norm of law legal entity

In legal science, all norms in force in society are divided, first of all, into two large groups- social and technical. In this case, technical standards mean all non-social norms, which, in addition to purely technical ones, include, for example, such as sanitary and hygienic, environmental, biological, physiological, etc. But for brevity, all of them are usually called technical in the context of their relationship with social ones. This is the most general division, which seems to have a primary, initial meaning. Further, both groups of norms are classified according to various reasons into numerous types and varieties. Lawyers do not deal with technical standards - this is not their task. They come into contact with them only to the extent that it is necessary in their field of knowledge. But it is important for them to clearly distinguish technical norms from social norms, to establish here objective criteria, distinctive features, and features.

The border between them lies mainly in the subject of regulation. If social norms regulate relations between people and their associations, in other words, social life, then technical norms regulate relations between people and the outside world, nature, and technology. These are relationships such as “man and machine”, “man and tools”, “man and production”. Socio-technical norms indicate how a person should handle tools, machines, and how to react to the influence of natural forces. It should be noted that neglect of technical standards can lead to serious consequences, and it is with the need to comply with them that the increase in human responsibility to society and nature is largely connected, which the Chernobyl tragedy constantly reminds us of. Socio-technical norms are directly related to the level of development of the productive forces and regulate the appropriate behavior of a person in such non-social formations as nature, technology, mathematics, etc. Social norms are determined by the level of development of the socio-economic system and regulate the behavior of people in society, determining what is proper or what is possible human behavior they are created by groups of people. The emergence of social norms and their development express the tendency of society to self-maintain social order in the process of exchanging material and spiritual goods. Objects of exchange act as those values ​​that a person seeks to obtain and master, and therefore exchange relations acquire a normative value character, and repeated, stable connections arising in the process of exchange of activities become habitual standards of social behavior.

The objective nature of social norms is determined by the following circumstances: social norms arise from the objective need of social systems for self-regulation, in maintaining stability and order; the norm arises in the process of human activity, subjectively determined by the method of production; the norm is inseparable from the exchange relationship, the nature of which is also determined by the method of production and distribution.

Social norms are general rules behavior of people in society, determined by its socio-economic system and resulting from their conscious-volitional activity. They “insure”, protect social life from chaos and drift, and direct its flow in the right direction. Consequently, despite the great difference in social norms, their common features are the following: these are the rules of behavior of people in society, the norms are of a general nature (addressed to everyone and everyone), are created as a result of the conscious-volitional activity of people, their teams, organizations and are determined by the economic basis society.

In legal literature, social norms are predominantly considered as regulators of social relations. But more generally, their role is not limited to this function. Based on the above, we can name at least three functions of social norms.

Regulatory. These norms establish the rules of behavior in society and regulate social interaction. By regulating the life of society, they ensure the stability of its functioning, the maintenance of social processes in the required state, and the orderliness of social relations. In a word, social norms support a certain systematicity of society, the conditions for its existence as a single organism. Estimated. Social norms act in social practice as criteria for attitudes towards certain actions, as the basis for assessing the socially significant behavior of specific subjects (moral - immoral, legal - illegal).

Broadcasting. We can say that social norms concentrate the achievements of mankind in the organization of social life, the culture of relations created by generations, and the experience (including negative ones) of the social structure. In the form of social norms, this experience and culture are not only preserved, but also “broadcast” into the future, passed on to subsequent generations (through education, upbringing, enlightenment, etc.). The analyzed norms have different contents, depending on the nature of the relations they regulate. In addition, different social norms may arise different ways and on a different basis. Some norms, being initially directly included in activity, are not isolated from behavior and are its element. Patterns of such behavior established in practice, receiving public awareness and evaluation, can be transformed into formulated rules, or can be preserved in the form of habits and stereotypes. Other norms are formed on the basis of ideas about the foundations and principles of social organization that dominate in the public consciousness. Still others are formed as the most appropriate, optimal rules for a given society (for example, procedural norms). In this regard, the classification of social norms is important for both theory and practice.

Social norms can be classified according to various criteria, but the most common is their systematization based on the basis of the mechanism (regulatory features) and scope. According to the methods of establishing and ensuring norms, they are classified into legal norms, moral norms, customs, corporate norms (norms of public organizations). This division is considered generally accepted in the legal literature. However, some authors propose to distinguish the following types of social norms as independent ones:

Aesthetic (A. M. Aizenberg, M. N. Kulazhnikov);

Cultures (S. I. Vilnyansky, I. E. Farber);

Political (A. M. Aizenberg, V. I. Podkucheiko);

Organizational (A. M. Aizenberg, P. E. Nedbaylo);

Norms of religious organizations (M. N. Kulazhnikov);

Norms of labor collectives (A. M. Eisenberg);

Hostel rules (Yu. S. Rashchupkin);

Norms of traditions and rituals (V. N. Khropanyuk).

The second basis for the division, which will largely help resolve problematic issues of classifying social norms, is based on the content of the sphere of regulated social relations: political, organizational, ethical, aesthetic norms, etc.

There are other criteria for classifying social norms:

by methods of formation (formed spontaneously or created consciously); by means of consolidation or expression (oral or written form).

Thus, a special place in the formation of social relations belongs to the entire system of regulatory regulation. because individual norms act as the most important social regulators included in the system

social relations, purposefully influence not only their development, but also their transformation.

A social norm is not just an abstract rule of desired behavior. It also means the real action itself, which has actually been established in life, in practice. In this case, actual actions become the rule. In other words, a social norm expresses not only the “ought”, but also the “existent”.

Introduction

Social norms have played a vital role in the history of human activity. To this day, social norms are an integral part of the life of the entire world society. With their help, relationships between people are regulated.

Social norms reflect the development of all spheres of society: economic, political, spiritual, social.

By characterizing them, one can understand the level of freedom of citizens in the state, the type of political system, form of government, type economic system, the quality of human life in the characterized society, as well as many other aspects of life.

The main role in the system of social norms is occupied by law. Therefore, it is the rules of law that I consider necessary to consider in more detail. Since it is the rules of law that act to a greater extent as regulators of social relations.

To understand social regulation, you need to characterize social norms, understand their functions, goals, methods of application, find out the sources of these norms and relate them to each other.

To prove that legal norms are the basis in a system of social norms, it is necessary to correlate them with other norms.

To achieve this goal, I set myself the following tasks:

1) Expand the concept of social norms.

2) Understand the importance of social norms in the life of society. Why are norms needed?

3) Find out about the functions that these standards perform.

4) Classify types of social norms.

5) Expand the concept of legal norms and find their place in the system of social norms.

6) Describe the sources of law.

7) Correlate law with moral standards.

When writing course work Regulatory, educational, and literary sources were studied. In my work, I used such methods of scientific knowledge as: theoretical, general scientific, specific scientific, and interpretation techniques.

Social norms

The concept of social norms and their meaning

The most important means of organizing social relations are social norms: legal norms, moral norms, norms of public organizations, norms of traditions, customs and rituals. These norms ensure the most appropriate and harmonious functioning of society in accordance with the needs of its development.

Social norms are rules that govern people's behavior and activities (“Social” comes from the Latin word socialis, which means “public”).

The need for social norms arose at the earliest stages of the development of human society due to the need to regulate people's behavior by general rules. With the help of social norms, the most harmonious and expedient interaction of people is achieved, tasks are solved that only society, and not an individual, can do. Social norms are characterized by a number of features:

1. Social norms are rules for people's behavior. They indicate what human actions should be, in the opinion of certain groups of people, various organizations or the state. These are patterns according to which people conform their behavior.

2. Social norms are general rules of conduct. The general nature of a social norm is expressed in the fact that its requirements apply not to a specific person, but to many people. Due to this property, the prescription of the norm must be fulfilled by everyone who finds itself within the scope of the norm.

3. Social norms are not only general, but also mandatory rules behavior of people in society. Not only legal, but also all other social norms are binding for those to whom they apply. In necessary cases, the obligatory nature of social norms is ensured by coercion. Therefore, depending on the nature of the violation, state or public measures may be applied to persons who violate the requirements of social norms. If a person has committed a violation of a legal norm, then measures of state coercion are applied to him. Violation of the requirements of a moral norm may entail the use of measures of social influence: public condemnation, censure and other measures.

Thanks to these characteristics, social norms become an important regulator of social relations, actively influence people’s behavior and determine its direction in various life situations.

Types of social norms

All social norms operating in modern society are divided on two grounds:

By the method of their establishment;

By means of protecting them from violations.

Based on this, the following types of social norms are distinguished:

1. Rules of law - rules of conduct that are established and protected by the state.

2. Norms of morality (morality) - rules of behavior that are established in society in accordance with people’s moral ideas about good and evil, justice and injustice, duty, honor, dignity and are protected by the power of public opinion or internal conviction.

3. The norms of public organizations are established by the organizations themselves; enshrined in their charters and decisions; are protected by the measures of social influence provided for in their charters.

4. Norms of customs are rules of behavior that have developed in a certain social environment and, as a result of their repeated repetition, have become the habit of people. The peculiarity of these norms of behavior is that they are fulfilled by force of habit.

5. The norms of traditions appear in the form of the most generalized and stable rules of behavior that arise in connection with the maintenance of time-tested progressive foundations of a certain sphere of human activity (for example, family, professional, military, national and other traditions).

6. Norms of rituals are a type of social norms that determine the rules of behavior of people when performing rituals and are protected by measures of moral influence. Ritual norms are widely used during national holidays, marriages, and official meetings of government and public figures. The peculiarity of the implementation of ritual norms is their colorfulness and theatricality.

7. norms of religion - come from people’s ideas about God as the creator of the universe and the fundamental principles of human society.

The division of social norms is carried out not only by the method of establishing them and protecting them from violations, but also by content. On this basis, political, technical, labor, family norms, cultural norms, religious norms and others are distinguished.

All social norms in their totality and interrelation are called the rules of human society.

In general, there are two meanings of the term "norm" :

1. norm as a natural state of some object (process, relationship, system, etc.) in accordance with its nature – natural state

2. norm as a guiding principle, a rule of behavior associated with the consciousness of people, arising in the process of cultural development and social organization of society – social norm

Norms– these are certain standards, samples, benchmarks, models of behavior of participants social communication. They are established by society itself. Without them, human society is impossible. Norm is always a stereotype designed for indefinite number of cases. Society- this is society.

Signs of social norms:

1. regulate relationships between people

2. regulate recurring (common, mass, typical) situations

3. are general rules (that is, they establish the rules of behavior in society, i.e. they determine what the behavior of subjects can or should be from the point of view of the interests of society)

4. designed for many people, and not specific and not personally defined

5. they are created by intelligent beings, created by the will of people, by their consciousness

6. they have a certain form (this can be a form in the form of an action - ritual, rite, custom)

7. has a sanction (may be in the form of public censure)

8. they arise in the process of historical development (as its factor and result) and the functioning of society. in addition, they stabilize society, which means they are both a product of and a regulator of social relations

9. they correspond to the type of culture and the nature of the social organization of society (European and Asian culture)

Social norms– associated with the will and consciousness of people, general rules for regulating the form of their social interaction, arising in the process of historical development and functioning of society, corresponding to the type of culture and the nature of its organization.

These are objectively necessary rules of joint human existence, indicators of the boundaries of what is proper and what is possible.

They develop and become more complex with the development of society. They reflect the patterns of social development, but they themselves are not such.

Types of social norms:

1. Rituals- a rule of behavior in which the emphasis is on outside its execution, and this form is strictly canonized. This is a ceremony, a demonstration. Characterized by mass character.

2. Rituals– (separated from ritual actions) these are rules of behavior consisting of symbolic actions, but, unlike ritual, they penetrate deeper into the psyche of people and pursue educational goals. Performed by a special, “knowledgeable” person. Affects people's psychological experiences. (marriage, healing, burial rituals). Each action is filled with a certain meaning and is, as it were, a symbol.

3. Myths– (arise with the development of speech) these are legends, stories, stories about gods, spirits, deified heroes, ancestors, trying to explain the world around us. It has an ideological load and contains examples to follow. An explanation of sorts. It has an emotional and associative beginning.

4. Customs- (rather complex, more subtle social norms) rules of behavior that have developed historically, over the course of several generations, which have become universal as a result of repeated repetition. Characterized by stability. Reflect the pattern of life. They are universal. "Household Customs" These also include business customs or business practices. Customs are based on patterns of specific behavior and practical activities. Their instructions are highly detailed.

5. Moral standards- rules of conduct that define what is good and evil. The incentive for their implementation is the “voice of conscience.”

6. Etiquette standards– norms of everyday, everyday, “well-mannered” behavior, correct behavior, rules of decency. Ethics is the science of morality.

7. Political norms– rules of behavior that regulate relations developing in the sphere of management, relations between various social groups related to the exercise of state power, the method of its organization and purpose in society.

8. Corporate standards– rules of conduct that regulate relationships among members of public organizations, associations, and mass movements. They are expressed in charters, regulations, programs, decisions. They are mandatory only for members of such associations.

9. Economic norms- rules of human behavior that regulate economic relations, ensuring the inviolability of various forms of property, ... Norms of religion - rules of behavior that regulate social relations through the requirements of divine principles, relations in the field of religion.

10. Family norms- rules of behavior that develop between family members.

11. Rules of law- rules of conduct established by the state and representing generally binding formally defined rules of behavior, officially enshrined and provided with the possibility of state coercion.

12. Technical and legal standards- these are the rules for the most rational handling of people with tools and objects of nature. They relate to social norms in the sense that in case of non-compliance with them, sanctions may be established. They become technical and legal norms. (technical standards do not apply to social norms, since they do not regulate relations between people)

Three functions of social norms:

1. regulatory. These norms establish the rules of behavior in society and regulate social interaction. Ensure the stability of the functioning of society.

2. evaluative. They act in social practice as criteria for attitude towards certain actions, the basis for assessing the socially significant behavior of specific subjects (moral - immoral, legal - illegal).

3. broadcast. By recording the cultural, spiritual principles, social experience of a generation, social norms represent a kind of legacy for future generations and are transmitted into the future.

Social norms differ in the process of formation, form of fixation (existence), nature of regulatory action, methods and methods of enforcement.

Regulatory regulation of social relations in the modern period is carried out with the help of a rather complex and diverse set of social norms. Social norms are determined by the level of development of society - and the scope of their action is social relations. Determining the proper or possible behavior of a person, they are created by groups of people.

Hence, social norms- these are the rules governing the behavior of people and the activities of the organizations they create in relationships with each other. Social norms are characterized by the fact that they are:

Rules of behavior for people, indicating what their actions should be;

General rules of conduct (as opposed to individual rules);

Not only general, but also mandatory rules of behavior of people in society, which are provided for this by coercive measures.

Thanks to these properties, social norms are capable of exerting a regulatory influence on social relations and the consciousness of their participants.

The variety of types of social norms is explained by the complexity of the system of social relations, as well as the multiplicity of subjects that carry out the normative regulation of social relations.

All social norms operating in modern society are divided according to two main criteria:

The method of their formation (creation);

Method of provision (security, protection).

In accordance with these criteria, the following types of social norms are distinguished:

Rules of law- rules of conduct that are established and protected by the state.

Moral standards(morality, ethics) - rules of behavior that are established in society in accordance with people’s ideas about good and evil, justice and injustice, duty, honor, dignity and are protected from violation by the power of public opinion or internal conviction.

Norms of customs- these are rules of behavior that have developed in society as a result of repeated repetition over a historically long period of time and have become a habit of people; they are protected from violation by the natural internal needs of people and the force of public opinion.

Norms of public organizations(corporate norms) - rules of behavior that are established by public organizations themselves and are protected by measures of social influence provided for by the charters of these organizations.

Religious norms- rules of behavior that are established by various faiths, are used in the performance of religious rites and are protected by measures of social influence provided for by the canons of these religions.

The distinctive features of law as a social regulator are its formal nature, i.e. its external expression in official legal sources (laws, international conventions, court decisions etc.), systematicity or clear interrelation of legal norms, generally binding regulations, provision of state coercion in the event of an encroachment on the rule of law.

Social norms can also be divided according to content. On this basis, economic, political, environmental, labor, family standards, etc. are distinguished. Social norms in their totality are called the rules of human society.

Law and Morality

The most important regulators of human behavior have always been customs, law and morality. As you know, the most ancient rules of human behavior were customs. Custom is closest to instinct, because people perform it without thinking about why it is needed - it’s just been the way it has been for centuries. Custom united and streamlined the primitive community of people, but where they did not overcome its dominance, the development of society froze at a dead point, because customs stifled creative imagination and the desire for the new and unusual.

The younger sister of custom was another system of rules of behavior - morality. Moral rules arise as spontaneously as customs, but they differ from custom in that they have an ideological basis. A person does not simply mechanically repeat what has been done before him from time immemorial, but makes a choice: he must act as morality prescribes to him. What is a person guided by when justifying his choice? Conscience, which gives rise to a sense of duty. The meaning of moral duty is that one person recognizes himself in another, sympathizes with the other.

Although morality, like custom, oriented a person towards the observance of collective interests, towards collective actions, it appeared important step forward compared to custom in the formation of the individual principle in people as natural beings. Morality is a system of principles of a person’s deeply personal attitude to the world from the point of view of what is proper. Morality is, first of all, a life guideline that expresses a person’s desire for self-improvement. Its main function is to affirm the truly human in man. If the mechanical repetition of customs is still close to instinct, then conscience, duty, and a sense of responsibility inherent in morality are absolutely alien to the natural world, they are the fruits of man’s “second nature” - culture.

It is with the cultural development of society that people gradually begin to form their own, individual needs and interests (economic, political, social). And in connection with the protection of the individual, the individual and his personal interests, a third system of rules of conduct arose - law. The formation of this system is closely related to the emergence of inequality within the community of people that followed the Neolithic revolution (the transition from an appropriating economy to a producing one). Inequality developed in two directions: inequality in prestige, and, consequently, in influence and power, and inequality in property. Naturally, the owners of these values ​​(prestige or property) have a need to protect them from the encroachments of others, as well as the need to streamline new social relations so that everyone “knows their place” in accordance with personal capabilities.

Thus, law initially arises to express people’s claims to certain goods as a permission exercised by an individual in order to satisfy his own needs through forceful influence on other individuals. But this method of protection was not reliable enough. In addition, using force, you can not so much protect your own as appropriate the rights of others. This led to disorder that threatened the death of society. Therefore, arose in society new organization, designed to streamline relations between people, is the state, and the instrument of the state has become the law - an act issued by the state and mandatory for execution under pain of physical coercion. In law (and others official sources) socially recognized rights (claims to social benefits) were secured. Consequently, law can be characterized as a set of rules of conduct that define the boundaries of freedom and equality of people in the implementation and protection of their interests, which are enshrined by the state in official sources and the implementation of which is ensured by the coercive force of the state.

Currently, legal and moral norms occupy a dominant, dominant position in the system of regulatory regulation. This is not least due to the fact that both have the most wide area actions - potentially they cover the whole society. In this regard, the scope of morality and law largely overlaps. At the same time, they are independent elements of the normative system, the unity, relationships and interaction of which deserve special attention.

The unity of legal norms and moral norms is based on the commonality of socio-economic interests, the culture of society, and people’s commitment to the ideals of freedom and justice. The unity between law and morality is expressed in the following:

In the system of social norms, they are the most universal, extending to the entire society;

The norms of morality and law have a single object of regulation - social relations;

Like legal norms, moral norms come from society;

Rules of law and rules of morality have a similar structure;

Rules of law and moral norms emerged from the fused (syncretistic) customs of primitive society during its decomposition.

Law and morality serve a common goal - the coordination of the interests of the individual and society, the development and spiritual elevation of man, the protection of his rights and freedoms, the maintenance of public order and harmony. Morality and law act as a measure of an individual’s personal freedom, set the boundaries of permitted and possible behavior in the situation they regulate, and promote a balance of interests and needs. They are fundamental general historical values, they are part of the content of the culture of the people and society, and show the level of social progress of civilization.

At the same time, legal norms and moral norms still differ from each other in the following ways:

By origin. Moral norms are formed in society on the basis of ideas about good and evil, honor, conscience, and justice. They acquire mandatory significance as they are realized and recognized by the majority of members of society. The rules of law established by the state, after entering into force, immediately become mandatory for all persons within the scope of their action.

According to the form of expression. Moral standards are not enshrined in special acts. They are contained in the minds of people, exist and act as a set of unwritten rules in the form of teachings and parables. Recent attempts to impose on society the commandments clearly formulated by higher party authorities in the form of the Moral Code of the Builder of Communism (“Man is man’s friend, comrade and brother”) can hardly be regarded as a successful experiment. In turn, legal norms in modern conditions most often receive written expression in official government acts (laws, decrees, regulations, court decisions, etc.), which increases their authority and gives their requirements clarity and certainty.

According to the mechanism of action. Law can only regulate the actions of people, i.e. only those actions (or inactions) that are perceived and recognized by the acting subject himself as social acts, as manifestations of the subject that express his attitude towards other people. Legal norms cannot directly interfere with the world of thoughts and feelings. Legal significance has only that behavior of a person or a group that is expressed externally, in the external physical environment - in the form of body movements, actions, operations, activities performed in objective reality.

“Only insofar as I manifest myself, insofar as I enter the realm of reality, do I enter the realm subject to the legislator. Apart from my actions,” Marx wrote, “I do not exist at all for the law, I am not at all its object.” Therefore, a person cannot be held legally responsible for base feelings and dirty thoughts if they were not objectified externally in one or another publicly accessible form, but morality clearly condemns both. Morality makes demands not only on the nobility of actions, but also on the purity of thoughts and feelings. The action of moral norms is carried out through the formation of internal attitudes, motives of behavior, values ​​and aspirations, principles of behavior, and in a certain sense does not imply the presence of certain pre-established external regulation mechanisms. As is known, the main internal mechanism of moral self-regulation is conscience, and the informal, external mechanism is customs and traditions as the centuries-old collective wisdom of the people.

According to the method of protection from violations. Moral norms and legal norms in the overwhelming majority of cases are observed voluntarily on the basis of people's natural understanding of the justice of their instructions. The implementation of both norms is ensured by internal conviction, as well as by means of public opinion. Society itself, its civil institutions, and collectives decide on the forms of response to individuals who do not comply with moral prohibitions. At the same time, moral influence can be no less effective than legal influence, and sometimes even more effective. “Evil tongues are worse than a gun!” – Molchalin exclaimed in Griboedov’s famous play. Such methods of protection are quite sufficient for moral standards. To ensure legal norms, measures of state coercion are also used. Illegal actions entail a reaction from the state, i.e. special legal responsibility, the procedure for imposing it is strictly regulated by law and is procedural in nature. The person is punished on behalf of the state. And although in each individual case the interests of individual “private” individuals may be directly violated, the state cannot entrust the application of legal liability measures to the offender to these “private” individuals. The offender openly opposed his will to the general will embodied by the state in the rules of law, and his conviction and punishment should be not only personal, but also of a state nature. The state, even in the offender, must see “a person, a living piece of society in which the blood of his heart beats, a soldier who must defend his homeland, a member of the community performing public functions, the head of a family whose existence is sacred, and, finally, most importantly, a citizen of the state . The state cannot lightly remove one of its members from all these functions, for the state cuts off its living parts from itself whenever it makes a criminal out of a citizen.”

The consequences of immoral, immoral behavior can also be severe and irreparable. However, violation of moral standards generally does not entail intervention by government agencies. Morally, a person can be an extremely negative person, but he is not subject to legal liability if he does not commit any illegal acts. Responsibility for violation of moral norms is of a different nature and does not have a strictly regulated form and implementation procedure. Morality has a traditional and fairly limited system of sanctions. Punishment is expressed in the fact that the offender is subjected to moral condemnation or even coercion; measures of social and individual influence are applied to him (remark, demand for an apology, termination of friendly and other relationships, etc.). This is a responsibility to the surrounding people, teams, family and society, and not to the state.

According to the level of detail. Moral norms appear in the form of the most general rules of behavior (be kind, fair, honest, do not envy, etc.). Moral requirements are categorical and know no exceptions: “thou shalt not kill,” “thou shalt not lie.” Legal norms are detailed rules of conduct compared to moral norms. They establish clearly defined legal rights and obligations of participants in public relations. By giving a specific formula for lawful behavior, the law strives to outline in detail all the options for prohibitions. For example, the commandment “thou shalt not kill” in criminal law is represented by a whole list of elements: simple murder; murder of a newborn child by a mother; murder committed in a state of passion; murder committed when exceeding the limits of necessary defense or exceeding the measures necessary to apprehend the person who committed the crime; and even causing death by negligence. In addition, as we see, the law considers it legitimate (subject to the conditions established by law) to cause death in a state of necessary defense, or when detaining a criminal.

By scope. Moral standards cover almost all areas of human relationships, including the legal sphere. Law affects only the most important spheres of public life, regulating only social relations controlled by the state. As already noted, morality is intended to influence inner world of a person, to form a spiritual personality, but law is not capable of intruding into the sphere of feelings and emotions, into the deep inner world of the individual. However, the scope of morality is not unlimited. Most legal procedural and procedural issues (the sequence of stages of the lawmaking process, the procedure for conducting a court hearing, inspection of the site during a traffic accident) are ethically neutral and, because of this, cannot be regulated by morality.

We must not forget that in each country, as a general rule, one single and only system of law is officially recognized, to which the entire population of that country must obey. Moral requirements do not constitute such a single and unique system. Morality can be differentiated in accordance with class, national, religious, professional or other divisions of society: the dominant morality is corporate, the morality of the ruling elite and the governed. Group “morality”, especially of the criminalized and marginalized parts of society, often diverges from the legal provisions common to all citizens, of which many striking examples can be found in the life of modern Russian society. However, their replication through means mass media without due emphasis on the negativity and extreme pathology of such phenomena, such phenomena already lead to the spread of such subcultures of individual groups throughout society (for example, in the language of everyday communication).

Differences in moral principles and moral attitudes exist not only between certain social groups (one can point to the peculiarities of the professional ethics of doctors, lawyers, teachers, etc.), but also between people of the same social group. Suffice it to recall the individual code of morality of one of the heroes of L.N.’s novels. Tolstoy - Vronsky: “Vronsky’s life was especially happy because he had a set of rules that undoubtedly defined everything that should and should not be done. These rules undoubtedly determined that the sharper had to be paid, but the tailor did not have to; that men don’t have to lie, but women can; that you can’t deceive anyone, but you can deceive your husband; that one cannot forgive insults and one can insult, etc.” It is clear that such “individual” legal norms cannot exist.

According to the principle of action. It has long been noted in the legal literature that the rule of law is based on formal equality between those people to whom it applies. Law in this sense is the application of equal scope to different people. For example, in modern society there are principles of universal and equal suffrage, according to which all voters have one vote, although some are educated and some are not, some are well versed in political problems and some are worse, etc. . But law cannot act otherwise, because it protects and expresses the interests of each – in this case – voter, and the interests of all voters are equal. Morality does not recognize this equality. According to its canons, to whom more is given, more is required.

The differences between law and morality serve as the basis for their interaction and cooperation. They serve high goals - the ideals of goodness and justice, the achievement of harmony and prosperity, the development of the individual and society, and the provision and maintenance of public order. The implementation of legal norms and their execution are largely determined by the extent to which they comply with moral standards. For legal norms to be effective, they at least must not contradict the moral values ​​of society. In some cases, law helps rid society of outdated moral norms. For example, it was through law that the process of overcoming blood feud, one of the postulates of morality of past times, took place. At the same time, a number of legal norms (in particular, criminal norms) directly enshrine moral norms in law, supporting them with legal sanctions.

Morality is not only relatively independent in relation to law and numerous external conditions, but in many ways an unchanged phenomenon over significant periods of time. It is characterized by a certain constant, which, despite all changes in the economy, politics, and power structures, retains a certain type of original moral thinking, which serves as the basis, among other things, for the Russian legal tradition. It is mentality, as a reflection of the deeper layers of moral and legal psychology, that allows us to see how an effective model of organizing the social life of an individual and a people is formed within the framework of a specific culture and tradition.

In this regard, it cannot be categorically stated that the law is enforced only by coercive methods. After all, most citizens comply with legal norms voluntarily, and not under pain of punishment. Of course, the implementation of the law is a complex process in which methods of persuasion, prevention, and education are used in order to induce subjects to obey the law. Psychological research has shown that factors such as trust, honesty, truthfulness and a sense of belonging are much more important than coercion in ensuring compliance with rules. As noted by G.J. Berman, it is precisely when the law is trusted and coercive sanctions are not required that it becomes effective: whoever rules the law has no need to be present everywhere with his police apparatus. Today this has been proven to the contrary by the fact that in our cities that section of the law whose sanctions are most severe, namely the criminal law, has turned out to be powerless and cannot create fear where it has failed to create respect by other means. Today everyone knows that no amount of force that the police can use can stop urban crime. Ultimately, crime is restrained by the tradition of law-abiding, and it, in turn, is based on the deep conviction that law is not only an institution of secular politics, but also relates to the highest goal and meaning of our lives. Being in close contact, law and morality, as a rule, support each other in regulating social relations, positively influencing the individual, in forming a proper moral and legal culture among citizens, and in preventing a number of crimes. Crimes such as gambling, prostitution or drug addiction generally do not involve a conscious desire to cause harm, but are referred to as “victimless crimes.” In this case, it is not enough to abolish the usual criminal sanctions associated with imprisonment or fines, thereby freeing up a lot of time and energy of the police, courts and penitentiary authorities. Here it is more appropriate to create new legal procedures, both within the criminal courts themselves and outside them: new public services such as liturgies - to make decisions (as long as the behavior of such persons is antisocial), including the participation in them of psychologists, social workers, clergy, and also family members, friends, neighbors - before, during and after the hearing. Most offenders are not sick people, and we must approach these cases more humanely and creatively, condemning not people, but their behavior and the specific conditions that give rise to this behavior.

So, in the process of carrying out their functions, law and morality must help each other in achieving common goals, using their own methods for this. And the task is to make such interaction as flexible and deep as possible. This is especially important in those relationships where there are lines between what is legally punishable and what is socially condemned, where legal and moral criteria are closely intertwined. Moral and legal criteria are basic concepts - good, evil, honor, dignity, duty, etc., as well as principles - justice, humanism, respect, openness, formal equality, etc.

This complex interdependence of law and morality is expressed in the fact that these fundamental principles are still common, universal for the entire normative and regulatory system of society. However, it is in law that justice as a formal expression of equality in freedom characterizes mainly external commitment to morality, connection with it only through a regulatory form, and not internal content. V.S. shares approximately the same opinion. Nersesyants: “... justice is included in the concept of law... law is by definition fair, and justice is an internal property and quality of law, a legal category and characteristic, not extra-legal... only law and fair. After all, justice is actually fair because it embodies and expresses universally valid correctness, and this in its rationalized form means universal legality, i.e. the essence and beginning of law, the meaning of the legal principle of universal equality and freedom. Both in meaning and in etymology (iustitia) goes back to law (ius), denotes the presence of a legal principle in the social world and expresses its correctness, imperativeness and necessity.”

Law and morality fruitfully “cooperate” in the field of administration of justice, the activities of law enforcement agencies and justice. This may be expressed in various forms: when resolving specific cases, analyzing all kinds of life situations, illegal actions, as well as the identity of the offender. Often the law cannot qualify this or that act as an offense (crime) without corresponding moral criteria (such an act is evil), since otherwise it is impossible to correctly determine the signs and degree of responsibility for such, for example, acts as “hooliganism”, “insult”, “ slander”, “humiliation of honor and dignity”, evaluative concepts of “cynicism”, “special cruelty”, “self-interest”, “base motives”, “personal hostility”, “moral harm”, etc., which act as motives and elements of many offenses.

The close interaction of legal and moral norms does not mean that this process is smooth, smooth and conflict-free. Sharp contradictions, collisions, and discrepancies can quite often arise between them. Moral and legal requirements do not always agree in everything, and often directly contradict each other. For example, in Rus' mutual assistance was widely known when catching a criminal at the scene of a crime, a thief during a theft, or an adulterer in the arms of another man's wife. Punishment followed immediately and did not entail consequences - blood feud, since it was considered as a matter of course (committed according to conscience, according to custom). Also in Soviet period Polygamy was condemned both by morality and was prosecuted by the Criminal Code (punishable by imprisonment). Meanwhile, the modern Criminal Code of the Russian Federation is simply silent regarding such acts, i.e. completely neutral, and in the moral sphere this offense refers to very serious immoral behavior that destroys the family union as the basis for the moral socialization of the individual and the foundations of society.

The reasons for the emerging contradictions between law and morality lie in their specificity, in the fact that they have different methods of regulation, different approaches, criteria for assessing the behavior of subjects. What matters is the inadequacy of their reflection of real social processes, the interests of various social strata, groups, classes. The discrepancy between law and morality is caused by the complexity and inconsistency, the imbalance of social life itself, the endless variety of life situations arising in it, the emergence of new trends in social development, unequal level of moral and legal development of people’s consciousness, variability of social and natural conditions, etc.

Morality by its nature is more conservative than law; it inevitably lags behind the flow of life, from the trends in economic, scientific, technical and political development of society, and, accordingly, from the novelties of legislators who seek to reflect them in normative legal acts. Morality has been formed over centuries, and the content of right-wing norms has changed to one degree or another with each new political system. And now the law is more flexible, dynamic, active and flexible in responding to ongoing changes (problems of gender reassignment, homosexuality, euthanasia and abortion, changing the sex of a child in the early stages of pregnancy at the request of parents, etc.). Law, with its irrepressible temperament and youth, novelty and revolutionary nature, formality and utilitarianism, seems to push morality in its development towards changes that correspond to the modern level of development of society.

Between the norms of law and morality there may arise conflict situations, which are negative not only for the individual, but also for the entire society as a whole. Much of what is permitted by law may be prohibited by moral norms, and vice versa, what law prohibits is permitted by morality. For example, the norms of Russian legislation (Law of 1992 “On Transplantation of Human Organs and (or) Tissues”) establish the presumption of “individual consent to transplantation.” Meanwhile, a number of citizens, due to various moral and religious beliefs, are categorically against their deceased relative being a donor, but the rules of law require transplantation to save the lives of other people, if the deceased during his lifetime did not express in the prescribed form his unwillingness to be the subject of a transplant. The problem of euthanasia is equally acute. Some believe that a doctor’s moral duty is to humanely end suffering, while others believe that it is immoral for others to interfere in matters of life and death. There are supporters and opponents of euthanasia both in countries where it is officially permitted (law permits, but morality condemns), and in countries where it is officially prohibited (law prohibits, but morality permits).

Also ambiguously assessed by law and morality, for example, cloning (repeating the genotype from stem cells) of animals and humans, multiple marriages and divorce by the same person. Meanwhile, it is obvious that another more acute problem arises here - moral goals and guidelines for science itself, scientific activity and scientific experiment. Can science, moving along the path of progress and evolution, even for the most noble purposes of enlightenment and knowledge of scientific truth, violate moral imperatives?

The consequences of the bombing of Hiroshima and Nagasaki, as well as the creation in 1953 of A.D. Sakharov's hydrogen bomb, capable of destroying all life within a radius of several tens of kilometers, was supposed to sober up humanity and put an end to this issue for all science. And the point here is not in immoral and unprincipled politicians who can use it for their own selfish interests, but in science itself, which, deifying itself, has become detached (partly through the fault of the state) from society, its moral and spiritual environment, its vital interests. . It cannot be outside of moral principles, but, on the contrary, must observe, affirm and even fight for them together with the active part of society, indicating the direction of balanced, and not pathological progress of civilization. And, unfortunately, the law, being at the forefront of social changes, cannot cope with challenging task containment of spiritual and moral pathologies in all spheres of society, and sometimes it itself strengthens them.

Thus, specific gravity, the scope of action of one or another regulator in different historical eras has either expanded or narrowed. IN current conditions Due to the crisis state of Russian society and the entire civilization, the contradictions between law and morality have become extremely aggravated. The threshold of moral demands placed on individuals and society has sharply dropped. The legalization of many dubious forms of enrichment, the unrestrained pursuit of profit and the pleasure of undeveloped souls have greatly undermined the moral foundations of society.

Social and spiritual values ​​have changed. The morality of the undeveloped majority of society has become more tolerant and lenient towards various kinds dexterity, illegal actions. As a result of the massive criminalization of society, the law does not effectively carry out its regulatory and protective functions, and sometimes simply “does not notice” many dangerous antisocial phenomena.

It should be noted that the optimal combination of ethical and legal has always been an intractable problem for all legal systems. And, as experience shows, ideal harmony cannot be achieved here - contradictions inevitably persist, new ones arise, and old ones get worse. They can be reduced, weakened and smoothed to some extent, but not completely removed.

Not a single society has reached the heights of morality, since morality is not an absolute constant, but a relative one. This is an endless search for ideal and harmony, balance and conformity, adequacy and proportionality, justice and expediency, humanism and retribution. This is a movement towards development, improvement and self-improvement, infinity and progress.

Questions and tasks for independent work:

1. 1.Give the concept of a socionormative system.
2. What is the essence of non-normative regulation? Describe its types.
3. What are the types of social regulators and list their main features?
4. What is the relationship between law and morality?
5. Show the differences between law and morality according to basic criteria.

Additional literature on the topic:

1. Ageshin Yu.A. Politics, law, morality. Right. M. 1982.
2. Baranov V.M. Corporate and legal norms: some problems of interaction in modern Russia // Power and society. Social aspects of interaction. N. Novgorod. 1997.
3. Baturin Yu.M. Problems of computer law. M. 1991.
4. Golovkin R.B. Law in the system of normative regulation of modern society. Vladimir. 1999.
5. Emelyanov S.A. Law: definition of the concept. M. 1992.
6. Kozlikhin I..Yu. Law and politics. St. Petersburg 1996.
7. Maltsev G.V. Social justice and law. M. 1977.
8. Maltsev G.V. Social foundations of law. M., 2008.
9. Maltsev G.V. Moral foundations of law. M., 2008.
10. Marx K., Engels F. Criticism of the Gotha Program (any edition).
11. Matuzov N.I. Law in the system of social norms //Jurisprudence. 1996. No. 2.
12. Motovilovker E.Ya. Theory of regulatory and protective law. Voronezh. 1990.
13. Cherdantsev A.F. The concept of technical and legal norms and their role in the formation of social relations /\Soviet State and Law. 1964. No. 1.
14. The pure doctrine of law by Hans Kelsen. M. 1987.

LECTURE 8. PROBLEMS OF THE ESSENCE OF LAW

8.1. Basic concepts of legal understanding (Marxist, psychological, normativist, natural law, sociological)

People are looking for a concept of law that would absorb all the richness of this social phenomenon. Understanding the nature of law has a rich history. Natural law, historical, realistic, psychological, normativist, sociological, positivist and some other doctrines of law are known. They differ significantly from each other. If for one of them law is, first of all, a natural, natural phenomenon (Cicero, Locke), then for another it is an expression of the historically developing spirit of the people (Savigny, Pukhta), for the third it is an interest protected by the state (Iering, Trubetskoy), for the fourth – imperative experience of people (Petrazhitsky, Marilla, Frazer), for the fifth – an external regulator of social life (Stammer, Kelsen), for the sixth – a system of legal relations, people’s behavior (Erlich, Shershenevich), etc. Despite all the differences, many of these doctrines represented any step in understanding the nature of law. Along with ideas that turned out to be unjustified, they contained rational aspects that contributed to the general doctrine of law. In this regard, they should be described in more detail.

The study of the phenomenon of law as an integral social institution is called legal knowledge. Methodology of legal knowledge are special areas of science that study the nature, principles and methods of studying law. These principles and methods of knowledge of law are based, in turn, on ontological axioms-postulates about the specifics (nature) of social reality. Therefore, depending on the ideological attitudes of the researcher, within the framework of the methodology of legal knowledge, there are several types of legal understanding that correspond to the main directions of philosophical thought. Types of legal understanding– these are philosophical and legal concepts containing the initial ideological principles for explaining law as an independent social phenomenon. These fundamental worldview concepts, due to their universality and fundamental nature for the researcher, are philosophical by their very nature. That part of philosophy that is concerned with explaining the meaning, patterns, and nature of law is called philosophy of law. Therefore, various concepts of legal philosophy form the main content of the types of legal understanding, revealing in different ways the essence of law as a socio-legal phenomenon.

The main philosophical schools correspond to several types of legal understanding. Let us consider the main methodological approaches to legal knowledge within the framework of materialism and idealism.

An example of a materialistic type of legal knowledge is Marxism. For Marxist type of legal understanding The following provisions are typical.

1. The essence and development of law, like the state, are ultimately determined by the material conditions of society, primarily by the type of production relations, determined, in turn, by the prevailing forms of ownership of the means of production. “My research led me to that result,” wrote K. Marx in the preface to the work “On Critique political economy“- that legal relations, just like the forms of the state, cannot be understood either from themselves or from the so-called general development of the human spirit, that on the contrary, they are rooted in material life relations, the totality of which Hegel, following the example of the English and French writers of the 18th century, calls “civil society,” and that the anatomy of civil society is to be found in political economy.”

2. Law, like the state, is a class phenomenon by its social nature. This means that it is only possible in a class society; appears with the division of society into classes; ultimately expresses the interests of the economically and politically dominant class (for example: in a capitalist society - the bourgeoisie, in a socialist society - the working class and all working people).

3. Law, although conditioned by economic relations, has, however, relative independence as a phenomenon of social consciousness and national culture, exerting an active reverse impact on all spheres of social life, including the economic one.

4. With a change in the type of production relations, which occurs, as a rule, during a social revolution, the class essence of law also changes, since it begins to reflect the interests, first of all, of the class that receives political and economic power.

5. With the disappearance of classes within the framework of the communist formation, law will lose its political character and will gradually die out along with the state. Human relations will be regulated by non-political social norms (rules of communist society), reflecting the harmonious and non-antagonistic interests of members of society.

Thus, Marxism sees the essence of law, first of all, in the fact that it is the state will of the ruling class elevated to law, the content of which is determined (ultimately) by the material, production conditions of its existence.

On the basis of philosophical idealism and its trends, several types of legal knowledge have been formed, among which the most fundamental are legal positivism and natural law doctrine.

Natural legal type of legal understanding has deep sources in the political and legal thought of Ancient Greece, Ancient Rome, was developed in the Middle Ages, and greatest flourishing and modern sound - during the period of bourgeois revolutions of the 17th-18th centuries. The essence of this approach to legal knowledge is to evaluate law from the standpoint of justice, where only those norms of the legislator that correspond to “natural nature” - human nature, the nature of things, the nature of the universe - can be considered genuine, “natural” law. The natural type of legal understanding is characterized by the following basic provisions.

1. Theoretical and practical distinction between law and law. Along with positive (adopted by the legislator) law, there is a higher, real - “natural” right inherent in man by nature (the right to life, to freedom, to resist oppression, property, etc.). As V. A. Chetvernin notes, natural law methodology in explaining and assessing legal phenomena proceeds from the fact that “law” is a social phenomenon of the ordering of human life, immanent in human existence, which in this quality has greater value than the law, that law is a necessary regulator of interhuman relations, which differs from a “derivative”, “imperfect”, “insufficient”, and sometimes even “unacceptable” law in that the law is always “true”, “reasonable”, “natural”, “really”, “ humanely”, etc.”

2. Not every legal law, even if impeccable in form, contains law. The content of any law must be subject to verification from the standpoint of its compliance with “natural” human, social, natural, etc. norms: everything that contradicts “natural” law in positive law cannot be considered law.

3. Law and morality are conceptually unified: the term “legal” itself means the substantive compliance of legal prescriptions with the requirements of morality, where morality is the determining law-making and law-enforcement determinant of law.

4. The source of human rights lies in “human nature” itself. A person acquires his rights and freedoms from birth, and these rights cannot be either “granted” to a person by the state or alienated in favor of the latter.

This doctrine played a big role in the criticism of feudalism as a system that does not correspond to “human nature”, serving as the theoretical basis for the bourgeois revolutions of the 17th-18th centuries. The ideas of this school are reflected in the US Declaration of Independence of 1776 and the French Declaration of the Rights of Man and Citizen of 1789. Currently, this type of legal understanding has become the basis of various legal and philosophical concepts of law.

Positivist type of legal understanding is based on positivism (positivus - lat.: positive) - a direction of philosophical idealism that defends the principle that the only source of true, valid (“positive”) knowledge can only be something concrete (concrete, i.e. natural science, concrete, i.e. in laws, decrees, regulations, etc. law, etc.). The position of morality, philosophy, axiology (theory of values), due to their high abstractness, cannot be verified through experience and therefore they are false, lacking an objective criterion for verification (verification), i.e., speculative. Only that which can be verified by experience, that positively exists and is recorded by our senses, is true. In accordance with these philosophical premises, positivist legal knowledge proceeds from the following provisions.

1. In contrast to the natural law doctrine, positivism identifies law and law issued by government authorities. Any norm in content is recognized as valid law, if only it, according to its formal and procedural criteria, has received official recognition by the state. Positivists consider it absolutely unnecessary for law to check its compliance with some abstract principles of “human nature” in view of the meaninglessness of such verification. Any criterion for the “truth” and “naturalness” of a norm will only be a product of the inspector’s biases, not amenable to scientific verification. The only basis for law can only be the very fact of its existence in certain official sources - laws, decrees, etc.

2. If the natural legal type of legal understanding meaningfully identifies law and morality, then positivism, on the contrary, strictly distinguishes them. For law, the legal form itself is of decisive importance, and not the moral content of the law, decree, etc. Of course, the form and content must be adequate, but in case of discrepancy, the sanction of the state and inclusion in the existing legal order are of decisive importance for the law.

3. The source of human rights, according to this approach, is in legislation. A person has rights not by virtue of some “nature” of his, but as a citizen of a particular state, and the latter defines these rights in the Constitution.

4. The subject of the study of law should not be some extra-state principles of goodness and justice, but only the “positive” norms themselves, written in the texts of laws and thus accessible for direct observation and perception. The researcher must analyze these texts in accordance with the rules of logic, grammar, legal technique, etc.

Thus, positivism denies “natural law” and understands by law only legal acts - the results of the law-making activities of the state, or some other empirical (specific) facts of reality.

Within the framework of the positivist type of legal understanding, several independent concepts of law have developed.

Normativism, the author of which was the German lawyer Hans Kelsen, divides the sphere of life of the subject into two areas - the area of ​​the existent and the area of ​​the ought, to which he includes law. It, therefore, has no justification outside the sphere of norms of obligation and its strength depends on the logic and harmony of the system of legal norms - a pyramid of norms, where each norm derives its legitimacy from a norm of higher legal force. The force of all law is based on the "fundamental rule" adopted by the legislator. At the base of the pyramid of norms are individual acts - court decisions, contracts, administrative orders, which are thus included in the concept of law. “A norm,” wrote G. Kelsen, “that gives an act the meaning of a legal (or illegal) act, is itself created through a legal act, which, in turn, receives legal meaning from another norm. If a certain factual composition from the point of view of law is the execution of a death sentence, and not intentional murder, then this quality of it - which cannot be sensually perceived - is revealed only by the effort of thought, i.e. when compared with the criminal and criminal procedure code. The fact that the exchange of letters means, from the point of view of law, the conclusion of a contract, follows solely and exclusively from the fact that the actual circumstances of this correspondence correspond to the conditions defined in the civil code. The fact that a certain assembly of people is a parliament and that in legal terms the result of their activity is the law - in other words: the fact that these events have such a meaning - means that the entire set of circumstances related to this corresponds to the norm of the constitution. In other words, the content real events consistent with the content of a certain norm that is recognized as valid. Legal knowledge is aimed at studying those norms that have the character of norms of law and give certain actions the character of legal or illegal acts.”

Another current of positivism is psychological theory L.I. Petrazhitsky, which, like other positivist doctrines, excludes its essential and axiological (value) aspects from the concept of law, defining this concept by empirical (specific) features. In theory L.I. Petrazycki law recognizes not the formal norm of the legislator, but this mental reality - the legal emotions of people. These emotions are of a so-called imperative-attributive nature, that is, they represent the experience of a feeling of obligation to do something (imperative) and a feeling of entitlement to something (attributive norm). In emotion, these two feelings are inextricably linked. All legal experiences are divided into two types: the experience of positive (established by the state) and the experience of intuitive (autonomous, personal) law, which is not associated with the positive. Intuitive law, unlike positive law, acts as a genuine regulator of behavior and therefore should be considered as real law. Its universal and specific characteristics L.I. Petrazycki considered bilateral active-passive human experiences - emotions, which were assumed to be elementary particles of the phenomenon of law. Thus, this doctrine considers the types of experience of intuitive law to be worry about a card debt, children’s experience of their responsibilities in the game, mutual experience of rights and responsibilities in criminal communities, which thus form “gambling law”, “children’s law”, “pathological law” "(mentally ill), etc. As we see, the boundaries of the concept of law, outlined by normativism (formal acts of state power), are significantly expanded and this concept includes the mental functions of a person. L.I. Petrazycki believed that recognizing as law only what is established by state power unjustifiably narrows the range of phenomena representing law. “... In the depths of the phenomenon of the human spirit lies, so to speak, the third kind of law, the third idea of ​​law, the mother and common source of the established two categories of law and the reason for the fact that both of these different phenomena are called law.” Because of this, the psychological doctrine of L.I. According to the initial methodological principles, Petrazhitsky is adjacent to positivism: for law, the content of legal experiences is indifferent: the description of the latter is put in place of the study of the essential and axiological aspects of law.

The third type of methodology of legal positivism is sociological theory of law. It is characterized, as well as the natural law doctrine, by the distinction between law and law. However, the essence of this distinction is different. Law as a matter of course (in laws) is not related to the essential principles of the human spirit (natural law), but to the so-called “real law”, or “real law”, or “living law” embodied in legal relations, created by various subjects of social relations in the process of life. Law here is not the highest ought - ideals, values, higher reason, divine will, as in natural law, but empirical facts of behavior of subjects of legal relations - individuals and legal entities. The norms of “living” law must somehow be distinguished from specific behavior. This function - the formulation of law - is carried out, according to this approach, by judges in the process of jurisdictional activities. They look for norms of “real law” and make decisions on their basis, without being strictly bound by government regulations. In this case, the judge acts not only as a law enforcer, but also as a subject of lawmaking, making the actual legal on the basis of specific expediency.

Thus, in the types of legal knowledge, various methodological guidelines on the initial problems of the relationship between being and consciousness, ought and existence, matter and spirit are expressed. These phenomena are closely interrelated: therefore, between the types of legal knowledge, despite the significant differences in their epistemological positions, there are no impassable partitions. So, for example, on the question of the nature of human rights, Marxism largely agrees with the natural law school, recognizing the pre-legislative origin of human rights, but, unlike it, interprets these rights not idealistically, but concretely historically and materialistically - as a phenomenon determined by the totality social relations in which a person is included. Both doctrines deny the conferment of human rights by the state.

Marxism and positivism have many points of contact. All this testifies to the integrity and continuity of the process of legal knowledge.

The existence of different concepts of legal understanding often does not solve the problem of adequate knowledge of legal phenomena, but only complicates it, since options for an “expanded” understanding of law come into conflict with traditional constructions of legal theory.

On the other hand, one of the reasons for the permanent criticism of normative legal understanding is the inconsistency of the traditional categorical apparatus of jurisprudence with the emerging new legal categories and concepts.

In his famous work “The Pure Theory of Law,” G. Kelsen emphasized that in order to define law, one should start with word usage, i.e. establish what the word “right” means in German and its equivalents in other languages ​​(law, droit, diritto, etc.). He further proposed to find out whether the social phenomena denoted by this word have similar characteristics that distinguish them from other similar phenomena, and whether these characteristics are significant enough to serve as elements of the concept of social science. As a result of such a study, the author concluded, it could become clear that the word “law” and its foreign language equivalents designate such different objects that no general concept can cover them all.

Based on the etymological meaning of the word “legal” in Russian, it should be associated with everything that is right and fair in our lives. Traditionally, in the domestic legal literature it was believed that law in this regard is inseparable from justice. “Right”, “legal”, “fair” are one series of words that are close in meaning.

There are several meanings when using the term "right". Firstly, “right” as a Russian word is used in the sense that something belongs to someone: power, will, the possibility of behavior. Here the word “right” is used in contrast to words such as “obligation” and “duty”. Secondly, it is known to use the term “law” in the sense of a rule of behavior established or accepted in public life. Law, understood in this meaning, currently has many varieties: common law, natural law, canon (church) law, Islamic law, international law, corporate law, shadow law.

In legal science, these semantic differences can be traced to a greater extent in relation to the use of such concepts as “objective law” and “subjective law”, and to a lesser extent – ​​in relation to the consideration of natural and positive law.

The concepts of subjective and objective law should not be confused with the problem of objective and subjective in law. As A.B. wrote Vengerov, the result of determining the diverse content of law at the theoretical level is its understanding as objective and subjective in law. Objective when this content is determined by socio-economic, political and other needs. And subjective when this content is not justified, but, on the contrary, arbitrary, refuted by all social practice.

As for the categories “objective law” and “subjective law”, they represent conventional phraseological concepts (expressions, phrases) accepted in world legal science. It is impossible not to notice that if the concept of “law” was used without any reservations, then it always meant objective law. Without the use of the word “subjective” law is usually thought of as objective (a set of norms), even if the word “objective” is absent.

However, it should also be pointed out that in jurisprudence there has long been a protest against the word “subjective”. Some authors even made proposals to replace it with the terms “personal”, “individual”, “specific”, etc. The word “subjective” suggested some kind of unusual and mysterious right, and not one that all people in the world have and enjoy. Everyday life. However, this protest was not directed against the very essence of the division being carried out.

The majority of domestic scientists are convinced that legal science used the terms “objective” and “subjective” not by chance and not only in order to distinguish between two closely related phenomena, but in order to more fully reflect their socio-legal nature, functional role and social purpose.

It is curious that even L. Duguis, who consistently denied the significance of subjective individual rights and replaced them with the theory of “social functions,” nevertheless wrote that the expressions “objective law” and “subjective law” are convenient, clear and precise and therefore their use “ quite legal." Firstly, the well-known expediency of the term “subjective” is due to the fact that all bearers (holders) of rights and obligations provided for by law in legal science are called “subjects of rights.” Secondly, the words “personal”, “individual” right would essentially express only the moment of ownership of the subject’s right, but would not reflect the philosophical aspect of the concept. The fact is that “subjective right” not only indicates that the right belongs to the subject, but also reflects the fact that the right belonging to the subject depends, to a certain extent, on his personal desire and discretion, especially in terms of use. The norm of law is objective: it does not depend on the will and desire of an individual, it cannot be disposed of as something personal, individual. Being a general, impersonal, abstract rule, the norm does not and cannot belong to anyone.

Thus, subjective law is subjective in the sense that, firstly, it is associated with the subject and, secondly, depends on his will and consciousness. Objective law is objective in the sense that, firstly, it is not confined to a specific subject and, secondly, is not associated with his will and personal discretion.

In the literature, it has been repeatedly proposed to combine two concepts of law into one, or more precisely, to include the system of subjective rights of citizens, along with legal relations and legal views, in the content of objective law or simply law (S.F. Kechekyan, Ya.F. Mikolenko, A. A. Piontkovsky, L.S. Yavich, etc.). We are talking about the so-called broad interpretation of law. These aspirations intensified with the recognition of natural law theory.

However, this position (note, not shared by us) does not prevent us from seeing in law, understood so broadly, two sections, two branches: mandatory regulations emanating from the state and the legal capabilities of individuals. One concept did not absorb the other. Objective and subjective law still remain independent categories, closely related, but reflecting different aspects of legal reality. We can agree that “attempts to unite objective and subjective law with a single concept of law cannot be justified, since these phenomena lie on different planes of legal reality.”

It should be stated with confidence that the recognition of the theory of natural law does not shake the doctrine of objective and subjective law as a whole, for in all civilized societies where the ideas of natural law doctrine dominate, the division of law into objective and subjective, nevertheless, is preserved. After all, even “natural” rights, without securing and guaranteeing them by the positive legislation of the relevant states, may turn out to be empty declarations.

Today, the parallel existence of natural and positive law also raises few doubts: these concepts have differed in the world political and legal experience for thousands of years. That is why natural law cannot be introduced into the general definition of law, because this will undermine the main idea of ​​natural doctrine. After all, the essence of this doctrine is precisely not to confuse two different phenomena - the laws of the state and the “innate” rights of the individual. J. Del Vecchio noted that it would be a mistake to put the idea of ​​natural law, i.e. a legal ideal, in place of the concept of law, as well as trying to clarify this ideal by defining the concept of law, since they belong to different spheres of existence, which allows them to exist independently of each other.

Both identification and opposition of natural and positive law are unacceptable and harmful. The recognition and legislative consolidation of natural human rights gives the division of rights into objective and subjective a new sound and meaning, especially since we are, in fact, talking about the same problem, only in its different aspects, organically complementing each other.

In modern conditions, natural rights and freedoms have long been enshrined by most states in their regulations and confirmed in interstate and international documents. Thus, natural rights and freedoms are sanctioned by the state and turned into an organic component of legal regulators. As noted in the legal literature, today in a civilized society there is no basis for contrasting natural and positive law, since the latter consolidates and protects natural human rights, constituting a unified system of legal regulation.

In modern foreign literature, the problem of the relationship between objective and subjective law is naturally supplemented by an indication of positive law: “Objective law is a system of rules governing life in society, the observance of which, in turn, is guaranteed by public authority. Objective law is often identified with positive law, that is, with the set of legal rules in force at a given moment and in a given society. However, such a vision of the subject turns out to be narrowed, since the state of law in a certain society at a certain moment cannot be considered separately from larger phenomena, cannot be considered in isolation from its sources or from the general context, from trends in the sphere of ideology. However, depending on the situation (unlike, for example, English) in French(as in Russian - from the author) the same term denotes both the objective law itself and the prerogatives recognized for individuals or groups of individuals, that is, those very subjective rights that objective law assigns to legal entities and which give these legal entities the right to own property or the right to power over others.” These very fair provisions can be taken as a basis for further reasoning.

True, in domestic literature recent years Other views emerged regarding the relationship between positive and objective law. So, Ya.V. Gaivoronskaya, distinguishing between legal norms and legal norms, believes that law as a whole can be defined as a system of legal norms designed to reflect the essential and substantive aspects of a legal phenomenon, and positive law will appear as a system of legal norms - the most formalized and associated with the state in the way of formation and provision. Therefore, positive law is part of objective law.

In addition, this article also contains the opinion of V.K. Babaev, who considers legal norms to be components of positive law, and legal norms to be natural rights. In addition, recently a proposal from V.A. Muravsky distinguish between law (as containing legal norms) and actual law (as containing legal norms developed in the process of implementing social activities). Moreover, if Ya.V. Gaivoronskaya believes that a legal norm is embodied in the public consciousness or (to a lesser extent) in a behavioral process, then V.A. Muravsky argues that actual law exists only as an activity, a social movement, conceptualized in terms and laws of jurisprudence.

The methodological disadvantage of this kind of concept of “law” and corresponding definitions, in our opinion, is that through them they try to cover both legal phenomena in the legal sense, ideas about which are very specific and do not cause serious controversy (for example, subjective legal law, positive law), and those social phenomena that cannot be regarded as law in the legal sense (such as natural law, legal consciousness - intuitive law, as “living”, social law– the established order of relations, etc.). Of course, in real social life, all these phenomena form a complex interacting system, exerting a certain influence on each other, which legal science can only comprehend in conjunction with other social sciences. But the fact that the proper (specific) object of knowledge of the theory of law should be the “law of lawyers”, i.e. law in the legal sense cannot be questioned (by the way, like the very real existence of such a very peculiar social phenomenon). No other science can claim its exclusive study, while natural law, intuitive or social (informal) law can and should be studied in

Social science. A complete course of preparation for the Unified State Exam Shemakhanova Irina Albertovna

3.8. Types of social norms

3.8. Types of social norms

System of social norms - part of the regulatory system, since there are two types of norms in society: technical(used to regulate human behavior in his relations with nature and technology); social.

Social norm – 1) these are wishes, expectations and requirements that determine the framework of social action; 2) general rules and patterns of behavior of people in society, determined by social relations and resulting from the conscious activity of people; 3) socially approved or legally established rules, standards, patterns regulating the social behavior of people. Social norms develop historically, naturally, are binding on those to whom they are addressed, and have a certain procedural form of implementation and mechanisms for their implementation.

Social norms are divided into: the method of their formation (creation); content; the method of ensuring their operation (security, protection).

Classification of types of social norms

1. a) political- rules of behavior that regulate relations between nations, classes, social groups, aimed at conquering, retaining and using state power. These include legal norms, programs of political parties, etc.;

b) cultural norms, or ethical standards– rules of behavior concerning the external manifestation of attitude towards people (form of address, clothing, manners, etc.);

V) aesthetic standards– rules of behavior regulating attitudes towards the beautiful, the mediocre, the ugly;

G) organizational norms determine the structure, procedure for the formation and activities of government bodies and public organizations (for example, charters of public organizations).

2. a) Moral standards- rules of behavior that are derived from people’s ideas about good and evil, about justice and injustice, about good and bad, are protected by the power of public opinion and internal conviction. Violators are subject to social sanctions: moral condemnation, expulsion of the offender from the community, and others.

b) Norms of customs- rules of behavior that have become a habit as a result of their repeated repetition. Moral customs are called morals. A variety of customs are considered traditions which express people’s desire to preserve certain ideas, values, useful forms behavior. Another type of custom is rituals regulating the behavior of people in the everyday, family and religious spheres.

V) Corporate standards– rules of behavior created in organized communities, applicable to its members and aimed at ensuring the organization and functioning of this community (trade unions, political parties, clubs of various kinds, etc.). Corporate standards are enshrined in relevant documents (charter, program, etc.), i.e. they have written form expressions. Their implementation is ensured by the internal conviction of the members of these organizations, as well as by the public associations themselves.

G) Religious norms- rules of conduct contained in various holy books or established by the church. Security and protection from violations of religious norms is carried out by the believers themselves and the activities of the church.

d) Political norms– norms established by various political organizations. The implementation of such norms is ensured by the internal beliefs of people included in these organizations, or by the fear of being excluded from them.

e) Legal standards- formally defined rules of conduct established or sanctioned by the state, the implementation of which is ensured by the authority and coercive power of the state.

3. Norms-expectations(outline the framework of socially approved behavior) and norms and rules(define the boundaries of acceptable behavior and define types of unacceptable behavior).

Functions of social norms: promote social integration; serve as unique standards of behavior; contribute to the control of deviant behavior; ensure the stability of society.

General features of social norms:

– represent rules of conduct of a general nature, that is, they are designed for repeated use and operate continuously over time in relation to a personally indefinite number of persons;

– characterized by such features as procedurality (the presence of a detailed regulated order (procedure) for their implementation), authorization (reflects the fact that each type of social norms has a specific mechanism for implementing their requirements);

– determine the boundaries of acceptable behavior of people in relation to the specific conditions of their life.

Social norms exist in the form of stereotypes (standards of behavior); the dominant system is manifested in real behavior social values- the most general ideas about the desired type of society, the goals that people should strive for, and the methods of achieving them. The most important function of social values- play the role of selection criteria from alternative courses of action.

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