Subject, methodology and significance of legal science

Formation of methodology legal science historically determined by the development of the practical activities of society, its accumulation of experience of legal life in various spheres of life and, as a result, the development public consciousness, his legal way of thinking. The history of ideas about law, its comprehension, interpretation and knowledge has followed approximately the same path as the history of science as a system of knowledge as a whole. As a rule, the following stages are distinguished in it: philosophical-practical, theoretical-empirical and reflexive-practical. The first period covers the legal thought of antiquity, the Middle Ages and a significant part of the modern era, while the second and third periods mainly occur at the end of the 18th and 20th centuries.

In general, the evolutionary (gradual) development of law, the improvement of legal activity, law-making and legal technology, and at the same time a critical understanding of the created and functioning law was marked by the emergence special type social activities- scientific and doctrinal, aimed at understanding the general laws of legal life and the evolution of law. This circumstance, in turn, gave a direct impetus to the emergence of the foundations of the methodology of legal science as a branch legal knowledge engaged in the development and application of certain methods of studying law and legal reality.

Method is traditionally understood as the path to the goal, the road to knowledge. In relation to knowledge, it is used in the sense of “path to knowledge”, “path to truth”. The concept of “method” is defined as a method of action, a type of techniques and operations that guide cognition. This method always reflects the properties of the object and the subjective capabilities of the researcher.

For solutions scientific tasks There are many methods used that can be classified in different ways. The most common basis of classification is degree of generality. In legal science, it is also customary to divide methods into four levels: philosophical (worldview), general scientific (for all sciences), special scientific (for some sciences) and special (for individual sciences).

Special meaning for legal science they have formal-logical and general scientific methods scientific knowledge.

Among the general logical methods of cognition, the methods of formal logic are distinguished:

analysis is a method of mentally dividing the object being studied into certain elements with the aim of in-depth and consistent knowledge of them and the connections between them;
synthesis is a method of mentally recreating the whole on the basis of known parts and their relationships;
abstraction is a mental separation individual elements, properties, relationships of an object and considering them in isolation both from the object as a whole and from its other parts;
concretization – correlation of abstract ideas and concepts with reality;
deduction is a reliable conclusion from knowledge of a greater degree of generality to knowledge of a lesser degree of generality;
induction is a probabilistic conclusion from knowledge of a lesser degree of generality to new knowledge of a greater degree of generality;
analogy - a conclusion about the belonging of a certain feature to the subject being studied based on similarities in essential features with another subject;
modeling is a method of indirect cognition of an object using its model.

General scientific methods are those techniques and operations that have been developed through the efforts of all or large groups of sciences and that are used to solve general cognitive problems. These methods are divided into methods-approaches and methods-techniques. The first group includes substrate (content), structural, functional and systemic approaches. These approaches orient the researcher to the appropriate aspect of considering the object being studied.

It is with the help of this group of methods that the main process of scientific cognitive activity is carried out - this is the study of the properties and qualities of the studied object of knowledge.

At the level of general scientific knowledge, traditional methods of cognition of reality are also used: the system method, analysis and synthesis, induction and deduction, the method of historicism, functional, hermeneutic, synergetic, etc. They do not cover all scientific knowledge, like philosophical methods, but are applied only to certain areas of it. stages.

In this group, methods are divided into empirical and theoretical. The universal empirical method is observation, which means targeted sensory perception of the facts of reality. This method is characterized by relative limitations and passivity. These shortcomings are overcome by applying another empirical method. An experiment is a method in which, at the will of the researcher, both the object of knowledge and the conditions for its functioning are formed. This method allows you to reproduce processes the required number of times.

According to the historical method of cognition, the state and law must be approached as social reality changing in time and space. If, for example, in Marxism, when explaining the reasons for the development of society, the state, and law, priority is given to the economy (basis), then in idealism - to ideas, consciousness and worldview.

The systemic method is the study of state and law, as well as individual state-legal phenomena from the position of their existence as integral systems consisting of interacting elements. Most often, the state is considered as a collection of such components, as people, power and territory, and law - as a system of law, consisting of spheres, branches, institutions and norms of law.

Closely related to the system method is the structural-functional method, which consists in knowing the functions of the state and law, their constituent elements (functions of the state, functions of law, functions of legal responsibility, etc.).

In legal science there are a number of provisions, categories, structures and directions ( scientific schools), which are dogma, i.e. generally accepted and recognized by all lawyers and jurists. For example, such concepts and legal structures as a system of law, a rule of law, a system of legislation, a form of law, a source of law, the effect of law, a form of implementation of law, a mechanism of legal regulation, law in an objective sense, law in a subjective sense, legal relationship, subjective legal rights and responsibilities, etc., are generally accepted and interpreted essentially the same way for everyone.

Legal-dogmatic (formal-dogmatic) approachallows us to consider law as a sociocultural phenomenon and understand it as a system of fundamental legal provisions, rules and structures, means and methods of legal regulation, forms and concepts of legal activity, etc., formed in the process of the historical development of law and embodied in specific legal systems that are established by the state.

The hermeneutic method used in legal sciences proceeds from the fact that law, legal acts, and the rule of law are phenomena of a special worldview. Therefore, they need to interpret their “life integrity” on the basis of a person’s “inner experience”, his direct perception and intuition. Any era can be understood only from the point of view of its own logic. For a lawyer to understand the meaning of a law that was in force in the distant past, it is not enough to know its text. He must understand what content was put into the corresponding concepts in that era.

The synergetic method is a view of phenomena as self-organizing systems. From the creative potential of chaos emerges new reality, new order. In legal science, synergetics considers the state and law as random and nonlinear, that is, specific historical and variable social phenomena. The state and law are constantly changing, as they are determined by many different reasons, factors and options for possible events.

General scientific methods determine only general approaches to solving problems of legal science. Therefore, along with them, private scientific methods are used, which allow one to obtain specific knowledge on issues of state and law. These are methods of concrete sociological research, mathematical, cybernetic, comparative legal, etc.

The method of concrete sociological research involves the collection, analysis and processing of legal information (official documents, materials from the practice of law enforcement agencies, materials from questionnaires, surveys and interviews). It is aimed at establishing the social conditionality of law and legal norms, identifying the need for law in society and the effectiveness of legal regulation.

The mathematical method is based on the analysis of quantitative indicators that reflect the state and dynamics of changes in a particular socio-legal phenomenon (for example, the level of crime, public awareness of basic regulatory legal acts

etc.). It includes observation of socio-legal phenomena, quantitative data processing, their analysis and is used in the process of studying phenomena characterized by mass, repeatability and scale.

The modeling method is the mental creation of models of state-legal phenomena and manipulation of them in the expected conditions. This method is aimed at finding optimal solutions to specific problems.

The method of socio-legal experiment is to create an experiment using legal and government phenomena. For example, the introduction of the institution of jury trials, legal acts or individual legal norms and testing their effects in specific, real social conditions.

The cybernetic method is a method associated with the use of concepts (“input-output”, “information”, “control”, “ Feedback") And technical means electronics and computer technology. This method is used for automated processing, storage, retrieval and transmission of legal information.

Special methods make it possible to detail knowledge about legal and government phenomena. Special scientific methods should also include methods that allow one to develop new knowledge about law and the state (for example, interpretation of legal texts and norms). The methodology of interpretation is a separate direction of legal knowledge and is understood as the doctrine of interpretation or, as they sometimes say, hermeneutics.

Hermeneutics (from Greek. hermeneutikos– explaining, interpreting) – the art of interpreting texts (classical antiquity, religious monuments, etc.), the doctrine of the principles of their interpretation.

Legal science in its continuous development is in constant interaction with various branches of humanities. Modern legal hermeneutics, as a direction of modern jurisprudence, actively develops issues of interpretation, problems of the theory of the language of law, including in connection with the fundamental problems of understanding the meaning of legal texts. She explores the practice of interpreting various legal meanings contained in official written documents and oral speech, in signs and symbols, in the judgments of lawyers regarding legal situations. It should be noted that the hermeneutic approach to the study and interpretation of legally significant texts represents a legal direction in the field of humanitarian knowledge.

Until recently, legal research, as a rule, was limited to formal logical operations designed to produce the most in-depth analysis of legal material for its practical use in the process of implementing a particular law. The rationale for this approach was the general belief in the original purpose of jurisprudence to meet the requirements of legal practice and the process of training and further training of legal professionals.

Over the course of many centuries, numerous attempts have been made to interpret legal texts of a sign-symbolic nature. The need to interpret these texts is due to the following reasons:

the ambiguity of legal monuments and texts, depending on the obsolete words contained in the law and the archaic text, or on the fact that the expression used by the law grammatically equally admits two different interpretations;
specificity in the presentation of legal texts (doubts in the understanding of the law sometimes arise from the fact that the legislator, when presenting the law, instead of the general principle, presents individual, specific objects of the law);
uncertainty of the law (sometimes doubts arise due to the use by the legislator of general, insufficiently defined expressions); uncertainty of quantitative relations in the law;
contradictions between different texts of the law;
interpretive fences around the law;
changes in living conditions (the main motive that prompted teachers of the law to interpret the text, and quite often in contradiction with its direct, literal meaning, were changes in the cultural structure of people’s life, as well as changes that occurred in the ethical views of the people on the person’s personality, etc. ).

The purpose of modern legal hermeneutics is, after all, to search and realize the meaning of a legal text, to study the problems of multiple meanings and interpretation. IN modern conditions the form of law cannot act otherwise than as a sign form, the source and embodiment of which is language. Legal regulation and its elements act as ideal objects, an external form of expression of social consciousness, which is subject to understanding and application.

The indicated methods, as a rule, are not used separately, but in certain combinations. The choice of research methods is associated with various reasons. First of all, it is determined by the nature of the problem being studied, the object of research. For example, when studying the characteristics of a particular state that organizes social life in a given society, you can use a systemic or structural-functional method. This will allow the researcher to understand what underlies the life activity of a given society, which bodies manage it, in what areas, who carries it out, etc.

The choice of methods is directly dependent on the ideological and theoretical position of the researcher. Thus, a legal ideologist, when studying the essence of the state and society, their development, will most likely focus on the driving factors of their evolution, positive ideas of the creative activity of society, and a legal sociologist will analyze the effectiveness of the influence of certain ideas, norms and legal acts on the development of the state and public consciousness.

§ 2. Dialectical principles of scientific knowledge in jurisprudence

There are several theories in science that describe the development various systems. Dialectics is considered to be the most applicable to various changes in the surrounding world. In Ancient Greece, this concept meant a dispute, a clash of opposing views, a contradiction. Later, this concept began to denote the contradictory nature of relations not only in polemics, but throughout nature, as well as in social (legal) development. A holistic dialectical concept of development was developed by a German philosopher of the 19th century. G. Hegel. Currently, dialectics refers to the theory of the development of consciousness (thinking), which is based on the contradictory nature of all kinds of changes. This direction of philosophical knowledge is called objective idealism.

The content of scientific theories are its principles and laws. Principles are the fundamental ideas that determine a person’s practical or spiritual activity, for example, in the construction of some kind of knowledge system (theory). For dialectics, such fundamental ideas are the principle of universal connection and the principle of development in all forms of being. The first principle implies that any object in our world is directly or through other objects connected with all objects. For example, every person is connected to planet Earth. Our planet is connected with the Sun. solar system is connected by physical dependencies with other systems of our Galaxy, which, in turn, with other Galaxies. If we graphically depict this situation in the form of points (objects) connected by lines (connections), we will see that each person is in connection with all cosmic objects, i.e. with the entire Universe. Another thing is that these dependencies can be almost invisible. In a similar way, you can trace the chains of connections of all objects on Earth. The meaning of the second principle was discussed above.

The concept of “law” is of particular importance. Many people, especially those who are mastering legal specialty, apply this concept too narrowly, forgetting that in addition to legal laws, there are other laws.

The concept of “law” denotes a special kind of connection. This is an essential, stable, necessary connection between objects.

The connections between various phenomena in nature are objective. Regardless of whether a person knows about them or not, understands or does not understand the essence of events, these connections are realized in the presence of appropriate conditions. Such stable and necessary connections are called the laws of reality.

If a person, with the power of his mind, penetrates into the essence of ongoing processes, if he manages to discover the causes of certain events, the conditions for the implementation of certain connections, then this knowledge is formulated as the laws of science. This is a subjective description of natural connections by man. It is quite obvious that the laws of science describe natural connections approximately, because man does not know everything. Only in exceptional cases do the laws of science exactly correspond to the laws of nature. Therefore, people often fail when they rely too much on their knowledge, even if they consider it scientific.

In order for society to maintain at least some order, it is necessary to establish rules for relationships and connections between people. Finding and defining connections that would satisfy all people is very difficult, if not impossible. Therefore, legislative bodies develop generalized rules of conduct that regulate diverse social relations in various spheres of life. In this sense, legal laws are connections prescribed to people with other objects.

In the following presentation it is implied philosophical meaning the concept of “law”, which applies to all forms of being, and not just to legal relations. In dialectics as a theory of development, three laws are formulated: “the law of unity and struggle of opposites”, “the law of mutual transition of quantitative and qualitative changes”, “the law of negation of negation”.

First law: unity and struggle of opposites.

Its formula is as follows: in the essence of every thing there are opposite sides(properties) in a state of unity and struggle; the struggle of opposites leads to an increasingly acute contradiction and ends with the disappearance of the old and the emergence of a new state of things.

The most important concepts of the law: identity - sameness, coincidence, equality; difference - dissimilarity, discrepancy, inequality; opposite - extreme degree of difference. According to this law, the source of change and development of any object is in itself. This is true in all cases where there is no intervention from an external force. This law proposes to perceive any object as a complex formation that contains elements that are not directly compatible with each other.

The unity of opposites is as follows:

they are inextricably linked (for example, individual and general features of an object;
there are no unique objects, each is somewhat similar to the others;
there are also no standard objects in the full sense, each one is different from the others in some way);
they mutually determine each other (the individual can only be distinguished against the background of the general and vice versa);
they mutually transform, mutually transform into each other (what in one respect acts as a single feature, for example, a person who knows criminal law among the mass of bus passengers, in another respect is a common feature - the same person among the employees of the prosecutor's office).

The struggle of opposites consists in the fact that they oppose each other, strive to exclude (destroy) each other, for example, knowledge and ignorance of an individual - something is remembered, but something is forgotten. Contradiction is the culmination of the struggle of opposites. The departure from this boiling point, the end of the struggle, is development. For example, a student is facing an exam (test, survey, etc.). He is worried about a contradictory situation: on the one hand, it is mandatory to pass the exam, on the other hand, there is no (or little) knowledge. This contradiction can be resolved in two ways:

the student has learned the material and is already a different person, smarter, that is, he has developed towards perfection in this area of knowledge;
decided to give up knowledge, and the exam, and educational institution- he also became a different person, he had already gotten rid of the desire for perfection in this area, that is, he developed towards degradation on this path of life.

Thus, through the connection (struggle) of opposing forces, properties, dependencies, all objects of the world develop, including social systems, man and his spirituality. It is necessary to understand that for a person, contradictions with himself and the people around him are not a disease, but a natural state. Civilized relations in society require attentiveness to these contradictions, forecasting their consequences, and the ability to manage oneself.

Second law: mutual transition of quantitative and qualitative changes.

Its formula is as follows: the development of a thing occurs through quantitative changes, which, accumulating, exceed a certain critical measure and cause qualitative changes, and these, in turn, give rise to new possibilities for quantitative changes.

The basic concepts and characteristics of this law are as follows:

The initial concept of this law is the concept of “property”. This concept denotes the presence and nature of the variability of an object, which manifests itself in relationships with other objects. Properties show the similarity or difference between objects. Any object has many different properties:

quality is a set of basic properties of an object, which determines its state of identical compatibility with itself. Thanks to a set of these properties, a thing exists as such and is different from others. With the loss of at least one of these properties, a thing ceases to be itself, loses its original certainty and acquires a different status. For example, the flag is red - a symbol of the communists, faded, became white - a symbol of surrender;
quantity is the amount of change in an object. Often, but not always, this volume can be expressed numerically. For example: assessment of student knowledge;
a measure is a boundary, upon crossing which quantitative changes cause qualitative changes. Within the boundaries of a measure, quality remains unchanged, but quantity varies. For example, ice - (0 o C) water (100 o C) - steam.
the transition from one quality to another is called a “leap.”

Thus, through the connection of quantitative and qualitative changes, the development of all objects in the world occurs. If people want to achieve qualitative changes in the social structure, technology or the formation of their own properties, then there is no other way than corresponding quantitative changes, that is, a gradual change in the culture of society, the accumulation of scientific knowledge, personal training and hard work. And in order to achieve high quantitative indicators in any sphere of social life, you must first reach a certain qualitative level of development. For example, if you want to run fast, learn to walk first; If you want to accumulate scientific knowledge, first learn to read and write. Development is reaching a new qualitative level, otherwise it is not development, but simply a quantitative change in the properties of an object.

Third law: negation of negation.

Its formula is as follows: development occurs through the dialectical negation of the old state of the object by the new, the new by the newest, as a result of which development combines a successive and cyclical character.

The category “denial” expresses a certain type of change in the state of an object. Any object, developing, inevitably reaches the stage of negation, that is, it becomes qualitatively different. Complete negation is a change in quality to a contradictory one. The chain of negation of the old and the emergence of the new has neither beginning nor end. Denial can take the form of simple destruction of an object. Then there is no need to talk about development.

Dialectical negation involves the destruction of only part of the properties of an object that are no longer needed or even harmful. At the same time, other properties are preserved, those that determine the existence of the system at the present time, and fundamentally new properties also appear, which ultimately determines a qualitative leap.

Double complete negation (denial of negation) is a situation of “supposedly returning” to the old: every phenomenon turns into its negation, but then negation occurs again; as a result, the third phase has formal similarities to the first. If there is no development, then change goes in circles. If there is development to a similar state, the object returns at a different level. Therefore, dialectical development is spoken of as movement in a spiral.

Thus, this law demonstrates the connection between the old and the new in development, their struggle and mutual transformation. Any new thing that arises sooner or later grows old and disappears. People, if they are interested in the development of any systems, including themselves, cannot escape from abandoning (denying) some old properties, connections, states and acquiring directly opposite, new properties, connections, states. The old is collapsing elements and connections; they entail the destruction of the entire system, reducing its functionality. New means improving elements and connections; they improve the system as a whole and increase its functionality.

The laws of dialectical development are specific and cannot be reduced to each other, but they are not separated by an impenetrable wall. They are interconnected and complement each other in describing development. Development is the resolution of contradictions, it is also a change in qualitative state, it is also the dialectical negation of the old by the new.

Let us consider the manifestation of these laws as a change in the stages of development of the political and legal sphere of society.

The state-legal sphere is a set of relations between social subjects, which are designed to provide them with collective stability and controllability on the basis of law as a social regulator of behavior. In primitive society, stability and controllability were ensured by collective power control over the observance of customs and traditions, regulations and taboos (prohibitions based on fear of retribution from some deity). At the next stage, the function of ensuring integrity is assigned to permanent rulers (leaders). The next step in the development of the political sphere is the emergence of the state as a special organization that ensures the security of society and law as an officially established system of relationships, the violation of which entails forced punishment by the state. A dialectical return to collective participation in ensuring the unity and vitality of society is the development of civil society organizations that seek to participate in the management of social processes. These include institutions of culture, science, political parties, corporations, etc.

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Legal science is a system of knowledge about the state and law in general and individual aspects of state legal reality.

Characteristic features of legal science: Legal science is a special field of knowledge in the system of humanities; Within the framework of legal science, theoretical and applied development of state and law is carried out; The task legal science is - knowledge of the laws of state and legal life of society;
Legal science is a system of objective, reliable knowledge about the state and law. Knowledge about state and law is based on the achievements of other social sciences and is also verified by practice.

Concept methodology science is used in two meanings: in a narrow sense - as a doctrine about the principles, methods, techniques of scientific knowledge of the subject of the theory of law and state, and in a broad sense. Methodology of the theory of law and state in the latter sense represents the totality scientific principles, methodological approaches, methods of cognition and the worldview of the researcher, as well as the scientifically developed system of legal (and state studies) concepts and categories that serve as tools for cognition of state and law.

Under methodology understands the system of principles and methods of organizing and constructing theoretical and practical activities, as well as the doctrine of this system. IN Methodology content included :

Principles of scientific knowledge;

Scientific approaches (for example, formational and civilizational, used in the study of the typology of the state and legal systems; integrative approach - in the study of the essence of law, etc.);

Methods of cognition;

The worldview of the researcher (the scientist takes a monistic position or is based on a multidimensional vision of government and legal problems);

To the principles of knowledge scientific science refers to the initial, guiding ideas, provisions that the researcher must be guided by. The principles of knowledge are an integral part of the universal, or dialectical, method. Such principles are formulated by dialectical logic, and they include:

-principle of objectivity , meaning that in the process of cognition one should approach the phenomena being studied as they exist in reality, without distorting their essence, without idealizing them;

-the principle of comprehensiveness of knowledge;

-the principle of historicism of knowledge, indicating that the phenomenon under study should be considered in development. In relation to the state and law, this means that it is necessary to find out how this phenomenon arose, what reasons gave rise to it and contributed to its formation and development. Eat whole line and other scientific principles that are not included in this list.

Along with principles, the initial methodological guidelines for any research are laws of dialectics :

The law of the transition of quantitative changes to qualitative ones (the increase in the number of norms and institutions in the tax sphere led to the separation of such a branch as tax law from financial law);

The law of unity and struggle of opposites (unity of rights and duties; correspondence in legal relations of duties to subjective law);

The law of negation of negation (in the legal system of Russia there are elements of the legal system of the past and future of Russia).

Scientific approaches – This is a methodological compass that points the researcher in the direction of research, the choice of means of knowledge, and largely determines his worldview. Scientific approaches - this is a kind of cognitive strategy chosen by the researcher, a methodological platform on which his views are based in the study of state and law. There are formational and civilizational approaches used in the study of the typology of the state and legal systems; natural law, sociological, normative, integrative approaches - when studying the essence of law.

The central component of the methodology is method, which is understood as a way of understanding the subject of science. In jurisprudence, methods of cognition are the tools that allow one to penetrate into the legal fabric and understand it. The following groups of methods are distinguished:

1) universal philosophical method. It is used in all specific sciences, at all stages of scientific knowledge. The general method is the method of materialist dialectics.

Method of materialistic dialectics, combining a dialectical approach to knowledge of the surrounding world with its materialistic understanding, is the most effective way studying natural, social and mental processes.

When studying law, the method of materialist dialectics is manifested in the fact that the state and law are considered as phenomena that, firstly, are determined by human nature, socio-economic, political, spiritual and other conditions of society.

Secondly, they are closely related to other social phenomena. It is difficult to find a sphere of social relations in society where the state and law do not manifest themselves. By correlating the state and law with other social phenomena, it is possible to determine their characteristic features, role and place in society. That is why the state is compared with political system society, politics, public entities, and law - with economics, legal consciousness, morality, and customs.

Thirdly, the state and law are constantly evolving. Every new stage in the forward movement of society - this is also a new stage in the development of the state and law.

2) general scientific methods. These include:

Analysis and synthesis;

Induction and deduction;

Ascent from the abstract to the concrete and from the concrete to the abstract;

Method of unity of historical and logical.

Systems approach,

Comparison;

Comparative method. It involves comparing state legal concepts, phenomena and processes and clarifying the similarities or differences between them. As a result of the comparison, the qualitative state of state legal systems as a whole or their individual institutions and norms is established. Matched objects must meet one general requirement: they must be comparable. You can compare political, state, legal systems, branches of law, legal institutions and norms of the same name. You can do the same thing within a separate legal system. But you cannot compare, for example, the legal system as a whole and a separate legal norm. These objects are incomparable in level, volume, content and characteristics.

If high-level objects that are complex in their structure are compared (for example, states or legal systems various countries), then it will be macro comparison . A comparison of less voluminous, simpler in structure objects (legal institutions, legal norms, crime in individual regions of Russia, etc.) is called micro comparison.

Only by comparing state legal material and obtaining results, it is possible to determine specific ways to improve state legal systems, improve legislation, strengthen law and order.

Logical method. It includes means and methods of logical study and explanation of law and is based on forms of thinking and laws of formal logic.

Each of the laws of logic (identity, contradiction, excluded middle, sufficient reason) fully manifests itself in law, reflecting its features. All basic legal procedures and processes (and, above all, law-making and law enforcement) are built in strict accordance with forms of thinking - the rules for operating concepts, judgments, and inferences.

Any legal norm is a judgment, and it must meet the requirements of judgment.

Application of the rule of law to specific situation, to a certain person, is a deductive inference (syllogism), where the rule of law is the major premise, the case under consideration is the minor premise, and the decision in the case is the conclusion. Logical operations and methods of proof, analogies have been in the arsenal of jurisprudence since ancient times.

The use of logical means in the study and explanation of law allows one to avoid contradictions when constructing legislation, to build a logically consistent and thereby effective system of law, to harmonize the positive, i.e. existing law, with the requirements of natural law, and finally, correctly and competently apply legal norms.

Analysis phenomena involves dividing them into parts and then studying each of these parts. For example, in the category “system of law” the concepts of industry, sub-industry, institution and rule of law are identified and explored.

Unlike analysis , synthesis , - This is the study of a specific phenomenon in the unity of all its component parts. For example, when it comes to law, it is assumed that legal norms, legal customs, religious norms, etc. should be studied in unity. Analysis and synthesis are not only interconnected, but also complement each other.

In accordance with by the method of historicism State legal reality must be approached as changing and developing over time. In different philosophical systems, the method under consideration is interpreted differently. If, for example, in Marxism, when explaining the reasons for the development of society, state and law, priority is given to economics, then in non-Marxist teachings, priority is given to ideas.

System method is the study of state and law, as well as individual state-legal phenomena from the perspective of their systematicity, i.e. joining the relevant system. The state and law themselves can be considered as a system. In this case, intrasystem connections are analyzed within the framework of the state and law itself.

Closely related to the system functional , which consists in clarifying the functions of the state and law and their elements (functions of the state, functions of legal responsibility, etc.).

Hermeneutic method, used in jurisprudence, proceeds from the fact that the text of the norm is a document of a special worldview. Therefore, it needs to be interpreted on the basis of a person’s “inner experience” and his direct perception of “vital integrity.” Any era can be understood only from the point of view of its own logic. For a lawyer to understand the meaning of a law that was in force in the distant past, it is not enough to know its text. He must understand what content was put into the corresponding concepts in that era.

3) special methods, or methods of specific sciences - statistical, concrete sociological, psychological, mathematical, cybernetic, etc. In jurisprudence they are used quite widely, especially in the study of applied problems of science;

Sociological (specific sociological) method. It consists of the study of state and law based on factual data from state science and jurisprudence. In this case, legal material is considered not at the level of abstract categories, but on the basis of specific facts. The sociological method of studying state and law includes such methods as analysis of statistical data and various kinds of documents, socio-legal experiment, population surveys, mathematical and statistical methods of processing material, and some others.

Statistical method is based on the analysis of quantitative indicators that reflect the state and dynamics of a particular phenomenon (for example, crime, level of legality, etc.). It includes observation of phenomena, summary processing of data, their analysis and is used in the study of phenomena characterized by mass and repeatability.

Simulation method - This is the mental creation of models of state-legal phenomena and manipulation of these models. This method is aimed at finding optimal solutions to specific problems.

Method of social and legal experiment consists in creating legal norms on an experimental basis and testing their effect in specific conditions. The capabilities of this method are extremely limited.

Cybernetic method– this is a technique associated with the use of concepts and technical means of cybernetics (for example, the concepts of “control”, “feedback”), etc. This method is used to develop automated processing, storage, and retrieval of legal information.

4) private legal or special legal methods. They are used at the stage of knowledge of legal practice.

1. Formal legal, or legal-technical, dogmatic method used for cognition of external and internal form legal phenomena. Allows you to formulate concepts, definitions, definitions (legal personality, subjective right, guilt) on the basis of generalization.

2. Methods of interpretation of law are intended to clarify the true will of the legislator, expressed in the text of the law.

3. Comparative legal method is based on the sequential study and comparison of a large number of similar objects. Thus, the advantages and disadvantages of a state or legal institution are determined in comparison with similar institutions in foreign countries.

4. Method of state-legal modeling used to find an optimal model for organizing the state apparatus, rationalizing the administrative-territorial division, forming a legislative system, etc.

5. Method of law-making experiment applies for testing as new legislative act, and individual legal institutions (a set of legal norms in the draft law).

Legal reality is currently being modified under the influence of social processes, which is manifested in the complication of the organization of its structure, and is reflected in the law itself, its branches, which requires a strictly scientific approach to its knowledge, the application of advanced principles and ideas of various methods of knowledge. Hence the theory and methodology of legal science is an attempt to construct the entire legal reality modern society and building the entire categorical apparatus. This allows us to see not only the principle of the integrity of legal reality, but also the information interconnectedness and controllability of the legal existence of society.

Today in science there are many views on the methodology of legal science from the perspective of various philosophical and theoretical schools. For example, from the point of view of the system-activity approach (V.M. Gorshenev, V.N. Protasov, R.V. Shagieva, etc.), structural-functional (S.S. Alekseev, G.I. Muromtsev, N. I. Kartashov, etc.), information and communication (R. O. Halfina, A. V. Polyakov, M. M. Rassolov, etc.), normative (M. I. Baitin, A. P. Glebov, etc. ), cultural and historical (V.N. Sinyukov, A.P. Semitko); integrative (V.V. Lazarev, B.N. Malkov) and even civilizational.

The question of the very understanding of the methodology of jurisprudence in legal science is relevant. The opinions of theorists on this issue differ diametrically. This is partly due to the difference in understanding the methodology and method of jurisprudence, as well as the tasks themselves, the object and subject of legal science. Perhaps the greatest discrepancies in the understanding of the methodology of legal science are associated with ideas about the boundaries of methodological research in jurisprudence. Some authors limit the methodology of legal science to the study of the research tools of jurisprudence, the application of a set of specific methods and means of scientific knowledge to the study of legal phenomena. Others complement the instrumental approach with the study of the process of cognition of law itself, its philosophical and methodological foundations. Still others talk about considering the epistemological features of jurisprudence, arguing that “the analysis of legal knowledge at the level of philosophical methodology is insufficient and overly abstract to identify the specifics of legal (theoretical) knowledge. One way or another, theorists are inclined to believe that a different, more specific methodology is needed, dealing not with theory in general, but with the type of theory that is observed in legal science.” You can also notice the actual identification of the methodology of jurisprudence with the entire set of principles, means and methods of rational knowledge;

All these circumstances do not allow legal scholars to develop a single, objectively verified and coherent system of scientific methods of cognition, which, of course, does not contribute to the vigorous development of legal science and the solution of practical problems of jurisprudence. For example, D. A. Kerimov believes that the methodology of law is nothing more than a general scientific phenomenon that unites the entire set of principles, means and methods of cognition (worldview, philosophical methods of cognition and teachings about them, general and specific scientific concepts and methods) , developed by all social sciences, including the complex of legal sciences, and used in the process of learning the specifics of legal reality and its practical transformation; according to V.N. Protasov, the basis of the methodology (system of methods) of the theory of law and legal science in general is philosophy, the laws and categories of which are general, universal and apply to all phenomena of the world around us, including law and the state; V. S. Nersesyants understands the legal method as the path of legal knowledge - this is the path leading from object to subject, from primary (sensual, empirical) knowledge about law and state to theoretical, scientific-legal (conceptual-legal) knowledge about these objects. The legal method as a path of knowledge is an endless path of deepening and developing knowledge about law and the state, a continuous movement from already accumulated knowledge about these objects to its enrichment and development, from the empirical level of knowledge to theoretical level, from the achieved level of theory to a higher level, from an already established concept of law to a new, theoretically more meaningful and rich concept; V. M. Syrykh believes that the methodology of law, being part of the theory of law or an independent scientific discipline, contains knowledge about:

– what techniques and methods of scientific knowledge should be used in understanding the subject of the general theory of law;

– what techniques, methods of cognition should be used to carry out this or that research procedure;

– how methods are interconnected in the process of cognition, movement towards new knowledge in the process of ascent from the concrete to the abstract and vice versa.

This multipolarity of ideas about the methodology of legal science is due to the versatility and complexity of not only the phenomenon of “methodology” itself, but also the phenomenon of “law” itself, which is studied using certain ways of thinking. Problems of the methodology of cognition of law require thorough and constant research from a variety of directions in view of the conceptual importance of the means of cognition of legal reality: the result of cognition depends on which method of cognition. The famous Soviet theoretical physicist L. Landau said that “the method is more important than the scientific discovery itself, because it allows you to make new discoveries.”

Legal methodology, as an integral part of the theoretical science of law, deals with the development of methods of legal knowledge. Recent work in this area shows that without careful study of the methods of scientific knowledge there cannot be a full-fledged scientific explanation of law and legal reality as the most complex phenomena of reality. Meanwhile, until now, there are different views of legal scholars on these issues, arising from different ideological positions.

In the light of globalization, informatization, issues of bioethics, space research and the emergence of the Internet, the problem of changing the scientific paradigm and legal thinking is relevant. Such changes in legal reality require the development the latest methods knowledge of these phenomena and the transition from the traditional theory of state and law (formal and dogmatic) to modern objective science based on natural scientific understanding. All this suggests that the methodology of law, and indeed the entire legal science, does not stand still, but is trying to update the basic processes of mental activity, reflecting them in the content of science itself.

Thus, the methodology of legal science is a general scientific phenomenon (for all legal sciences), covering the entire set (system) of principles, means and methods of cognition (worldview, philosophical methods of cognition and doctrines about them, general and particular scientific concepts and methods) developed all sciences, including the system of legal sciences, and those used in the process of understanding the specifics of state-legal reality and its improvement.

A method is a set of techniques and operations aimed at the theoretical and practical development of reality. (From Greek. Methodos means "way of knowing").

The method assumes:

– Conscious achievement of results.

– Availability of a plan of cognitive actions.

– Sequence of actions and operations (method technique).

Methodology – a set and sequence of techniques used to achieve results, linking the order of transition from one method to another.

The choice of method is determined by:

– The nature of the subject of research.

– Correlation of the real situation, the task at hand, the available arsenal of tools, skills, and abilities.

The main thing in the teaching of method is the idea of the correctness of the path.

The method serves to streamline cognitive activity.

The main function of the method is internal organization and regulation of the cognition process. In this regard, the method comes down to methodology - as a set of certain techniques, rules, methods, norms of cognition and action in their sequence.

Method is a system of regulations, rules and requirements that act as a general orientation in solving a certain result.

When the role of the method is overestimated, knowledge can take on a dogmatized character. The subject and method mutually develop each other, i.e. the method must be considered in a sociocultural context.

Methodology – 1) a system of certain methods and techniques used in a particular activity;

2) this is the doctrine of a system of methods or a general theory of methods used in the practice of cognitive and practical activity.

Methodology (from the Greek words “method” - the path to something and “logos” - science, teaching) is the theoretical justification of the methods used in science for cognition of the reality around us, the doctrine of the scientific method of cognition.

Feature modern science – increasing the role of methodology. Reasons for this:

1) the growing complexity of the structure of theoretical and practical knowledge, the need for their verification, justification, research, for further cognitive activity (methods of verification are needed);

2) the increasing role of abstraction in the natural sciences, the creation of ideal and iconic models, which leads to a complex interweaving of the description of the properties of material objects that are studied with abstract constructions of these objects;

3) an increase in the conjugation of the results of a material, objective experiment with the conclusions and consequences of a thought experiment. In science there is a need for a developed mature methodological consciousness of the scientist.

– the instrumental part in which the requirements are formed that determine the course of mental operations, that is, the definitions are not of content, but of the course of thought and the course of action.

– constructive, aimed at increasing knowledge, obtaining new knowledge.

In science (in particular, in jurisprudence), the prevailing opinion is that the entire set of techniques and methods of scientific knowledge, according to the degree of their generalizing nature (from identifying the most general patterns to determining the characteristic features of specific phenomena), can be divided into four levels: philosophical (worldview), general scientific (for all sciences), specific scientific (for some sciences) and special (for a particular science). These methods allow us to understand state-legal phenomena and processes, their form, content, functions, essence and various manifestations.

General methods(philosophical and ideological methods) are used in all sciences and at all stages of scientific knowledge.

In relation to other sciences, philosophy as the science of the universal laws of the universe (the ultimate foundations of being) acts as their main and general method, as a kind of starting point and preparation for more detailed (general scientific and private) knowledge. Legal science understands the world through the prism of man, his legal way of being, as well as through the prism of social life and the state. IN real life With the help of the legal worldview and law, people comprehend and use the properties of surrounding objects, extracting their useful qualities in their life. Therefore in scientific activity Various methods of studying and ways of processing empirical facts are formed. And the more complex the object, the more relevant the question of how it should be studied in order to correctly understand its essence and manifestations. It can be answered only by defining some general, deep laws and principles. However, the forms and methods of cognition do not matter in themselves. They help people navigate the world around them, live and develop harmoniously, find a way out of various situations, etc. And, of course, understand how law and its forms of expression arise and develop, what are their properties and strength. This world is not only nature and the natural habitat of man and society. A person cannot live outside of any social community, whether it is a people or a state, outside of connections with other people, outside of connections with objects that he himself created, and outside of the connections of the surrounding world.

Therefore, the philosophical method is intended to answer the question about the purpose of human existence through a legal way of activity, about its future development as a legal being. Does a person have free will in legal terms, and what are the limits of this will? Thus, through the ideological cross-section of understanding reality, law and the state turn into one or another type of state legal activity of the company, becoming a guideline and form of its evolution.

Knowledge about the most important laws, properties of legal reality and legal consciousness appears from the side of philosophy in jurisprudence in the form of a system of general special legal and philosophical categories. These categories are the so-called paired categories of the highest methodological order: idea - law, principle - regularity, being - consciousness, matter - spirit, soul, movement - development, development - evolution, time - space, quality - quantity, essence - phenomenon, purpose - result, purpose - meaning.

Axiological the method is an analysis of state and law as specific values with the help of which social group or society as a whole regulate the appropriate behavior of people. Recently, the pragmatic approach has been used by supporters of the dialectical-materialist method, but in a new liberal interpretation.

Philosophical methodology– philosophical ideas, provisions, methods, principles that are used for knowledge in all sciences (the principle of development, contradictions).

Methodological role of philosophy:

– within the framework of philosophy, a general doctrine of method is developed - the theory of methodology. Here, both general approaches, for example dialectical, and specific philosophical methods are formed: analysis and synthesis, qualitative and quantitative analysis, historical and logical methods, formalization and meaningful study, abstraction and concretization, comparison and generalization, disclosure of cause-and-effect relationships, etc. P.;

– philosophical knowledge is the basis for the formation of general scientific and private methods of the general theory of law and state.

General scientific methods apply different sciences, taking into account the specifics of each subject. These include methods of comparison, systemic (structural) approach, analysis and synthesis, induction and deduction.

General scientific methodology is the doctrine of the principles, methods and forms of knowledge that function in many sciences. These methods correspond to the subject and object of research, - empirical research methods(observations, experiment) – general logical methods(analysis, synthesis, induction, analysis, etc.)

General logical methods of legal cognition are a set of intellectual techniques for achieving true knowledge about the reality being studied. These include:

– deduction (from the general to the particular) and induction (from the particular to the general);

– analysis (dividing into parts) and synthesis (combining into a whole);

– reasoning by analogy by contradiction;

– proof from the absurd;

– abstraction (distraction from the unimportant in order to highlight the essential).

General scientific methods determine only general approaches to solving problems of legal science. Therefore, along with them they are used private scientific methods, which allow you to gain specific knowledge on issues of state and law.

At the level of general scientific knowledge, traditional methods of knowledge of reality are used: the system method, analysis and synthesis, induction and deduction, the method of historicism, functional, hermeneutic, synergetic, etc. They do not cover all scientific knowledge, like philosophical methods, but are used only at its individual stages .

Private scientific methods are developed and applied only by one separate science, in this case – jurisprudence, including the general theory of state and law. This refers to such special legal (formal legal) research methods as comparative legal, structural legal, interpretation of legal norms.

Private scientific methodology is based directly on research methods and technical techniques.

Despite all the scientific and practical dependence of this gradation of scientific techniques and methods of research, it is to a certain extent conditional, since the methods are used in interaction and interdependence. Thus, the philosophical, worldview method is not realized by itself, but through general and particular methods. The latter give the desired effect only if they are based on a certain ideological basis. Particular scientific methods, in addition, are formed and implemented on the basis of and taking into account the requirements of general methods. For example, the method of interpreting legal norms involves the use of comparison techniques, formal logic, system-structural analysis, etc. .

Special methods are developed and used by special sciences, but are widely used by others, including legal ones. These are mathematical, statistical, concrete sociological, formal logical, cybernetic, psychological and other methods. They are important for obtaining reliable knowledge about the state and law at certain stages of the research.

Special scientific methods should also include methods that allow one to develop new knowledge about law and the state (for example, interpretation of legal texts and norms).

Since these kinds of special methods have become widespread and have therefore acquired a general character, they are often not separated from general methods.

Recently, legal science has begun to turn its attention to other scientific achievements. It's about that the interdisciplinary boundaries of scientific knowledge are a rather conditional, albeit objective, thing. Legal science cooperates with many branches of knowledge. And in this regard, interaction with technical sciences is especially important for her.

With the intensive, “breakthrough” scientific, technical and information development of society, a change occurs in the legal life of people. Law, using information and communication technologies, becomes so-called “virtual law” or “virtual space law,” changing its form, source and content. As a result, new scientific knowledge appears in this area - legal cybernetics. In fact, law becomes “elusive” and “invisible”, a more subtle “information” tool for regulating social interaction, taking into account the psyche of people and the influence of information on it

The methodology of legal science includes two tasks:

1) identify and comprehend the driving forces, prerequisites, foundations, patterns of growth in the functioning of scientific knowledge, cognitive activity.

2) organize design and construction activities, its analysis and criticism.

Modern methodology solves the following problems (tasks):

1. Enrichment of methodological tools and study of reality.

2. Development of a new understanding and attitude towards symbolic systems of understanding.

3. Determination of the specifics of the anthropological-psychological approach to knowledge.

4. Connection, interdependence in the practice of cognition, mental activity and reality, the formation of a certain integrity.

5. The connection between a person’s thinking potential and his reality, the laws of reality.

Methodology performs the function of a cognitive strategy. It must substantiate and look for promising directions of knowledge, protect against incorrect use of methods

Thus, methodology is the defining beginning of the process of cognition, a system of general theoretical requirements that are implemented in a complex of specific requirements and techniques of scientific knowledge and explanation of objects of social reality. As the main general scientific methodologies of modern theory public policy and management are activity-based, systemic, structural-functional, cybernetic, situational, conflictological approaches.

Each science has not only its own subject of study, but also specific methods his knowledge. The effectiveness of scientific activity directly depends on the degree of methodological development.

Method is the path of scientific knowledge and establishment of truth, leading from object to object, from primary sensory knowledge about law and state to theoretical, conceptual and legal knowledge about these objects.

Science is based on certain facts and the set of methods of cognition used. The system of methods of scientific knowledge of the theory of state and law includes general, general scientific, special scientific and special methods.

The social significance of the methodology of legal science, in fact, as well as science itself as a whole, its component parts, is determined by the useful and significant result that they bring for people and their communities. Methodology, in essence, is a way of thinking of a person and society, which makes it possible to improve not only the very ideas about the world and legal processes and phenomena, but also to actually improve social life based on the objective principles of existence.

Topic 11. Basic methods of legal science

The formation of the methodology of legal science is historically determined by the development of the practical activities of society, its accumulation of experience of legal life in various spheres of life and, as a result, by the development of public consciousness, its legal way of thinking. The history of ideas about law, its comprehension, interpretation and knowledge has followed approximately the same path as the history of science as a system of knowledge as a whole. As a rule, the following stages are distinguished in it: philosophical-practical, theoretical-empirical and reflexive-practical. The first period covers the legal thought of antiquity, the Middle Ages and a significant part of the modern era, while the second and third periods mainly occur at the end of the 18th and 20th centuries.

In general, the evolutionary (gradual) development of law, the improvement of legal activity, lawmaking and legal technology, and at the same time the critical understanding of the created and functioning law was marked by the emergence of a special type of social activity - scientific and doctrinal, aimed at understanding the general laws of legal life and the evolution of law . This circumstance, in turn, gave a direct impetus to the emergence of the foundations of the methodology of legal science as a section of legal knowledge engaged in the development and application of certain methods of studying law and legal reality.

To solve scientific problems, many methods are used, which can be classified in different ways. The most common basis of classification is degree of generality. In legal science, it is also customary to divide methods into four levels: philosophical (worldview), general scientific (for all sciences), special scientific (for some sciences) and special (for individual sciences).

Formal-logical and general scientific methods of scientific knowledge are of particular importance for legal science.

Among the general logical methods of cognition, the methods of formal logic are distinguished:

· analysis is a method of mentally dividing the object under study into certain elements with the aim of in-depth and consistent knowledge of them and the connections between them;

· synthesis is a method of mental reconstruction of the whole based on the known parts and their relationships;

· abstraction is a mental separation of individual elements, properties, relationships of an object and consideration of them in isolation both from the object as a whole and from its other parts;

· concretization – correlation of abstract ideas and concepts with reality;

· deduction is a reliable conclusion from knowledge of a greater degree of generality to knowledge of a lesser degree of generality;

· induction is a probabilistic conclusion from knowledge of a lesser degree of generality to new knowledge of a greater degree of generality;

· analogy – a conclusion about the belonging of a certain feature to the subject being studied based on similarity in essential features with another subject;

· modeling is a method of indirect cognition of an object using its model.

The systemic method is the study of state and law, as well as individual state-legal phenomena from the position of their existence as integral systems consisting of interacting elements. Most often, the state is considered as a set of components such as people, power and territory, and law is considered as a system of law, consisting of spheres, industries, institutions and norms of law.

In legal science there are a number of provisions, categories, structures and directions (scientific schools), which are dogma, i.e. generally accepted and recognized by all lawyers and jurists. For example, such concepts and legal structures as a system of law, a rule of law, a system of legislation, a form of law, a source of law, the effect of law, a form of implementation of law, a mechanism of legal regulation, law in an objective sense, law in a subjective sense, legal relationship, subjective legal rights and responsibilities, etc., are generally accepted and interpreted essentially the same way for everyone.

The legal-dogmatic (formal-dogmatic) approach allows us to consider law as a sociocultural phenomenon and understand it as a system of fundamental legal provisions, rules and structures, means and methods of legal regulation, forms and concepts of legal activity, etc., formed in the process of historical development of law and embodied in specific legal systems that are established by the state.

The synergetic method is a view of phenomena as self-organizing systems. From the creative potential of chaos, a new reality, a new order, emerges. In legal science, synergetics considers the state and law as random and nonlinear, that is, specific historical and variable social phenomena. The state and law are constantly changing, as they are determined by many different reasons, factors and options for possible events.

etc.). It includes observation of socio-legal phenomena, quantitative data processing, their analysis and is used in the process of studying phenomena characterized by mass, repeatability and scale.

The cybernetic method is a method associated with the use of concepts (“input-output”, “information”, “control”, “feedback”) and technical means of electronics and computer technology. This method is used for automated processing, storage, retrieval and transmission of legal information.

Over the course of many centuries, numerous attempts have been made to interpret legal texts of a sign-symbolic nature. The need to interpret these texts is due to the following reasons:

· the ambiguity of legal monuments and texts, depending on the obsolete words contained in the law and archaic text, or on the fact that the expression used by the law is grammatically equally susceptible to two different interpretations;

· specificity in the presentation of legal texts (doubts in the understanding of the law sometimes arise from the fact that when presenting the law, instead of the general principle, the legislator presents individual, specific objects of the law);

· uncertainty of the law (sometimes doubts arise due to the use by the legislator of general, insufficiently defined expressions); uncertainty of quantitative relations in the law;

· contradictions between different texts of the law;

· interpretive fences around the law;

· changes in living conditions (the main motive that prompted teachers of the law to interpret the text, and quite often in contradiction with its direct, literal meaning, were changes in the cultural structure of people's life, as well as changes that occurred in the ethical views of the people on human personality, etc. .).

The purpose of modern legal hermeneutics is, after all, to search and realize the meaning of a legal text, to study the problems of multiple meanings and interpretation. In modern conditions, the form of law cannot act other than a sign form, the source and embodiment of which is language. Legal regulation and its elements act as ideal objects, an external form of expression of social consciousness, which is subject to understanding and application.

Method TLP is a special component of legal science and has its own content, different from the theory of law. It consists only of rules, principles of knowledge. These rules and principles are not formulated arbitrarily, but on the basis and in accordance with the objective laws of the subject of research, reflected in the concepts and categories of science. Any method used in the theory of state and law contains requirements and rules that take into account the specifics of the state or law. Thus, in the comparative legal method, a specific expression is obtained general principles comparisons.

The subject of knowledge determines the methods of research.

**The theoretical-conceptual apparatus can be used as an objective basis for methods of scientific knowledge, then it realizes its methodological function.

Rules, principles of knowledge, applied at any one stage of scientific knowledge or to solve one cognitive problem, together form a separate specific method. Thus, the rules used in the process of interpreting legal norms in their system form a method of interpreting legal norms, rules regulating the process of obtaining general knowledge from individual facts - induction.

Classification of methods according to Raw:

1) universal philosophical method. Its universality is expressed in the fact that this method is used in all specific sciences and at all stages of scientific knowledge;

2) general methods- analysis, synthesis, abstraction, system-structural approach, ascent from the abstract to the concrete, which, like the philosophical method, are used in all concrete sciences, but the scope of which is limited to solving certain cognitive problems;

3) special methods of legal science. They consist of methods and techniques that were initially developed by representatives of non-legal sciences and then used by lawyers to understand political and legal phenomena. These are statistical, concrete sociological, psychological, mathematical methods;

4) private methods of legal science. They were developed by lawyers to understand political and legal phenomena and can only be used within the framework of legal science. These include methods of interpretation of law, comparative legal method and some others.

Common classification of methods:

1. Universal - the method of dialectical materialism is used in all sciences, at any stage of scientific research. It proceeds from the fundamental ideas that the world as a whole, including the state and law, is material, exists outside and independently of the will and consciousness of people, i.e. It is objective that the surrounding reality and the patterns of its development are accessible to human knowledge, that the content of our knowledge is objectively predetermined by the existence of the real world around us, independent of people’s consciousness.

2. General scientific - these are those that are used in all or many branches of science and apply to all aspects and sections of the relevant science. Among them, the following methods are usually distinguished: logical, historical, system-structural, comparative, methods of concrete sociological research.

3. Special = specific = private scientific. - are characteristic of specific branches of scientific knowledge, with their help it is possible to achieve a certain deepening of knowledge of state and legal phenomena. They enrich the general and general scientific methods, specifying them in relation to the peculiarities of the study of political and legal reality.

Method- a set of techniques, methods by which this subject is studied.

Methodology legal science is the doctrine of how, in what ways and means, with the help of what philosophical principles it is necessary to study state-legal phenomena, it is a system of theoretical principles, logical techniques and special research methods determined by the philosophical worldview, which are used to obtain new knowledge, objectively reflecting state and legal reality.

1. There is a point of view (D.A. Kerimov) that methodology is an integral phenomenon that combines a number of components: worldview and fundamental general theoretical concepts, general philosophical laws and categories, general and particular scientific methods, i.e. not only a system of methods but also a teaching about them. Therefore, it cannot be reduced only to the doctrine of methods. In addition, methodology is not reduced only to its constituent components, it has its own patterns of development - methodological components interact with each other, and therefore acquire properties different from their individual existence: general theoretical concepts permeate the worldview, universal philosophical laws and categories illuminate the boundaries of applicability general and specific scientific research methods. The relationship between method and methodology is like a dialectical relationship between the whole and the part, the system and the element.

Methodology is not an independent science; it only “serves” other sciences.

2. V.P. Kazimirchuk interprets the methodology of legal science as the application of a system of logical techniques and special methods for studying legal phenomena based on the principles of materialist dialectics.

3. From the point of view of A.D. Gorbuzy, I.Ya. Kozachenko and E.A. Sukharev, the methodology of legal science is a scientific knowledge (research) of the essence of state and law based on the principles of materialism, adequately reflecting their dialectical development.

Ticket 2. The main methodological traditions in the history of legal science. Paradigm shift(taken from the second group)

The methodology in the science of law, its formation and historical development had a number of significant features. Since its inception in the 12th century. and up to the XVI-XVII centuries. The methods of formal logic were predominantly used, and law was practically not involved in the development of its own methods of cognition. Since the 17th century Methods of philosophical understanding of law begin to attract the attention of scientists, which leads to the formation of such a direction of legal thought as the philosophical methodology of cognition. In the 19th century with the advent of scientific (theoretical) jurisprudence, methodological research acquires fundamental importance in the knowledge of law, and in the 20th century. they are beginning to take shape as an independent area of law.

In the 70-80s of the XX century. sociological and statistical methods. In general, means of knowledge that do not have philosophical status, but are applicable in most areas of science. In the 20th century Due to the emergence of the so-called metascientific areas of knowledge in the methodology of law, new research tools began to be allocated. They represent the principles, forms and procedures of inquiry used by all, or at least most, modern sciences. When turning to these research tools, the theory of state and law ensures its compliance with the modern level of development of scientific knowledge. Modern science, in general, is characterized high degree integration, and interscientific perception of research results and methods is one of the mechanisms for its development, attracting the most common research tools and methods of other sciences - necessary condition progress of any science, including jurisprudence.

Recently, a little-known method of alternatives has been developed. The method of alternatives is the solution of scientific problems by comparing and criticizing opposing theories. In relation to law, the method of alternatives is the identification of contradictions between various hypotheses about state and legal phenomena. The origins of this method are in general view- in the philosophy of Socrates: the method of revealing contradictions was called “maieutics” (help in the birth of something new). Socrates saw the task as encouraging his interlocutors to find the truth through argument, criticizing what the interlocutor said and putting forward his own hypothesis of the issue being discussed. During the discussion, all answers were recognized as incorrect and rejected one after another, new answers were put forward in their place, which in turn were also recognized as incorrect, etc. Socrates believed that truth can be found through the method of maieutics.

The developer of this method is rightfully considered to be Karl Popper (1902-1994), a British philosopher, logician and sociologist, one of the greatest thinkers of the 20th century. In 1972, his book “Objective Knowledge” was published, where K. Popper reveals the essence of the method of alternatives: it is always important to find alternatives to existing hypotheses about it in the knowledge of an object, and then, by subjecting them to criticism and thereby pitting alternatives against each other, to identify new ones knowledge about the object. “Theory is criticized from a variety of angles, and criticism allows us to identify those aspects of the theory that may be vulnerable,” he argues.

A number of researchers, in particular R.Kh. Makuev proposed the method of model systems (images). He believes that this method is productive not only in law enforcement, but also in the study of subjects of social and exact sciences. The method of model systems (images) assumes that “logical scientific constructions arise on the basis of virtual (ideal) images in the mental process, which are then photographed by the subconscious, and instantly the final virtual system of models (images) is addressed to memory, in which it is stored (preserved) until until it is required by some social signal (the need for written or electronic reproduction, exchange of oral information, practical activity, etc.).”

Modern law, which has extensive methodological tools, cannot ignore those theoretical developments, which appeared thanks to this relatively new one that developed in the second half of the twentieth century. scientific direction, such as synergetics. Having originated in the depths of natural science, synergetics soon came to the attention of representatives of various sciences, including philosophy, sociology, political science, and law.

Synergetics emerged as an independent scientific direction in the second half of the twentieth century. The term synergetics translated from Greek means “joint action.” Having introduced it, Hermann Haken put two meanings into it. The first is the theory of the emergence of new properties in a whole consisting of interacting objects. The second is an approach that requires the collaboration of specialists from different fields for its development.

The ideas proposed by synergetics concern not only individual special cases in the field of physics and chemistry, but also ideological foundations in general, are associated with the transition from a mechanistic picture of the world to the world of self-regulation and self-organization, characterized by multivariate (nonlinear) possible development, and are capable of bringing legal science to a new higher level of knowledge.

Synergetics should not be reduced to the science of the role of chance in evolutionary development, of random processes (the attitude towards which in the modern theory of state and law, based on dialectical materialism, is quite unambiguous).

First of all, synergetics studies self-organizing processes occurring in complex open systems.

The complexity of a system is determined by its internal structure (including various subsystems that function, including according to their own laws), as well as the irreversibility of development (i.e., the impossibility of bringing the system into exactly the same state as the original one). The openness of the system means that it can exchange energy and matter with the outside world (do not forget that initially we were talking about chemical and physical processes, and in relation to society this can be any factors that influence its development, for example, information) .

First, it is necessary to answer the question whether complex open systems? Are there any among the objects of study of the theory of state and law?

In the state-legal sphere, we are constantly faced with aggregates that are systemic in nature and include a number of fairly independent components (subsystems), developing, including according to their own internal laws. In addition, due to the constant interaction of most of these systems with the outside world, with various areas life of society, they are open (from the point of view of synergetics) in nature. As for the time criterion, the forward, and therefore irreversible, movement of society, and therefore of state and legal phenomena, seems obvious. Moreover, complex open systems include not only those state-legal phenomena that modern theory states and law are characterized as systems, for example, the legal system (including, along with other components, the system of law and the system of legislation and is the most a clear example complex and open system). These are also those phenomena that can be considered as components (subsystems) of more complex (not necessarily state-legal) associations, the life of which also proceeds according to the laws of self-regulation. For example, political, legal, economic systems are elements of society as a whole (as the totality of all existing connections). From this point of view, both the state and law can also be considered as primary components of complex open social systems.

Thus, if there are complex open systems in the state legal sphere, then in their development and functioning they will also obey the laws of self-organization.

Moreover, the analysis of a number of state and legal phenomena from the standpoint of synergetics is original and can give very interesting results in terms of interaction, mutual influence of these phenomena on each other, and, perhaps, answer existing questions in science. In this regard, Yu.Yu. Vetyutnev’s attempt to study the legal system using synergetics seems very interesting.

A.B. Vengerov believes that synergetics “offers A New Look on the relationship between necessity and chance, on the role of chance in biological and social systems.”

It can lead to a paradigm shift in science and claim to be a “worldview approach that includes dialectics as a particular method.” Consequently, neglect of synergetics can lead to legal science lagging behind modern life, from the new picture of the world.

In this regard, the assessment of synergetics by philosophers is very interesting. Thus, E. Knyazeva and S. Kurdyumov point out that “synergetics can act as methodological basis for prognostic and management activities V modern world", emphasizing that the use of synergetics will make it possible to make a transition to non-linear (and, therefore, multidimensional) thinking, promoting the convergence of the traditions of the West (with its linearity) and the East (with its holisticity), characterized by integrity and the ability to choose options.

At present, given that synergetics is in the process of development and even in the field of natural science it has many opponents, one cannot count on its unconditional acceptance by all legal science, but it is necessary to keep it in mind when studying law. There are a number of reasons for this:

Firstly, the use of a synergetic approach can help to take a fresh look at state and legal reality as a whole, at the role and value of the state and law in the life of society.

Secondly, the use of synergetics to implement the predictive function of the theory of state and law seems no less important. The limits of legal influence, the content of law and the determination of optimal options for legal regulation of certain relations, taking into account the self-regulation of the relevant systems, can also be studied through the prism of synergetics.

Thirdly, synergetics makes it possible to overcome the limitations (and sometimes artificiality) of classical mechanics - the ancestor of the series modern methods research, in particular, dialectical with its rigid determinism and linearity of thinking, as well as cybernetic. The criticism undertaken will help to look at the use of traditional methods of the theory of state and law from a different perspective.

Ticket 3. Materialistic and idealistic methods in the history of legal science (also for the second group)

Being a generalizing category of all sciences, covering the study of all objects of the surrounding reality with a unified system of concepts, principles, laws and categories, philosophy acts as the ideological basis for the knowledge of all phenomena of nature and society. It represents a kind of key to research, including state and law. Only by using such dialectical categories as essence and phenomenon, content and form, cause and effect, necessity and chance, possibility and reality, can one correctly and deeply comprehend and analyze the nature of many state and legal phenomena. The universal philosophical method - the method of dialectical materialism is used in all sciences, at any stage of scientific research. It proceeds from the fundamental ideas that the world as a whole, including the state and law, is material, exists outside and independently of the will and consciousness of people, i.e. It is objective that the surrounding reality and the patterns of its development are accessible to human knowledge, that the content of our knowledge is objectively predetermined by the existence of the real world around us, independent of people’s consciousness. The materialistic approach determines that state and law are not self-sufficient categories, independent of the surrounding world, not something invented by great thinkers and rulers, that their essence is objectively predetermined by the socio-economic system of society, the level of its material and cultural development.

The essence of the dialectical approach to scientific research, substantiated by the great German philosopher G. Hegel and further developed by K. Marx and F. Engels, in relation to jurisprudence means that state-legal reality should be studied in close connection and interdependence with other phenomena of the economic, political and spiritual life of society (ideology, culture , morality, national relations, religion, mentality of society, etc.), that the elements of the political and legal superstructure do not stand still, but change all the time, are in constant motion, that the principle of historicism, the constant dynamics of the development of the essence of the state and law, their transition through the gradual accumulation of quantitative changes from one qualitative state to another - these are the necessary laws of human cognitive activity.

Dialectics presupposes a constant struggle between the new and the old, the obsolete and the emerging, the negation of negation as stages in the movement of the elements of nature and society (the present rejects certain elements of the past, and the embryos of the future, in turn, deny the unjustified present), the understanding that there is no abstract truth, it is always specific, that the truth of the conclusions of science is verified by practice, that the law of the progressive development of all elements of the reality around us, including the state and law, is the unity and struggle of opposites.

Ticket number 4. Metaphysics and dialectics in the history of legal science.

Metaphysics is what comes after physics - this is what the philosophy course at Plato’s Academy in Athens was originally called in the 6th-5th centuries BC. As a method, it discovered itself in the philosophy of the Middle Ages in the works of Augustine the Blessed and Thomas Aquinas. Ideas of immutability, static nature of the world created by God. The Creator is declared to be the source of non-existent changes.

Flaws: 1) dogmatism – reliance on church dogma, inability to creatively analyze existence; 2) eclecticism – unsystematic thinking, inability to apply the most effective method of analysis; 3) sophistry - strives to emphasize one of such a number of approaches, but, as a rule, mistakenly replaces an effective method with an ineffective one.

In the 18th-19th centuries, metaphysics allowed the recognition of variability, i.e. recognizing the importance of smooth, incremental change. + accepts social reforms; - reject the revolution.

Metaphysics knows what cannot be known by other knowledge (religion).

Dialectics is the ability of scientists to conduct scientific debate.

Dialectics is the science of the most general laws of development of nature, society and thinking.

Ancient dialectics is a “spontaneous” phenomenon.

Gradually, the dialectical method is becoming more and more intertwined with the development of science.

3 laws of dialectics:

1. Unity and struggle of opposites (clarification of the main contradiction);

2. Transition from quantity to quality (change in a revolutionary way. The quantity of changes turns into quality);

3. Negations of negation - the movement of law through the negation of its forms, each new negation is a dialectical negation of it. A grain thrown into the ground undergoes complete negation of the stem; negation of the stem means a return to the previous state (ear) and a return to the previous state, but the retention of everything positive that was in the first negation.

An illustration of the materialist method of cognition is the Marxist theory of law.

An illustration of the idealistic approach is Hegel's understanding of law as freedom (freedom of conscience, protection of property and punishment for violations).

Principles of dialectics:

1) General connections (in the garden there is a bead - in Kyiv - a guy)

2) Law has form, content and reasons for its occurrence

Dialectics is the most perfect tool in the knowledge of state and law

The main contradiction is the contradiction between law and public life.

Ticket 5. Jusnaturalism and Juspositivism in the understanding of the right to different stages development of legal science. (for the second group)

Natural law approach. You need to know the periodization (editions): ancient (Ulpian and Cicero, you need to know the representatives and definitions) in which natural law was likened to the law of nature; medieval, theological or Christian (Thomas Aquinas) in which the binding nature of natural law follows from the God-created nature of things, being, or from the God-created nature of man. Paul's message - conscience is a natural law, established even in the hearts of the pagans; Modern times (17-18 centuries) individualistic, rationalistic (Hugo Grotius, Immanuel Kant, Samuel Pufendorf, John Locke, etc.) in which natural law is identified with human rights and freedoms, which were derived by reason from rational human nature; revived natural law (after the Second World War and in the 20th century - in two stages) (P.I. Novgorodtsev, E.N. Trubetskoy, in Germany Rudolf Stammler, Gustav Radbruch, USA Lon Fuller - Polyakov does not agree). At this stage, Natural Law is a historically changing set of moral requirements for subjective law. That is, law is identified with morality - the main reproach. Here the idea of natural law as an inviolable right is completely destroyed. Trubetskoy argued with Novgorodtsev about this. He said if this is a criterion, an ideal, then how can it be changeable? It's like a meter with varying length or a kg with varying weight. It is necessary to present the advantages and disadvantages of each approach, as well as the features at each stage of development. What all stages have in common: 1) natural law as perfect law is always opposed to positive law (in theory, the dualism of natural and positive law), that is, you need to understand that they logically mutually presuppose each other, like north and south. 2) common to all except the last one. Law is endowed with the property of constancy and immutability. 3) natural law is universal, in the sense that (Hugo Grotius) is equally suitable for all times and peoples. It has the property of sociocultural significance (universal). The shortcomings are formulated by the historical school of law, and in particular by the head of F.K. von Savigny, and another representative G. Pucht.

The historical school was formed in the 19th century. Disadvantages of natural law: 1) it is ahistorical, because it is derived from reason and it performs the function of a historically established legal order. 2) Natural law is a subjective construction, a product of the individual mind, and therefore subjective. 3) the a priori nature of natural law, since natural law is in no way related to the social life of society, it is rational, but has nothing to do with life. 4) if both natural and positive law are still law, then they are like types of the generic concept of law, then they must have something in common that allows them to be classified as a genus of law. But they concluded that natural law is a phenomenon different from positive law.

Advantages: 1) the natural law approach, perhaps for the first time, indicates that the existence of law is not limited exclusively to state-established forms, it is not reducible only to the order of the sovereign, another thing is that they could not determine the boundaries of law, but that law cannot be identified with the order of the sovereign. 2) he identifies in the law its value component, it’s another matter that he absolutizes, but the fact that there is a value component in the law is clearly shown. Positive law in social sense will act when it corresponds to certain basic values of public culture.

Legal positivism or legal statism

Usually an equal sign is placed between them. For now, we will do the same, although positivism is broader. It was formed in the second half of the 19th century, although the dominance of this approach was historically prepared in advance by the process of codification in Europe. Positivism is framed as scientific theory thanks to the emergence of its own scientific method. First, philosophical positivism appears, which becomes the basis for the emergence of legal positivism. The representative of PHILOSOPHICAL positivism is Auguste Comte. Feature: jurisprudence must be an experimental science, that is, based on experimental facts that can be observed. It must be a descriptive science and a classifying science, that is, it observes, describes and classifies various facts, grouping rules of law into groups. That is, jurisprudence as factual material, in the role of which norms act. This method is called dogmatic. Signs of law in positivism: 1) official establishment, 2) formalization, that is, all law is expressed in forms established by the state, 3) state coercion. Law is a set of norms established by the state and protected by its coercive force. Advantages: 1) development of the normative aspect of law, 2) development of all legal terminology, 3) various structures, techniques and principles of interpretation of law. And there are so many shortcomings, but despite the fact that many critical statements have been made, he is invincible. Disadvantages: 1) it denies the legal nature of social law, that is, law in the creation of which the state did not take part, that is, canon law. Positivism cannot provide a logically consistent explanation of the legal nature of international law and constitutional law. 2) he excludes from his consideration questions about the fairness of the law. They consider this a metaphysical question. Any order of the sovereign is a right. 3) the rule of law as the goal of the action of law is considered in positivism exclusively as a result exclusively achieved by efforts state power which operates primarily through coercion. 4) the statist definition of law contains a logical defect, that is, the definition of something through the same thing. Initio per idem. Law (x) - A set of norms established in the form prescribed by law (x), created in accordance with the law (x) by the bodies of the state, which itself is a legal (x) union. 5) it is logically impossible to justify coercion as the main property of law. There is a norm x1. It will be legal only if there is x2, which provides for a sanction for failure to fulfill x1. X2 will be…..x19. We don’t find x20 with a sanction for non-fulfillment of x19. This means x19 is not a legal norm, which means that the rest will not be legal. Hans Kelsen (normativeist) understood this and said that one must simply postulate the existence of a basic norm that ensures the legal nature of other norms. He gave an example. Father, you must go to school. Baby why should I?. Father because I am your father. Son why should I listen to you. Father because it is commanded by God. Son why should I listen to God. This norm cannot be questioned. That's why there is a constitution and laws. The Constitution cannot be questioned. Representatives: John Austin, Jeremy Bentham, in Russia Shershenevich, Herbert Hart, Hans Kelsen, but with the amendment that he does not have a statist point of view (for him, law is a hierarchy of norms, but this order is not always established by the state), Baitin in ours time.

There are 3 basic laws of dialectics:

Unity and struggle of opposites, which lies in the fact that everything that exists consists of opposite principles, which, being united by nature, are in struggle and contradict each other (for example: day and night, hot and cold, black and white, winter and summer, etc.); - the transition of quantity into quality, which lies in the fact that with certain quantitative changes quality necessarily changes, while quality cannot change indefinitely, there comes a moment when a change in quality leads to a change in measure - to a radical transformation of the essence of the object; - negation of negation, which lies in the fact that the new always denies the old and takes its place, but gradually it itself turns from new into old and is negated by more and more new

The highest semantic constructs that generalize the content of dialectics are its principles.

Principles are the most fundamental scientific ideas that combine a reflection of the objective laws of existence and ways of using them by the subject in cognition and activity. For example, the dialectical principle of development states that development is a natural process inherent in any object of reality and, at the same time, that deep, true knowledge of an object is impossible without taking into account and studying the process of its development. As already noted, the main principles of dialectics are the principles of universal connection, development, contradiction, and systematicity. The highest of these principles is the principle of consistency. Three other principles, having independent significance, simultaneously characterize the main aspects of systematicity: the principle of connection - characterizes the structural aspect, the principle of development - dynamic, the principle of contradiction - the sources of systemic action and systemic movement. The principle of universal connection is the starting point in the development of the content of dialectics. As noted, this is due to the fact that connectivity and interaction is the substantial basis of being. Without connectivity and interaction of objects, development and consistency would be impossible. The inconsistency of objects is also an essential form and manifestation of their coherence.

The main principles of dialectics are:

The principle of universal connection,

Systematic principle;

The principle of causality;

The principle of historicism.

Universal connection means the integrity of the surrounding world, its internal unity, the interconnectedness of all its components - objects, phenomena, processes;

Connections can be:

External and internal;

Direct and indirect;

Genetic and functional;

Spatial and temporal;

Random and natural.

The most common type of communication is external and internal. Example: internal connections of the human body as biological system, external connections of a person as elements of a social system.

Systematicity means that numerous connections in the surrounding world exist not chaotically, but in an orderly manner. These connections form an integral system in which they are arranged in a hierarchical order. Thanks to this, the world around us has an internal purpose.

Causality is the presence of such connections where one gives rise to another. Objects, phenomena, processes of the surrounding world are conditioned by something, that is, they have either an external or internal cause. The cause, in turn, gives rise to the effect, and the relationships in general are called cause-and-effect.

Historicism implies two aspects of the surrounding world:

Eternity, indestructibility of history, the world;

Its existence and development in time, which lasts forever.

Categories are the most general and fundamental concepts of science. For example, the categories of physics include such concepts as force, energy, charge, mass, quantum, etc. The dialectical categories include such concepts as contradiction, connection, development, system, necessity, chance, law, essence, phenomenon, etc.

Essence and phenomenon;

Cause and investigation;

Individual, special, universal;

Possibility and reality;

Necessity and chance.

The categories of dialectics are often paired, for example: “phenomenon” and “essence”, “necessity” and “accident”, “cause” and “effect”, “form” and “content”, “general” and “individual”, “ possibility" and "reality", "system" and "element", "structure" and "function", "whole" and part", etc. This indicates that, as elements of dialectics, most of its categories act as a manifestation of the law of contradiction. The laws of dialectics act as universal, necessary, essential, stable and repeating connections in nature, society and human thinking.

The law of inconsistency applies to any pair of dialectical categories. For example, “phenomenon” and “essence” are inextricably linked and do not exist separately from each other. There is a phenomenon outer side of an object, which is reflected by a person in sensory images, and the essence is the internal side of an object, inaccessible to sensory contemplation and comprehended only through thinking. Every phenomenon carries its own essence, and every essence manifests itself in a number of phenomena. For example, a person’s character (essence) is manifested in his actions. The essence is the basis of the phenomenon, which defines and explains it, but it does not exist somewhere along with the phenomenon, but is present in it itself - this is the unity of opposites.

Necessity and chance appear as opposites only within certain limits; beyond them, the same event can appear as necessary in one respect and as accidental in another. Necessity is the most important characteristic of the laws of development of natural, social and mental processes. There are no so-called “pure” accidents, since the accidental in a certain respect is always necessary. Often, “pure” randomness is misunderstood as causeless, but in fact, everything in the world is causally determined. Necessity is the dominant side of this contradiction, since chance is a manifestation of necessity. Just as the essence “manifests” itself in phenomena, and the general - in the individual, necessity does not exist “in its pure form”; it makes its way through a mass of accidents, taking one form or another. This is especially obvious in statistical patterns. Chance acts as a form of manifestation and addition of necessity, enriching it with specific content. Often random events can occur at the intersection of necessary cause-and-effect relationships of different orders. This explains, for example, the variety of so-called “accidents” that unexpectedly changed a person’s fate.