent of human will and perception, and subjective factors, i.e., phenomena determined by human consciousness and associated with human will.

Objective law is a system of legal norms adopted by the state on behalf of the entire society and extending its regulatory and protective impact to all members of the community. The implementation of objective law norms does not depend on their subjective assessment by community members. From the point of view of the normativist type of legal understanding, objective law is that which operates in given state legislation.

Objective character legislation is predetermined the following circumstances:

– a legislative act is considered valid regardless of whether a specific entity, whose behavior is regulated by this act, took part in its adoption or not;

– legal force regulations enshrined in legislative act, does not depend on his subjective assessment (agreement or disagreement with him) from the interested person;

– the act is considered valid regardless of whether it is applied to a specific subject or not.

Subjective law is a collection defined by norms objective law of rules of conduct, the implementation of which depends on the will of interested subjects, guided by these rules within the framework direct forms implementation of rights (observance of prohibitions, performance of duties, use of opportunities).

The interaction of objective and subjective law is subject to general objective laws interaction of objective and subjective factors. “Being secondary in relation to objective conditions, the subjective factor at the same time has its own content and, accordingly, the logic of development, being relatively independent, objective conditions can be realized in different ways in it, in accordance with its nature. Reaction active subjects to the same objective conditions may not be the same, since their impact on a person passes through his inner world, his moral values and attitudes, i.e. a person actively and selectively, and not passively, assimilates the objective conditions of the macro- and microenvironment that surround him.”

Subjective law is a complex category, the structural elements of which are the rules of possible, proper, and unacceptable behavior of subjects.

Legal options possible behavior together form Institute of Subjective Rights , which includes:

– right of a person independent actions satisfy one's own positive interests. For example, the right to participate in the formation representative bodies state power can be exercised by a citizen by voting on a particular candidate;

– the right of a person to demand from another subject of legal relations the fulfillment of obligations associated with the implementation of relevant opportunities. For example, the buyer’s ability to buy a thing presupposes that he has the right to demand that the seller provide this thing;

– the right of a person to demand from competent authorities government agencies objective resolution controversial situation or protection of legitimate interest. The Russian Constitution provides for the right of everyone to legal protection rights and freedoms (Article 46). Moreover, the subject can apply for protection as in federal authorities justice, and to interstate bodies for the protection of human rights and freedoms.

Objective law is a normative system (rules of behavior). This system comes directly from the state or public relations, which are recognized by regulators in the process of resolving certain legal cases. Objective law, in other words, is presented in the form of a set of norms that ensure the regulation of social relations, as an objectified result of the will of law-making bodies. This is, moreover, a set of rules of behavior, the use of which in the process of regulating relationships in society is sanctioned by the state.

The concepts of "objective law" and " positive law" are synonymous. Both terms mean a regulatory system emanating from the state.

As a reality, objective law functions in laws and other forms (sources) recognized. The existence of norms is characterized by independence. These norms function regardless of specific subjects, knowledge or ignorance of them by one or another person.

A detailed definition of the term is given in the legal literature. According to the generally accepted formulation, law is a normative regulator used in public relations, a system of formally defined, generally binding norms. These provisions are established or sanctioned by the state, they express its will, and also act as a criterion for lawful or illegal behavior.

IN this definition reflects the connection between law and state power. At the same time, the state acts as the main institution of lawmaking. However, it is not the only one. In accordance with the legislation established in a particular country, various entities can establish legal norms. In this regard, when defining positive law, they often do not directly indicate its interaction with the state. At the same time they say that this regulatory system, enshrined in laws and other sources.

As a rule, it is simply called “law”: the law of England, the law of Ukraine, the law of Russia, and so on. This refers to all existing legal norms of a given country. If they talk about “civil, etc.,” then they mean a specific legal branch; using the terms “bill” or talking about the institutions of a certain branch.

For norms that come directly from the state, an appropriate definition is used. They are called “legal norms” or “rules of law”. In many states specified standards are recorded in the text of the law or by-laws and other acts. Thus, positive law is “written”. In this regard, in these countries lawyers are often synonymous with this term use the concept of "legislation". It should be said that legislation is external. This form, in turn, is not the only one, and there are other sources.

It is necessary to distinguish between law in the objective and subjective sense. In the second case, we mean the possibility of certain behavior provided by the state and legislation. This feature applies to to a specific person- subject of law. So, for example, the owner of a house has the opportunity to use and dispose of it, that is, live in it, rent it out, sell it, donate it, exchange it, etc. This provides for one or the other subjective duty. It arises in accordance with the implementation of one or another possibility.

It arises on the basis of the norms of positive law and is provided for by them.