Methodology as a science about principles, forms, methods of cognition objective reality. Structure and levels of methodology: scientific paradigms, philosophical foundations of science, concepts, theories, principles, axioms and methods of cognition. Classical, non-classical and post-non-classical paradigms of science and their features in the knowledge of legal problems. Development of methodology legal science.

Features of modern methodology. Humanistic orientation. Methodological pluralism. Rational and non-rational methods of cognition. The relativity of the distinction between general scientific and specific scientific methods of cognition. Scientific approach to the study and resolution of problems of the general theory of law. Taking into account universal human and civilizational values ​​and ideals as a principle for the study and scientific resolution of legal problems.

A general philosophical approach to the study of problems of the general theory of law. Idealistic and materialistic understanding of the essence of law, its reflection in the corresponding theories of law. The reasons for the emergence and opposition of these types of understanding. Dialectical and metaphysical methods of knowledge of law.

Formational and civilizational approaches, deduction and induction in the knowledge of law. Features of dogmatic and normative ways of studying law.

Logical, concrete-historical, historical-comparative, comparative, analytical, systemic, functional, structural-functional, concrete-sociological, statistical and other methods of knowledge of law.

System analysis. Open and closed systems. Identifiable and modeled systems. Mechanical, self-regulating, self-developing systems. State and law as system objects. Synergetic approach to knowledge of law. The state as a unique historical self-developing subject, located in conditions of unpredictable external influences and striving to streamline them within the framework of achieving its own goals. Law as a self-regulating system with the help of which the state achieves its own goals and transforms external conditions.

Modeling, experiment and other private methods of studying law.

System sociological methods studying law: questioning, interviewing, personal, including participant observation.

Methodology (epistemology) of the general theory of law – theory of knowledge of the essence and content of law as complex and important social phenomena. This is that part of the science of the general theory of law, the subject of which is the process of knowledge of law, and not individual particular forms of their manifestation. It reveals the essence of the cognitive process, its mechanism, possibilities and boundaries of knowledge. The most important problem methodology - the relationship between knowledge about the state, law and state-legal reality and closely related questions about the truth, ways, forms and means of achieving it.

The structure of the methodology of the general theory of law includes elements:

· item;

· initial foundations, fundamental concepts, categories, principles, laws, axioms, etc.

· idealized object of this theory;

· logic and methodology used to construct it;

· philosophical foundations and value factors;

· a set of laws and statements derived from the basic provisions of this theory.

Subject of methodology (epistemology) of law– process scientific knowledge(research) and descriptions of the most general patterns of the emergence, development and functioning of the object itself, that is, law.

Scientific knowledge is a special sphere of human cognitive activity, based on the assumption of the existence of a real, independent of the subject of knowledge of the objective world, all processes and phenomena of which are subject to laws accessible to knowledge with the help of feelings and thinking. How highest form knowledge and a special type of creative spiritual activity of people, science (Greek episteme, Latin scientia) appeared in modern times, in the 16th–17th centuries. The term “science” was coined in 1840 by Cambridge University professor W. Wevill.

The goal of any science, including the methodology of the general theory of law, is to comprehend the truth and discover objective laws (regularities), confirmed by practice. Patterns– connections (objective, essential, concretely universal, internal, repeated for a long time, stable) between the state and law and other social phenomena. Let us highlight the following patterns:

· state and law – products society;

· state and law arise inevitably at a certain stage of development of society;

· state and law (positive law) arise simultaneously they are genetically related, the reasons for their appearance are the same;

· state and law develop in close connection for a long time;

· state and law are closely related related to other social phenomena(economics, politics, ideology, morality, religion, etc.);

· as the law of their connection develops are supplemented, expanded, modified, arise new connections, some old connections disappear, etc.;

· state and law act as an element of the culture of society, they represent the greatest social value, because by regulating public relations, law regulates the behavior of people in society, and the state protects and protects them in the interests of the stable functioning of society.

Functions of the methodology. The methodology (epistemology) of the general theory of law as a special science performs the following functions:

· empirical-descriptive – description of the phenomena of state legal reality: government bodies; legal acts (regulatory, law enforcement, law enforcement, legal documents, legal facts, etc.);

· explanatory – identification of essential logical connections and relations of law, disclosure of the essence of the explained object;

· prognostic – meeting the current needs of people. Thanks to this function, the theory of law as a science is in demand in society.

In the process of cognition of law, the content of their laws, formation, development and functioning are revealed through the categories: “state power”, “state form”, “state mechanism”, “natural law”, “positive law”, “subjective law”, “rules of law” ", "legal relations", "application of law", etc.

In the “Methodology of the General Theory of Law,” as in any science, the object of research is idealized. Knowledge about it is not an exact copy of state legal reality. They reflect the most general, essential properties, relationships and connections. An adequate reflection of state legal reality is the truth .

Truth is achieved through cognitive methods. Currently, a system of principles, methods, logical techniques, means and methods of scientific research into the process of formation, development and functioning of law has been developed. There is no single point of view in the approach to classifying methods.

Classification of main methods. There are three groups of methods for studying law (V.I. Vlasov, D.A. Kerimov, A.F. Cherdantsev): general scientific, special and particular scientific.

General scientific methods: dialectical; methods of formal logic - analysis, synthesis, deduction, induction, abstraction.

Dialectical method(gr. dialectike - to conduct a conversation, debate) - knowledge of law in development and self-movement. It is a universal method of thinking and acting. Initially, the term “dialectics” was interpreted as the art of dialogue; at present - as an understanding of the world and a way of thinking in which objects, phenomena and processes of reality are considered in the diversity of their connections, in the interaction of opposing forces and tendencies, in change and development, self-movement, and the subject of thought is presented in the form of an organic system that reproduces conditions of its existence. Since dialectics is a system of principles, laws and categories used in all sciences, including in the epistemology of law, the dialectical method is called universal.
Varieties of the dialectical method: idealism– state and law are perceived as products of the will of God, the World Mind (objective idealism), man ( subjective idealism); materialist dialectics- state and law arose naturally, in the process of socio-economic development.

Basic principles of dialectics: universal interconnection; development; determinism; consistency; material unity of the world. The content of these principles is specified in the system of laws and categories of dialectics.

The basic laws of dialectics formulated by the German philosopher G. Hegel: the law of unity and struggle of opposites; the law of transition of quantitative changes into qualitative ones; law of negation of negation.

The main means of expressing philosophical knowledge are the following categories: “being”, “substance”, “matter”, “movement”, “development”, “space”, “contradiction”, “property”, “relation”, “quantity”, “measure” "", "negation", "connection", "action", "single", "special", "general", "part", "whole", "system".

Methods of formal logic:

· analysis(gr. analysis - decomposition, dismemberment) - a logical technique that consists in dividing the object of study (mentally or actually) into elements. Rules of law are divided into elements: hypothesis, disposition, sanction;

· synthesis(gr. synthesis - connection, combination) - a logical technique meaning the process of mental or real unification of disparate parts of an object into a single whole. For example: norms of law are combined into legal institutions; legal institutions – in branches and sub-sectors of law; branches of law - into the legal system. The purpose of the synthesis is to present law as the unity and diversity of its aspects and properties;

· induction(Latin inductio - behavior) - a logical technique that represents the movement of thought from the individual to the general; inference obtained from observations and experiments; movement of thought from facts to a general statement (hypothesis, conclusions, conclusion);

· deduction(Latin deductio - deduction) - a logical technique that consists in ascent of the process of cognition from the general to the particular, individual;

· abstraction – abstraction from a number of particular characteristics, properties, relationships of individual objects to obtain integral knowledge about objects and phenomena.

Special methods(used in some sciences):

· statistical – analysis of information characterizing the quantitative and qualitative patterns of the legal life of society. When analyzing offenses in a certain region, region, area of ​​the state, an increase in crime is revealed;

· mathematical – analysis of legal reality when determining the percentage of dangerous crimes committed in a certain area, city, or school community;

· specifically sociological – observation, survey, interview, construction of legal models, clarification of the opinions of various segments of the population of society on amendments to the Criminal Code introduced by the National Assembly of the Republic of Belarus.

Private scientific methods are used only in legal theory. V. I. Vlasov includes the following methods in this group:

· comparative law – studying the legal systems of different states by comparing (contrasting) these systems as a whole or their individual components, that is, the normative system of law, individual legal institutions, legal culture, etc.;

· legal experiment – testing legislative innovations in a particular region or region of a particular state (using a “one window” when submitting documents for the right of ownership, use land plot and etc.);

· legal forecasting – foreseeing a reduction in the growth of crime among young people on the basis of objective specific data characterizing the state and activities of young people (in a team, district, region);

· formal legal – the study of law without connection with other social phenomena when considering the structure of law.

There is another classification of methods (A.V. Malko, V.M. Korelsky, N.A. Gorbatok):

Universal, ideological, philosophical – the most universal principles of thinking: metaphysics, dialectics (materialistic and idealistic), etc.

General scientific methods of cognition– analysis, synthesis, systemic and functional approaches.

Private scientific– special (specific sociological, statistical, cybernetic) and purely legal (formal legal and comparative legal).

The authors of this classification focus on ideological and philosophical methods. However, some special methods used in the sciences (specific sociological, statistical, etc.) are unreasonably classified as private.

Doctor of Law, Professor S. G. Drobyazko divides all methods into two groups: general scientific(dialectical, metaphysical, formational, civilizational, dogmatic, normative, deduction, induction, analysis, synthesis); private scientific(historical, historical-political, genetic, historical-comparative, comparative (comparative legal), structural, structural-functional, functional, statistical, concrete sociological, logical-mathematical, cybernetic, synergetic, teleological, prognostic, etc.).

S. G. Drobyazko does not consider the essence of each method, but rightly notes that the classification of methods proposed in the general theory of law is relative. As a criterion for such a classification, the author puts forward the most general principles of knowledge of law. He presented a general description of modern methodology (which is especially valuable), which denies monopolism, is pluralistic, has a humanistic orientation, and is distinguished by free-thinking and open rationality.

There are also three levels of scientific knowledge:

· highest level– methods applied to all studied objects;

· average– interdisciplinary methods applied to several similar objects;

· lower– methods for studying one object.

Basic levels of comprehension of truth. In terms of the depth of comprehension of the essence of law, the identification of state-legal reality in legal sciences, as in any other sciences, three levels can be distinguished:

· empirical – collection, accumulation and primary, rational processing of experience data. The scientist directly examines the object. Uses methods: observation; description; measurement; experiment. The main task is to record the facts;

· theoretical – a scientist explains recorded facts using exclusively idealized objects. Uses methods: axiomatic; deductive; system-structural; functional; method of ascent from the abstract to the concrete; logical, etc.;

· organization of scientific knowledge – fundamentally different from the empirical and theoretical levels: it acts as a metatheoretical prerequisite for the theoretical activity itself in science. Explaining the third level of scientific knowledge, the American philosopher and historian T. Kuhn introduced a new fundamental methodological concept paradigm(lit. "sample"). From the position of T. Kuhn, the paradigm consists of “recognized everyone scientific advances that, over time, provide a model for problem solving and problem solving for communities." In ancient times and the Middle Ages, the “theological paradigm” prevailed; in modern times, the “natural law paradigm”; the “normative paradigm”, “sociological (realistic) paradigm”, etc. appeared.

Thus, the empirical and theoretical levels differ in the ways of ideally reproducing objective reality and in the approaches to building systemic knowledge. In criminology, when studying objects, empirical approaches predominate; in the general theory of law, explanatory methods, the logical method, etc.

conclusions

The general theory of law is a science that is fundamental in relation to other legal sciences. It generalizes and systematizes the terminological apparatus, identifies General characteristics, inherent in law, analyzes them.

The general theory of law is a general theoretical science, closely related to other legal sciences.

The most important functions of the general theory of law: ontological (determines the meaning of the existence of law in a philosophical context); epistemological (aimed at searching for new knowledge); methodological (constructs a methodology of legal scientific knowledge); ideological (promotes the formation of a certain worldview); political and managerial (provides a scientific approach to public administration).

It is necessary to distinguish the general theory of law as a science from the academic discipline of the same name.

The general theory of law uses general scientific ones (dialectical, methods of formal logic - analysis, synthesis, deduction, induction and abstraction); special (statistical, mathematical and concrete sociological); private scientific methods (comparative law, legal experiment, legal forecasting, formal legal).

• 1) Universal methods are philosophical, worldview approaches that express the most universal principles of thinking. Among the universal ones, metaphysics is distinguished (considering the state and law as eternal and unchanging institutions, deeply unrelated to each other and to other social phenomena) and dialectics (materialistic and idealistic; the latter, in turn, can act as objective or subjective idealism). Thus, objective idealism associates the reasons for the emergence and the very fact of the existence of state and law with divine power or objective reason; subjective idealism - with human consciousness, with the coordination of the will of people (agreement); materialist dialectics - with socio-economic changes in society (the emergence of private property and the division of society into antagonistic classes). From the standpoint of materialist dialectics, every phenomenon (including the state and law) is considered in development, in a specific historical situation and in connection with other phenomena.
• 2) General scientific methods are techniques that do not cover all scientific knowledge, but are used only at its individual stages, in contrast to general methods. General scientific methods include: analysis, synthesis, systemic and functional approaches, and the method of social experiment.

Analysis means the conditional division of a complex state-legal phenomenon into separate parts. Thus, many categories of the theory of state and law are formed by revealing their essential features, properties, and qualities.

Synthesis, on the contrary, involves the study of a phenomenon by conditionally combining its component parts. Analysis and synthesis are usually used in unity.

The systematic approach focuses on revealing the integrity of an object and identifying the diverse types of connections in it. This method makes it possible to consider the state apparatus, political and legal system, rules of law, legal relations, offenses, law and order, etc. as systemic entities.

The functional approach focuses on clarifying the forms of influence of some social phenomena on others. This method makes it possible to understand the functions of the state and its individual bodies, the functions of law and its specific norms, the functions of legal consciousness, legal responsibility, legal benefits and incentives, legal privileges and immunities, legal incentives and restrictions, etc.

The method of social experiment is associated with testing a particular draft decision in order to prevent damage from erroneous options for legal regulation. Examples include introduction experiments in nine regions Russian Federation jury trials, on the organization of security in a number of municipalities public order local government bodies, etc.

3. Private scientific methods are techniques that are a consequence of the assimilation by the theory of state and law of scientific achievements of specific (private) technical, natural and human sciences. These include concrete sociological, statistical, cybernetic, mathematical, etc.

The sociological method allows, through questioning, interviewing, observation and other techniques, to obtain data on the actual behavior of subjects in the state and legal sphere. It is used to determine the effectiveness of the impact of state legal structures on social relations, identifying contradictions between legislation and the needs of social development. By, for example, conducting sociological research, appropriate conclusions are drawn about the nature and effectiveness of the legal policy pursued by the government authorities of the state.

The statistical method allows us to obtain quantitative indicators of certain mass recurring state legal phenomena, such as offenses, legal practice, activities government agencies etc. Statistical research consists of three stages: collecting statistical material, reducing it to a single criterion and processing. The first stage of the study is reduced to the registration of individual phenomena that have state and legal significance. At the second stage, these phenomena are classified according to certain criteria, and in conclusion, evaluative conclusions are drawn regarding the classified phenomena.

For example, a quantitative accounting of offenses committed over a certain period of time is carried out. They are then classified according to their content. And finally, a conclusion is made about which of them tend to increase and which tend to decrease. Based on the obtained statistical information, a scientific search for the reasons giving rise to these trends is carried out.

The cybernetic method is a technique that allows one to understand state and legal phenomena using the system of concepts, laws and technical means of cybernetics. The capabilities of cybernetics are not limited to the capabilities of its technical means (computers, etc.). It is possible to gain a deeper understanding of state legal patterns with the assistance of the system of its concepts (management, information, binary information, direct and Feedback, optimality, etc.) and theoretical ideas (the law of necessary diversity, etc.).

A mathematical method is a set of techniques for operating with quantitative characteristics. Even I. Kant noted that “in every knowledge there is as much truth as there is mathematics.” Currently, mathematical methods are used not only in criminology or forensics, but also in the qualification of crimes, and in lawmaking, and in other areas of legal reality, etc.

4. We can distinguish two methods that relate to private law, which are purely legal: formal legal and comparative legal.

The formal legal method makes it possible to define legal concepts (for example, such special legal terms as significant harm, legal entity, serious bodily injury, mitigating circumstances, etc.), identify their characteristics, carry out classification, interpret the content of legal regulations, etc. .P. Its specific feature is its abstraction from the essential aspects of law. The task that is posed in this case is to understand and explain the current legislation, in its systematic presentation and interpretation for the purposes of law-making and law enforcement practice.

The method under consideration consists of studying the categories, definitions, and constructions used in law using special legal techniques. It makes it possible to study in detail the technical, legal and regulatory aspects of law and, on this basis, to professionally engage in legal activities.

The comparative legal method allows you to compare different legal systems or their individual elements - laws, legal practice, etc. - in order to identify their general and special properties. Comparing, for example, the legal systems of Germany and Russia, we learn that there are many similarities between them, but there are also certain differences inherent in them historically.

This method is used in the study of different legal systems (macro comparison) or individual elements legal systems (micro-comparison). Empirical comparison mainly includes micro-comparison - comparison and analysis of legal acts along the lines of their similarities and differences, as well as the practice of their application. In legal science, the comparative legal method is used primarily in the study of the legislation of two or more states.

Methods are especially important for the theory of state and law, because this science is methodological in relation to other legal sciences that use it in their evolution.

The methodology of legal research, tested in political and legal practice, has rich content and consists of at least several branches. Therefore, the exaggeration of any one of them is fraught with the danger of reducing the cognitive potential of scientific knowledge and threatens to result in a crisis situation in science.

In other words, when studying state and legal phenomena, it is necessary to proceed from the multidimensionality of existence, consistently applying such a principle of scientific knowledge as pluralism. Thanks to a pluralistic approach to the study of the most general patterns of the emergence, development and functioning of the state and law, the theory creates a system of knowledge that reflects objective data about real political and legal life.

The methodological basis of the theory of state and law is made up of general scientific principles:

• 1. Historicism. The historical approach requires consideration of state and legal phenomena in development and their historical relationship. When studying the state and law, the theory must establish the reasons for their origin and trace the main stages of development. Then, taking this point of view into account, give a scientific assessment of the modern state and law.
• 2. Objectivity. The principle of objectivity means a true reflection of state-legal reality in scientific knowledge, its reproduction as it really exists. The theory defines general concepts about state and law and reveals their essence. It formulates the general patterns of their functioning, which reflect objective reality, real phenomena of social life.
• 3. Specificity. This principle requires the theory of state and law to accurately take into account all the conditions in which the object of knowledge is located. It involves identifying the main, essential properties, connections and trends of its development. It is practice that ultimately confirms the truth or falsity of scientific knowledge. The truth of the knowledge put forward by science is fully proven only when it manages to find, reproduce (model) and create a phenomenon corresponding to this knowledge.
• 4. Pluralism. We are talking about multidimensionality in any research, including in the theory of state and law. If science concentrates its attention only on some aspects or properties of a phenomenon and, for certain reasons, neglects others as unimportant, incidental, then it inevitably takes a dead end path in its further development. Pluralism of scientific knowledge simultaneously means its universality, because this takes into account not only contradictory views on the same state or legal phenomenon, but also divergent ideas about their origin, essence, social orientation, structure, and development prospects. Thanks to a pluralistic approach to understanding the general laws of state and law, the theory creates the most optimal system of knowledge.

Rationality(from Latin ratio - reason) - in a general sense is explained as a relatively stable set of rules, norms, standards, standards of spiritual and material activity, as well as values ​​that are generally accepted and clearly understood by all members of a given community. In a broad philosophical sense, the problem of rationality involves the analysis of dialectics rational And reasonable.

A prerequisite for scientific rationality is the fact that science masters the world in concepts. Scientific-theoretical thinking is primarily characterized as conceptual activity, while, for example, in art the main form of mastering the world is artistic image. It is the operation of concepts that allows science to perform the main cognitive functions: description, explanation and prediction of phenomena in a certain subject area. And that is why each science has its own language, its own subject area of ​​research and its own method. “The most valuable discoveries are made later; the most valuable discoveries are methods,” wrote F. Nietzsche. "Great methodologists: Aristotle, Bacon, Descartes, Auguste Comte.

In terms of rationality, scientific knowledge is characterized by two more features - evidence and consistency. These qualities distinguish scientific knowledge from everyday knowledge. Systematicity and evidence are based on logical interdependence scientific concepts and judgments. "The image in which the scientific community likes to present itself, and which in fact serves as the image in which most of us perceive this community, is that of rationality par excellence. The scientific community behaves as the very paradigm of institutionalized rationality. It is presented in as someone who owns something significant, namely scientific method, generating “logic of justification” (justification). In other words, this method provides methods for objectively assessing the merits of scientific theories,” this is the view of scientific rationality and the scientific method held by W. Newton-Smith.

The ideal of scientificity is a system of cognitive values ​​and norms, the choice, status and interpretation of which depend on a broad cognitive and sociocultural context. It is important, however, to emphasize that the sociocultural component does not find its direct and immediate expression in the content of the scientific ideal.

These principles are closely woven into the intellectual tradition that was formed in antiquity, and therefore for a long time they had the character of certain obviousities, the alternative to which for the most part was not only not formulated, but was not even realized. The ideal of scientificity is a system of cognitive values ​​and norms, the choice, status and interpretation of which depend on a broad cognitive and sociocultural context.

The ideal of scientificity in natural science of the 17th-18th centuries. was considered an infallible belief in the reliable truth of scientific laws and the special reliability of scientific research methods. Everything changed after the revolution in natural science that arose at the end of the 19th - beginning of the 20th century, when natural radioactivity was discovered elements, thanks to which it was established that atoms are not the last, indivisible particles of matter, energy quanta were discovered, views on space and time were significantly revised, etc.

All these discoveries indicated that scientific laws, which were considered irrefutable truths in classical science, are relative in nature. Therefore, the previous ideal of scientificity was questioned, criticized and revised, on the basis of which a non-classical ideal of scientificity arose, taking into account the relative nature of scientific truths, their dependence on the level of development of practice and culture of its time.

The non-classical ideal of scientificity is characterized, according to some researchers, by such essential features as anti-fundamentalism, pragmatic efficiency, externalism and pluralism. According to externalism, the functioning and development of scientific knowledge is determined, among other things, by sociocultural conditions external to it

In the 20th century, civilization faced global problems generated by scientific and technological development. It became obvious that science not only studies the development of the world, but is itself a factor and result of its evolution. If at the first stage the value of scientific knowledge was seen in the fact that it is a means of salvation, and at the second stage it was contained in economic efficiency, now science is the main means of preserving civilization. In this regard, in the last third of the 20th century, new radical changes took place in the foundations of scientific knowledge, during which post-non-classical science was formed.

Basic principles:

The paradigm of integrity is affirmed, according to which the universe, biosphere, noosphere, society, man, etc. represent a single integrity. The desire to build a general scientific picture of the world based on the principle of universal evolutionism (the theory of a non-stationary Universe; synergetics; theory biological evolution and the concepts of biosphere and noosphere developed on its basis).

The paradigmatic theory is synergetics - the theory of self-organization that studies the behavior of open nonequilibrium systems.

The objects of analysis are complex systems characterized by openness and historical self-development.

The orientation of modern science towards the study of complex historically developing systems significantly restructures the norms of research activity. Methods for constructing possible scenarios are used, historical reconstruction etc.

Science includes such concepts as uncertainty, stochasticity, chaos, bifurcation, dissipative structures, etc., expressing the nonequilibrium characteristics of reality.

There is a convergence of natural and social sciences, in which ideas and principles modern natural science are increasingly being introduced into the humanities, and the reverse process is also taking place. And the center of this fusion, rapprochement is man. An attempt to connect the objective world and the human world.

Some achievements: gene technologies are developing, microbiology - cloning; calc. technology - microprocessors, creation of artificial neural networks, on the basis of which neurocomputers, microelectronics and nanoelectronics are developed and created. Increasingly, the objects of research are complex, unique, historically developing systems, which are characterized by openness and self-development.

The emergence of post-non-classical science does not lead to the destruction of the methods and cognitive attitudes of classical and non-classical research. Post-non-classical science will only more clearly define the scope of their 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, the general principles of comparison receive a more specific expression.

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 are usually following methods: 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.

The main methodological traditions in the history of legal science. Paradigm shift

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 began to be actively used. 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 by a high degree of integration, and interscientific perception of the results and methods of research is one of the mechanisms of its development; the involvement of the most common research tools and methods of other sciences is a necessary condition for the 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-legal phenomena. The origins of this method in its most general form are in the philosophy of Socrates: the method of disclosing 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 the new one more high level 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-organizational processes occurring in complex open systems Oh.

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: Do complex open systems fall within the scope of legal science? 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 complexes that are systemic in nature and include whole line There are enough 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 spheres 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 the modern theory of state and law characterizes as systems, for example, the legal system (which includes, along with other components, a system of law and a 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 system 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, the attempt of Yu.Yu. Vetyutnev explore the legal system using synergetics.

A.B. Vengerov believes that synergetics “offers a new look at the relationship between necessity and chance, at 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 in the 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. Limits of legal influence, content of law and definition optimal options legal regulation of certain relations, taking into account the self-regulation of the corresponding systems, can also be studied through the prism of synergetics.

Thirdly, synergetics allows us to overcome the limitations (and sometimes artificiality) of classical mechanics - the progenitor of a number of modern research methods, 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.

Materialistic and idealistic methods in the history of legal science

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 economic, political and spiritual phenomena 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 state and law, their transition through the gradual accumulation of quantitative changes from one qualitative state to another - these are 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.

Metaphysics and dialectics in the history of legal science.

Metaphysics is what comes after physics - that’s 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, 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 is subject to 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) Universal 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.

Jusnaturalism and Juspositivism in the understanding of the right to different stages development of legal science.

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 is that conscience is a natural law, established even in the hearts of the Gentiles; Modern times (17-18 centuries) are 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, one must understand that they logically mutually presuppose each other, like north and south.

2) is 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 generic concept rights, then they must have something in common that allows them to be classified as a type 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 sovereign.

2) he highlights the value component of law; it’s another matter that he absolutizes it, but the fact that there is a value component in law is clearly shown. Positive law in the social sense will operate 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 takes shape as a 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 rights are expressed in forms established by the state,

3) state power 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 designs, 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.

Flaws:

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) legal order as the goal of the 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 - A set of norms established in a prescribed legal form, created in accordance with the law by the bodies of the state, which itself is a legal union.

5) it is logically impossible to justify coercion as the main property of law. There is a norm. It will be legal only if there is a sanction for non-fulfillment. We do not find it with a sanction for non-compliance. This means that it 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.

Laws and categories of dialectics in legal research

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 to quality, which consists 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 an object;

Negation of negation, which consists in the fact that the new always denies the old and takes its place, but gradually itself turns from new into old and is denied 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 a 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. Phenomenon is the external side of an object, which is reflected by a person in sensory images, and 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 - most important characteristic 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.

Dialectical categories are closely related to each other, so one pair of categories can be defined through other categorical pairs. Thus, necessity and chance appear different ways turning possibility into reality. The more complex a system is organized, the greater the potential for development it has and the greater the role in its functioning played by chance.

Principles of historicism, consistency and objectivity in the study of state and law

The principle of historicism. All phenomena must be studied taking into account their historical development; for example, it is possible to understand the essence and specificity of a state only by tracing the various historical types of the state, in this way its unchanging essential characteristics will be revealed and transitory factors will disappear.

Scientific knowledge of social phenomena invariably presupposes the application of the principle of a historical approach, which requires studying the history of the emergence of social phenomena and processes, the main stages of their historical development, and considering the current state of these phenomena as the result, the result of previous development.

Due to the fact that the world is in constant development and change, scientific knowledge also has a specific historical nature; they are reliable insofar as they correspond to a certain state in the development of the person under study. The subsequent development of this thing being studied means that the scientific information available about it is outdated and needs to be changed and supplemented in accordance with the changes that the object they reflect has undergone. Taking this circumstance into account, the general logical requirements include the principle of a concrete historical approach to the knowledge of the phenomena under study and the recognition of the concrete historical, relative nature of scientific truth. There is no abstract truth suitable for all times; it always has a concrete historical character.

The principle of systematic research. All phenomena are interconnected, so it would be wrong to study any phenomenon in isolation from the factors associated with them; for example, law is studied in relation to the state; this means that all phenomena are studied in a system, in a complex.

The principle of objectivity means that in the process of cognition it is necessary to approach the phenomena and objects being studied as they exist in reality, without speculating or adding anything to them that is not actually there. In the light of this requirement, it is necessary to consider the state and law in the process of their centuries-old development, in their actual connections and relationships, to be able to distinguish the thoughts and motivations of politicians and lawyers from the actual orientation of legislation, ultimately determined by the economic relations of society.

Synergetics in the science of law.

Russian and foreign legal scholars have high hopes for synergetics as a modern method of scientific knowledge that can qualitatively improve the process of cognition of legal phenomena and the social facts that determine their development. Synergetics is a new scientific direction, formed in Russia about 20 years ago, exploring the mechanisms of transition complex systems from disorder (chaos) to order.

A. B. Vengerov interpreted the essence of synergetics and its methodological capabilities as follows. He recognized that “the system (political, legal, economic) is subject to various influences (fluctuations - deviations, disturbances). And if the system is in a nonequilibrium, unstable, crisis state, then the process of influence (fluctuations) reaches a critical point - a bifurcation point, at which the state of the system becomes maximally uncertain, indeterministic, and random. In this state, sometimes it is chance that pushes the system in an unexpected, unpredictable direction. Here, an accidental small, sometimes insignificant and even unnoticed impact can give rise to colossal changes in the entire structure of the system and for the entire system. The system makes a new choice and, in a new quality, in a new content, is subject to the principle of determinism.”

Thus, A. B. Vengerov assured, synergetics acts “already as a new worldview, a worldview that radically changes the understanding of the necessary (natural, deterministic) and accidental in the very foundations of the world order... In a word, the speech, apparently, is not more and no less - about a paradigm shift in the social sciences... and about the rethinking of materialist dialectics as the main method of scientific knowledge of reality." As a result, dialectics becomes only a particular method of synergetics. Moreover, the quoted author believed, dialectics, which is based on the primacy of the necessary over random and other postulates, under the pressure of new knowledge of the late 20th century. has basically exhausted its cognitive and prognostic material in the social sphere, including jurisprudence.

However, these conclusions of A. B. Vengerov about the role of synergetics in the social sciences in general and in law in particular did not receive support from other authors. Thus, Yu. Yu. Vetyutnev was critical of the characteristics of synergetics in the interpretation of A. B. Vengerov and came to the conclusion that “synergetics for legal science is not a method of scientific knowledge in its pure form, but plays a slightly different role. The synergetic approach offers a general model for describing the processes occurring in the legal system, defines the formulation of problems and provides the corresponding scientific terminology. It has ideological significance and occupies an intermediate position between the paradigm and the scientific method." The methods and techniques of synergetic research are based on mathematical methods, which are not widely used in legal science. Therefore, in the near future, lawyers should hardly seriously count on the effective help of synergetics.

It is characteristic that A. B. Vengerov agitated for synergetics and its disproportionately great methodological potential in words. Subsequently, when presenting the theory of law, he turned to the traditional dogmatic, formal legal method; he did not describe or explain any bifurcations or fluctuations in the field of law. Although, it would seem, who else but the founder of synergetics in jurisprudence should have shown its real potential by creative application and obtaining such results that even a mossy retrograde could not fail to recognize as a new branch, a new direction in the development of jurisprudence. Moreover, the author took upon himself to show how the postulates of synergetics work in the theory of law, but, alas, he did not realize this promise.

As follows from the explanations of A. B. Vengerov, synergetics is the science of “self-organizing random processes” in which “it is chance that pushes the system in an unexpected, unpredictable direction.” However, such an understanding of the random is the result of a significant coarsening and simplification of the actual relationship of phenomena and processes. Recognition of some phenomena as a necessary cause, and others as an accidental one, occurs only in those cases when these phenomena are taken out of their real, concrete connections and considered in isolation.

In real life, we recognize the observed processes as random only on the basis that the patterns that were supposed to operate in the given conditions did not manifest themselves properly and instead of the expected results we have other - unforeseen ones.

For example, the Communist Party was confident that, relying on political, economic and other laws, it had built a developed socialist society in the USSR, and the collapse of the Soviet state was a random event. However, can this event be called truly accidental, and not a natural result of the obvious bankruptcy of the party, its inability not only to understand the natural course of social phenomena and processes, but also to ensure the functioning of the party on truly democratic principles, to ensure freedom of criticism and discussion of current issues in the life and activities of the party? ? A party that has lost touch with life, unable to understand social processes and manage them, it was not by chance, but naturally, that she ended up in the place that she honestly deserved - on the outskirts of history.

But synergetics is far from the idea of ​​elucidating the natural connections of what is being studied. For her, they are a priori defined, formalized and expressed using appropriate mathematical formulas. This method of understanding a natural connection is possible in technical and natural sciences, but it is unacceptable in legal science, where, as Yu. Yu. Vetyutnev correctly noted, mathematical methods are not widely used in objective reasons. Knowledge of specific actual connections of legal phenomena is carried out not formally logically, according to certain formulas, but concretely historically, with a thorough clarification of all empirically observed connections and dependencies of what is being studied. Moreover, this knowledge is carried out at the empirical level through the collection and generalization of the necessary empirical information.

Everything recognized as accidental and secondary remains at the empirical stage of scientific knowledge, since the subject theoretical level research is general, essential, necessary. Consequently, a random event that has become the cause of development, change in the phenomenon or process under study has a chance to become the object of theoretical analysis under the only possible condition that the event, phenomenon, initially perceived as random, is in fact an exponent of the natural and therefore is subject to detailed analysis at the stage of theoretical knowledge .

Synergetic descriptions of development mechanisms, changes in open systems in legal science can be used in predictive studies based on the formation of mathematical and conceptual models of transition paths current state investigated into the future state. In particular, when making forecasts, the provisions of synergetics that the most significant and radical transformations of legal life originate in areas that, from the point of view of the current order, are “shadow”, are of significant interest, that, in addition to simple attractors, “strange” ones can be encountered. i.e. unstable, chaotic states. Noteworthy is the conclusion that multiple factors influencing the development of the phenomena under study are in hierarchical relationships, etc.

Thus, in our opinion, synergetics, the new ones developed by it effective ways knowledge of accidents in direct practice can be used only at the empirical stage of scientific knowledge or when conducting predictive studies of the development of state and law. At the theoretical stage, synergetics, like other empirical methods, will be powerless. In any case, synergetics cannot replace dialectical materialism as a philosophical doctrine about the universal laws of development of nature, society and thinking.

Systemic and structural-functional analysis of state and law.

Since in immediate reality legal and other phenomena are in a stable connection with each other and mutually determine each other, then scientific knowledge cannot be limited to identifying only the essential features of the phenomena under study. Concepts obtained in the process of ascent from the concrete to the abstract must be given the same connection between themselves as the phenomena and processes of objective reality they reflect. To this end, K. Marx said, we need to take the opposite path, where “abstract definitions lead to the reproduction of the concrete through thinking.” Following this path, legal science gets the opportunity to understand law as a complex systemic formation, in all the diversity of its components and their connections between themselves and other social phenomena, or, in other words, as a total integrity.

To identify and substantiate the systemic connections of legal phenomena, systems theory and the system-structural method based on it are used.

According to systems theory, there are two types of system structure of phenomena and processes: organic and summative. Organic systems include such integral formations that have the property of integrability, i.e., a set of properties that are not inherent in their components. Summative systems, unlike organic ones, are a mechanical association, where the whole is only quantitatively different from its constituent parts, for example, a pile of grain, sand, or a store display.

The relationship between an organic system and its elements has a complex dialectical character. An organic system does not simply perceive its components as such, but changes them in relation to its own nature, endowing them with new characteristics and properties. Thus, social relations, taking on a legal form, acquire its specific features. The conditions of occurrence, subjects, content, measures of protection against violations and other significant features of social relations are fixed by the rules of law. Thanks to law, social relations acquire a stable, generally binding character and are reliably protected by the state from any attempts to violate subjective rights or failure to fulfill legal obligations. Any legal phenomenon has characteristics that define it as a component of the legal system.

Among the variety of phenomena and processes studied by legal science, there are both summative and organic phenomena. Examples of summative phenomena are numerous classifications of legal norms according to the methods of their presentation, the method of legal regulation, the functions they perform, etc. Due to the fact that summative phenomena do not have structural connections that determine the organic integrity of the phenomenon, they cannot be the subject of a systematic -structural analysis. The latter is used to study the structure of only organically integral phenomena and processes, for example, the systemic structure of a legal relationship, a rule of law, or a specific legal institution.

Thus, the subject of systemic-structural research in jurisprudence is the structural connections inherent in the elements of organically integral phenomena and processes. Filling the gaps in the process of ascent from the concrete to the abstract, the systemic-structural approach is focused on identifying the connections inherent in the components of a phenomenon (internal connections), as well as the connections of the phenomenon with other legal and social phenomena (external connections).

The object of a systemic-structural approach can be a wide variety of sources containing reliable information about the phenomena under study. These can be, firstly, scientific publications that contain empirical data about the phenomena under study, their components, features of functioning and development, secondly, publications that substantiate the essence of the phenomena under study, their distinctive features and, thirdly, written sources (documents) testifying to the direct, real existence of these phenomena. In the process of system-structural analysis, the researcher does not need to independently conduct empirical research if he can obtain the required data from scientific publications. However, in cases where these data are missing or there are doubts about their reliability, the researcher has no choice but to independently conduct empirical scientific research, as well as ascend from the concrete to the abstract.

The fundamental principle of materialistic epistemology - the objectivity of cognition - must be carried out in the most careful manner, and before embarking on knowledge of the subject of systemic-structural analysis, it is necessary to have complete and reliable data obtained at the previous stages of cognition.

System-structural analysis is intended to:

1) identify legal phenomena that are organic systems;

2) reveal specific connections and dependencies that characterize the organic connections of the phenomenon as a whole with its constituent elements, as well as the connections of the elements with each other;

3) explore the connections and dependencies inherent in the phenomenon as a component of a more complex systemic formation;

4) describe the connections of legal phenomena with economic, political and other social phenomena.

For system-structural analysis, the identification of the forms and intensity of the impact of specific historical conditions on the structural state of the phenomenon under study and its response to external factors is of particular importance.

Achieving the goals of system-structural analysis is ensured through the following research procedures:

1) collection of reliable and complete information;

2) determination of the type of organic connection inherent in the phenomenon under study;

3) description and explanation of the internal structural connections of the subject;

4) description and explanation of the external structural connections of the subject;

5) description and explanation of the intensity and results of the influence of the external environment on the structure of the phenomenon under study;

6) presentation of the research results.

Procedures aimed at obtaining knowledge about the object of research are carried out using methods used at the stage of empirical knowledge and ascent to legal abstractions. Information about the object of research that is missing for systemic-structural analysis can be obtained by the same procedures and using the same methods as in studies specifically conducted for the purpose of collecting empirical information or forming the conceptual apparatus of legal science. Research procedures related to obtaining reliable knowledge about the subject of system-structural research are carried out using the principles of the system-structural approach and logical methods.

The system-structural approach as a general method of scientific knowledge was developed in the middle of the 20th century, and attempts to apply it in legal science occurred in the 1970s. It should be noted that a significant part of Soviet legal scholars had high hopes for this method, associated with it the development of certain aspects of the methodology of historical materialism, the opening of new horizons in the science of management, in knowledge of the essence of legal phenomena, their main (and secondary) internal and external connections, they hoped with the help of this method “to approach in a new way” and even “to bridge the gap characteristic of mechanism.” However, the hopes of Soviet jurists turned out to be illusory; there was no major breakthrough in the development of legal science; on the contrary, there was a clear regression. Since the 1990s. Russian legal scholars decisively abandoned the methodology of dialectical materialism, preferring to it the methodology of idealism and positivism.

It is not his fault that the systemic-structural approach did not live up to the hopes of Soviet jurists, since it was associated with solutions to problems that required the use of cognitive tools that were not inherent in this approach. At the same time, the systemic-structural approach, being one of the general methods of scientific knowledge, has been and remains an effective method for understanding the structural connections of organically integral phenomena, and as such it is successfully used in legal science, which was noted by I in 1980 S. Samoshchenko. He noted that “the systems approach gives the greatest effect when studying not just any systems, but primarily organically integral systems. In other cases we're talking about, rather, about the application of the concepts and categories of the systemic approach to the description of certain objects, or even simply about the use of systemic concepts."

The systematic approach is applied differentially, taking into account the structural features of organically integral legal phenomena. In legal science there are three types of structural connections: synthetic, hierarchical (vertical) and external (functional).

The synthetic type of structural connection is inherent in the elements of an offense, legal relationship, and rule of law. This type of connection is characterized by the fact that an organically integral phenomenon consists, firstly, of a strictly defined number of elements, and secondly, each element of the system has a special

The formation of the methodology of legal science is historically determined by the development of practical activities of society, the accumulation of experience of legal life in various fields life and, as a result, the development of social 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, law-making 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 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 section of 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.

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 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 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 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 knowledge 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, as philosophical methods, but are used only at its individual 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 characterized by relative limitations and passivity. These disadvantages can be overcome by using other 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 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.

WITH systematic method closely related to 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 a new reality emerges, 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 of 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 caused by for 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 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 clarification 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

In science, there are several theories that describe the development of 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. The 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 complex education, which 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 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 has 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 the 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.

The emergence of the methodology of legal science and the stages of its development

3. Stages of development of the methodology of legal science. Methods of scientific knowledge

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 evolution rights. 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.

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.

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 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 mental reconstruction of the whole on the basis of known parts and their relationships;

· abstraction is the 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 on the basis of similarity 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 set of components such as people, power and territory, and law is considered 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.

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 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, 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.

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 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 change of a particular socio-legal phenomenon (for example, the crime rate, 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 of 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 the 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.

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, 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.

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.

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