The concept of method and methodology of legal science.

The connection between method and science - science is born from the method, science contains methods.

Each scientific position that reveals patterns is at the same time a method of knowing the world. Those. any knowledge can be considered as a method.

Classification of methods by Raw:

1) the general philosophical method. Its universality is expressed in the fact that this method is used in all specific sciences and at all stages, 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 specific sciences, but the scope of which is limited to solving certain cognitive problems;

3) special methods of legal science. They are made up of methods, techniques that were originally 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 for the knowledge of political and legal phenomena and can only be applied within the limits 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 stages, stages of scientific research. He 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. objectively, that the surrounding reality, the laws of its development are accessible to human knowledge, that the content of our knowledge is objectively predetermined by the existence of a real, independent of people's consciousness of the surrounding world.

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

3. Special = specific = private scientific. - are characteristic of specific branches of scientific knowledge, with the help of them it is possible to achieve a certain deepening of knowledge of state-legal phenomena. They enrich the general and general scientific methods, concretizing them in relation to the peculiarities of the study of political and legal reality. For example, spectral analysis in physics, investigative experiment in legal science, etc.

Method - The path of research, theory, teaching - a way to achieve a goal, solve a specific problem; the set of techniques, methods by which this subject is studied, consists only of rules, principles of knowledge. Describing the role of the correct method in scientific knowledge, F. Bacon compared it to a lamp that illuminates the way for a traveler in the dark. He said that even a lame man walking on a road outstrips one who runs without a road.

These rules and principles are not formulated arbitrarily, but on the basis of and in accordance with the objective laws of the subject of research, reflected in the concepts and categories of science. The subject of knowledge determines the methods of research.

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

The methodology of legal science is a set of principles, techniques, and methods of scientific activity identified by science, used to obtain true knowledge that reflects the objective reality. this 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, this is a system of theoretical principles, logical techniques and special research methods conditioned by the philosophical worldview, which are used to obtain new knowledge that objectively reflects the state-legal legal reality.

On the one hand, methodology is understood as a set of methods, procedures used in the process of scientific research.

On the other hand, methodology refers to the doctrine of the scientific method, principles and methods of organizing research activities.

Methodology, in the second meaning, is a general theory of the method, which was formed in connection with the realization of the need to study and develop methods of scientific research, to systematize ways to obtain new knowledge. Methodology of science - philosophical discipline - part of epistemology (theory of knowledge)

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, universal philosophical laws and categories, general and particular scientific methods, i.e. not only a system of methods but also a doctrine about them. Therefore, it cannot be reduced only to the doctrine of methods. In addition, the methodology is not reduced only to its constituent components, it has its own patterns of development - the components of methodology interact with each other, and therefore acquire properties that are different from their single existence: general theoretical concepts permeate the worldview, universal philosopher laws and categories illuminate the boundaries of applicability general and private scientific research methods. The correlation of method and methodology is like a dialectical correlation of the whole and the part, system and 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 determined by the principles of materialistic 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.

Social conditions for the emergence of the methodology of scientific knowledge appeared thanks to G. Galileo. In modern times, Bacon drew attention to experience and empirical methodology, Descartes developed a rationalistic methodology. In modern methodology, these two levels are considered as components of a single methodology.

Depending on the level at which scientific research is carried out and what goals it pursues, appropriate methods of cognition are also applied. Therefore, it is advisable to divide these methods into three more groups:

1) methods of empirical research,

2) methods used both at the empirical and theoretical levels of the study;

3) methods of theoretical research.

The methods used at the empirical and theoretical levels include: abstraction, analysis and synthesis, induction and deduction, modeling, historical and logical methods of cognition.

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Rationality(from Latin ratio - mind) - in a general sense, it is explained as a relatively stable set of rules, norms, standards, standards of spiritual and material activity, as well as values generally accepted and unambiguously understood by all members of this community. In broad philosophical terms, the problem of rationality involves the analysis of the dialectic rational and reasonable.

A prerequisite for scientific rationality is the fact that science masters the world in terms. Scientific and theoretical thinking is primarily characterized as a conceptual activity, while, for example, in art, the main form of mastering the world is an artistic image. It is the operation of concepts that allows science to perform the main cognitive functions: description, explanation and prediction of the phenomena of 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 last of all; 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 ordinary knowledge. The basis of consistency and evidence is the logical interdependence of 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 the image of rationality par excellence. The scientific community behaves as the very paradigm of institutionalized rationality. It is presented in as owning something significant, namely, the scientific method that generates the "logic of justification" (justification). In other words, this method provides methods for objectively evaluating the dignity of scientific theories, "- such a point of view on scientific rationality and the scientific method is shared 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 ideal of scientificity.

These fundamentals are closely intertwined with the intellectual tradition that was formed back in antiquity, and therefore for a long time they had the character of some evidence, 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 science in the natural sciences of the XVII-XVIII centuries. an infallible belief in the reliable truth of scientific laws and the special reliability of scientific research methods was considered .. Everything changed after the revolution in "natural science" that arose at the end of the "XIX" - the beginning of the "XX" "centuries, when natural radioactivity was discovered elements, thanks to which it was found 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 testified to the fact that scientific laws, which were considered irrefutable truths in classical science, are relative. Therefore, the former 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 their 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 social and cultural 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 take place in the foundations of scientific knowledge, during which post-non-classical science is being formed.

Basic principles:

The paradigm of integrity is affirmed, according to which the universe, biosphere, noosphere, society, man, etc. represent a single entity. 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; the theory of biological evolution and the concepts of the biosphere and noosphere developed on its basis).

The paradigm theory is synergetics - the theory of self-organization that studies the behavior of open non-equilibrium systems.

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

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

Science includes such concepts as uncertainty, stochasticity, chaos, bifurcation, dissipative structures, etc., expressing non-equilibrium characteristics of reality.

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

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

The formation of post-non-classical science does not lead to the destruction of the methods and cognitive attitudes of classical and non-classical research. Post-nonclassical science will only more clearly define the scope of their application.

Method tgp 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 of 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, rules that take into account the specifics of the state or law. So, in the comparative legal method, the general principles of comparison receive a concretized expression.

The subject of knowledge determines the methods of research.

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

The rules, principles of cognition, applied at any one stage of scientific cognition or for solving one cognitive task, together form a separate specific method. So, the rules used in the process of interpreting the rules of law, in their system form a method of interpreting the rules of law, the rules governing the process of obtaining general knowledge from single facts - induction.

Classification of methods by 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, stages of scientific knowledge;

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

3) special methods of legal science. They are made up of methods, techniques that were originally 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 for the knowledge of political and legal phenomena and can only be applied within the limits of legal science. These include methods of interpretation of law, comparative legal method and some others.

Common classification of methods:

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

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 that are used to obtain new knowledge objectively reflecting state-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, universal philosophical laws and categories, general and particular scientific methods, i.e. not only a system of methods but also a doctrine about them. Therefore, it cannot be reduced only to the doctrine of methods. In addition, the methodology is not reduced only to its constituent components, it has its own patterns of development - the components of the methodology interact with each other, and therefore acquire properties that are different from their single existence: general theoretical concepts permeate the worldview, universal philosopher laws and categories illuminate the boundaries of applicability general and private scientific research methods. The ratio of method and methodology - as a dialectical ratio of the whole and the part, the system and the element.

Methodology is not an independent science, it only "serves" other sciences.

The main methodological traditions in the history of legal science. Change of paradigms

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

When referring to these research tools, the theory of state and law ensures its compliance with the current 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 for its development, attracting 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. As applied to law, the method of alternatives is the identification of contradictions between various hypotheses about state-legal phenomena. The origins of this method in the most general form are in the philosophy of Socrates: the method of disclosing contradictions was called "maieutics" (assistance in the birth of a new one). Socrates saw the task in encouraging his interlocutors to find the truth through a dispute, criticizing the interlocutor and putting forward his hypothesis of the issue under discussion. During the discussion, all answers were recognized as incorrect and rejected one after another, new answers were put forward instead of them, which, in turn, were also recognized as incorrect, etc. Socrates believed that truth could be found by the method of maieutics.

The developer of this method is 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 in the knowledge of an object to existing hypotheses about it, and then, subjecting them to criticism and thereby pushing alternatives together, to identify new knowledge about the object. “The theory is criticized from many different angles, and criticism allows you to identify those points of the theory that may be vulnerable,” he says.

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 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 the memory, in which it is stored (conserved) until as long as it is not demanded by some social signal (the need for written or electronic reproduction, the exchange of oral information, practical activities, etc.)”.

Modern law, which has extensive methodological tools, cannot pass by those theoretical developments that appeared due to such a relatively new one that developed in the second half of the 20th century. scientific direction as synergetics. Born 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 was formed as an independent scientific direction in the second half of the 20th century. The term synergetics in Greek means "joint action". Introducing 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 cooperation of specialists from different fields for its development.

The ideas offered by synergetics relate not only to individual special cases in the field of physics and chemistry, but also to worldview 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 the multivariance (nonlinearity) of possible development, and are capable of deriving legal science to a new higher level of knowledge.

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

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

To begin with, it is necessary to answer the question, do complex open systems fall into the field of view 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 aggregates that are systemic in nature and include a number of fairly independent components (subsystems) that develop, 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 temporal criterion, the progressive, and, therefore, irreversible movement of society, and therefore of state-legal phenomena, forward 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, the system of law and the system of legislation and is the most obvious example of a complex and open system ). These are also those phenomena that can be considered as components (subsystems) of more complex (not necessarily state-legal) associations, the life of which also proceeds according to the laws of self-regulation. For example, political, legal, economic systems are elements of society as a whole (as a combination 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-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 questions that exist in science. In this regard, Yu.Yu. Vetutnev to explore the legal system with the help of synergetics.

A.B. Vengerov believes that synergetics "offers a new perspective on the relationship between necessity and chance, on the role of chance in biological and social systems."

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

In this regard, the assessment of synergetics by philosophers is very interesting. So, E. Knyazeva and S. Kurdyumov point out that "synergetics can act as a methodological basis for prognostic and managerial activities in the modern world", emphasizing that the use of synergetics will make it possible to make the transition to non-linear (and, therefore, multidimensional) thinking , contributing to the convergence of the traditions of the West (with its linearity) and the East (with its holistic character), distinguished 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 synergistic approach can help take a fresh look at the state-legal reality in general, at the role and value of the state and law in the life of society.

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

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

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 single system of concepts, principles, laws and categories, philosophy acts as a worldview basis for the knowledge of all phenomena of nature and society. It is a kind of key to the study, including the state and law. Only using such dialectical categories as essence and phenomenon, content and form, cause and effect, necessity and chance, possibility and reality, it is possible to correctly and deeply comprehend and analyze the nature of many state-legal phenomena. The general philosophical method - the method of dialectical materialism is used in all sciences, at any stages, stages of scientific research.

He 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. objectively, that the surrounding reality, the laws of its development are accessible to human knowledge, that the content of our knowledge is objectively predetermined by the existence of a real, independent of people's consciousness of the surrounding world. The materialistic approach determines that the state and law are not self-contained categories, independent of the surrounding world, not something invented by great thinkers and rulers, that their essence is objectively predetermined by the socio-economic structure of society, the level of its material and cultural development.

The essence of the dialectical approach to scientific research, justified by the great German philosopher G. Hegel and developed further 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, the 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 the necessary laws of human cognitive activity.

Dialectics presupposes a constant struggle between the new and the old, the obsolete and the emerging, the denial of negation as stages in the movement of the elements of nature and society (the present rejects certain elements of the past, and the germs of the future, in turn, deny the present that has not justified itself), the understanding that there is no abstract truth, it always concrete, 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, after physics, was the original name of the philosophy course at Plato's Academy in Athens in the 6th-5th centuries BC. As a method, it found itself in the philosophy of the Middle Ages in the writings of Augustine of the Blessed, Thomas Aquinas. Ideas of immutability, static nature of the world created by God. The Creator is proclaimed as the source of non-existent changes.

flaws:

1) dogmatism - reliance on church dogma, inability to creatively analyze being;

2) eclecticism - unsystematic thinking, inability to apply the most effective method of analysis;

3) sophistry - strive to emphasize one of such a number of approaches, but as a rule, mistakenly replaces an effective method with an inefficient one.

In the 18th and 19th centuries, metaphysics allows for the recognition of variability, i.e. recognition of the importance of smooth, consistent change. + accepts social reforms; - reject the revolution.

Metaphysics cognizes that which cannot be cognized by other knowledge (religion).

Dialectics - the ability of scientists to conduct scientific debate.

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

Ancient dialectics is a “spontaneous” phenomenon.

Gradually, the dialectical method is increasingly associated with the development of science.

3 laws of dialectics:

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

2. The transition of quantity into quality (change in a revolutionary way. The number of changes turns into quality);

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

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

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

Principles of dialectics:

1) Universal connections (in the garden bead - in Kyiv - uncle)

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

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

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

Yusnaturalizm and juspositivism in the understanding of law at different stages of the 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 obligation of natural law follows from the nature of things created by God, being, or from the nature of man created by God.

The Epistle of Paul - conscience is a natural law, laid down even in the hearts of the Gentiles; New time (17-18 centuries) is 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 changeable 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 unshakable right is completely destroyed. Trubetskoy argued about this with Novgorodtsev. He said, if this is a criterion, an ideal, then how can it be changeable? It's like a meter with changing length or kg with changing weight. It is necessary to present the advantages and disadvantages of each approach, as well as 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, it must be understood that they logically mutually presuppose each other, like north and south.

2) is inherent in all but the last. 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 socio-cultural 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. Puhta.

The historical school is formed in the 19th century. Disadvantages of natural law:

1) it is anti-historical, 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 has nothing to do with the social life of society, it is rational, but has nothing to do with life.

4) if both natural and positive law are still law, then they are like types of the generic concept of law, then they must have something in common that allows them to be classified as a kind 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 singles out its value component in law, another thing is that he absolutizes, 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 social culture.

Legal positivism or legal statism

Usually they put an equal sign between them. For now, we will do the same, although positivism is broader. 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 due 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 the rules of law into groups. That is, jurisprudence as factual material, in the role of which norms act. This method is called dogmatic.

Signs of law in positivism:

1) official establishment,

2) formalization, that is, all law is expressed in the 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 constructions, techniques and principles of interpretation of law.

And there are so many shortcomings, but despite the fact that many critical statements have been made, he is invincible.

disadvantages:

1) it denies the legal character of social law, that is, the law in the creation of which the state did not take part, that is, canon law. Positivism cannot logically and consistently explain the legal nature of international law and constitutional law.

2) he excludes from his consideration questions about the justice of law. They consider it a metaphysical matter. Any order of the sovereign is a right.

3) the rule of law as the goal of the operation of law is considered in positivism exclusively as a result exclusively achieved by the efforts of state power, which acts primarily through coercion.

4) the statist definition of law contains a logical flaw, that is, the definition of something through the same thing. Initio per idem. Law - A set of norms established in the form prescribed by law, created in accordance with 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, providing for a sanction for non-fulfilment. We do not find with a sanction for non-performance. This means that it is not a legal norm, and therefore the rest will not be legal. Hans Kelsen (normativist) understood this and said that one should simply postulate the existence of a basic norm that ensures the legal character of the remaining norms. 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 bequeathed by God. Son why should I listen to God. This rule cannot be questioned. Therefore, there are constitutions and laws. The constitution cannot be questioned. Representatives: John Austin, Jeremiah Bentham, in Russia Shershenevich, Herbert Hart, Hans Kelsen, but with the amendment that he does not have an statist point of view (for him, law is a hierarchy of norms, but this order is not always established by the state), Baitin in our 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 in nature, are in struggle and contradict each other (for example: day and night, hot and cold, black and white, winter and summer, etc.);

The transition of quantity into quality, which lies in the fact that with certain quantitative changes, quality necessarily changes, while quality cannot change indefinitely, there comes a moment when a change in quality leads to a change in measure - to a radical transformation of the essence of the object;

Negation of negation, which consists in the fact that the new always denies the old and takes its place, but gradually it itself turns from the new into the 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 the reflection of the objective laws of being and the ways of their use 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 basic principles of dialectics are the principles of universal connection, development, contradiction, systemicity. The highest of these principles is the principle of consistency.

Three other principles, having an independent meaning, simultaneously characterize the main aspects of systemicity: the principle of connection - characterizes the structural aspect, the principle of development - dynamic, the principle of contradiction - the sources of system action and system movement. The principle of universal connection is the starting point in the deployment of the content of dialectics. As noted, this is due to the fact that connectivity, interaction is the substantial basis of being. Without connectivity, the 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 communication,

The principle of consistency;

Causality principle;

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;

Links can be:

External and internal;

Direct and indirect;

Genetic and functional;

Spatial and temporal;

Random and regular.

The most common type of communication - 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.

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

Causality - 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 connections as a whole 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;

Single, 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 “single”, “ 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 operation of the law of contradiction. The laws of dialectics act as universal, necessary, essential, stable and recurring 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. The phenomenon is the outer side of the object, which is reflected by a person in sensual images, and the essence is the inner side of the object, inaccessible to sensual contemplation and comprehended only with the help of thinking. Every phenomenon carries its essence in itself, and every essence manifests itself in a number of phenomena. For example, the character of a person (essence) is manifested in his actions. The essence is the basis of the phenomenon, which defines and explains it, however, it does not exist somewhere along with the phenomenon, but is present in itself - this is the unity of opposites.

Necessity and contingency act as opposites only within certain limits, outside of them the same event can act as necessary in one respect and as accidental in another. Necessity is the most important characteristic of the laws of development of natural, social and mental processes. So-called "pure" accidents do not exist, since the accidental in a certain respect is always necessary. “Pure” chance is often misunderstood as causelessness, but in fact everything in the world is causally conditioned.

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 evident in statistical regularities. Randomness 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 causal relationships of different orders. This explains, for example, the variety of so-called "accidents" that unexpectedly changed the fate of a person.

Dialectical categories are closely related, so one pair of categories can be defined in terms of other categorical pairs. Thus, necessity and contingency are different ways of transforming possibility into reality. The more complex the system is organized, the more development opportunities it has and the greater the role of chance in its functioning.

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

the principle of historicism. All phenomena must be studied with regard to their historical development; for example, it is possible to understand the essence and specifics of the state only by tracing the various historical types of the state, thus revealing its unchanging essential characteristics and eliminating transient factors.

Scientific knowledge of social phenomena invariably presupposes the application of the principle of the 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 a result, the result of previous development.

Due to the fact that the world is in constant development, change, scientific knowledge also has a specific historical character; they are reliable insofar as they correspond to a certain state in the development of the subject. The subsequent development of this subject means that the scientific information available about him is outdated and needs to be changed, supplemented in accordance with the changes that the object reflected by them has undergone. Taking into account this circumstance, 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 are among the universal logical requirements. There is no abstract, suitable for all time truth, it always has a concrete historical character.

The principle of systematic research. All phenomena are interconnected, therefore 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 under study as they exist in reality, without conjecturing and without adding to them anything that is not actually in them. 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 relations, to be able to distinguish the thoughts and motives of politicians and lawyers from the actual direction of legislation, ultimately determined by the economic relations of society.

Synergetics in the science of law.

Russian and foreign lawyers place great hopes on 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 that was formed in Russia 20 years ago, investigating the mechanisms of transition of complex systems from disorder (chaos) to order.

A. B. Vengerov interpreted the essence of synergetics and its methodological possibilities 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 non-equilibrium, 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, random. In this state, sometimes it is chance that pushes the system in an unexpected, unpredictable direction. Here, a random small, sometimes insignificant and even unnoticed impact can generate enormous changes in the entire structure of the system and for the entire system. The system makes a new choice and already in a new quality, in a new content, obeys 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 (regular, deterministic) and random in the very foundations of the world order ... In a word, we are apparently talking about - not more and nothing less - about changing the paradigm of the social sciences... and about rethinking materialistic dialectics as the main method of scientific knowledge of reality" . As a result, dialectics becomes only a particular method of synergetics. Moreover, the cited author believed that 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. basically exhausted its cognitive and prognostic material in the social sphere, including in jurisprudence.

However, these conclusions of A. B. Vengerov about the role of synergetics in the social sciences in general and in jurisprudence in particular did not receive support from other authors. Thus, Yu. Yu. Vetutnev was critical of the characterization 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 performs a slightly different role. The synergetic approach offers a general model for describing the processes taking place in the legal system, defines the problem statement and provides the relevant 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 that are not widely used in legal science. Therefore, lawyers should hardly count on the effective assistance of synergetics in the near future.

It is characteristic that A. B. Vengerov carried on agitation for synergetics and its disproportionately large methodological potentials in words. Later, when expounding 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, whoever, if not 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 but recognize as a new branch, a new direction in the development of jurisprudence. Moreover, the author undertook to show how the postulates of synergetics work in the theory of law, but, alas, this promise was not realized by him.

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

In real life, we recognize the observed processes as random only on the grounds that the patterns that should have acted under the given conditions did not manifest themselves properly and instead of the expected results, we have other - unforeseen.

For example, the Communist Party was sure that, based 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 really accidental, and not a natural result of the party's apparent bankruptcy, its inability not only to understand the regular 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 of the life and activities of the party? ? The party, which has lost touch with life, unable to understand social processes and manage them, not by chance, but naturally, found itself in the place that it honestly deserved - in the margins of history.

But synergetics is far from the idea of finding out the regular connections of the researched. For her, they are a priori defined, formalized and expressed using the appropriate mathematical formulas. Such a way of knowing a regular connection is possible in technical and natural sciences, but it is unacceptable in legal science, where, as Yu. Yu. Vetutnev correctly noted, mathematical methods are not widely used for objective reasons. The cognition of specific real connections of legal phenomena is carried out not formally logically, according to certain formulas, but concretely historically, with a detailed clarification of all empirically observed connections and dependencies of the studied. Moreover, this knowledge is conducted at the empirical level through the collection and generalization of the necessary empirical information.

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

Synergetic descriptions of the mechanisms of development, changes in open systems in jurisprudence can be used in predictive studies based on the formation of mathematical and conceptual models of the transition paths of the current state of the studied state into the future state. In particular, when making forecasts, of considerable interest are 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”, that, in addition to simple attractors, there may be “strange”, i.e., unstable, chaotic states. Noteworthy is the conclusion that multiple factors influencing the development of the studied phenomena are in hierarchical relationships among themselves, etc.

Thus, in our opinion, synergetics, the new effective ways of knowing contingencies developed by it in direct practice, can be used only at the empirical stage of scientific knowledge or when conducting predictive studies of the development of the 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 of the universal laws governing the development of nature, society and thinking.

Systemic and structural-functional analysis of state and law.

As long as in immediate reality legal and other phenomena are in a stable relationship with each other, mutually determine each other, then scientific knowledge cannot be limited to identifying only the essential features of the phenomena under study. The 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, you need to go back, where "abstract definitions lead to the reproduction of the concrete through thinking." Following this path, legal science gets the opportunity to cognize law as a complex systemic formation, in all the variety 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 relationships 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 integrativity, i.e., a set of properties that are not inherent in their constituent components. Summative systems, in contrast to organic ones, are a mechanical association, where the whole is only quantitatively different from its constituent parts, for example, a pile of grain, sand, a shop window.

The correlation of an organic system with 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 features and properties. Thus, social relations, clothed in a legal form, acquire its specific features. The conditions for the emergence, subjects, content, measures of protection against violations and other significant features of social relations are fixed by the rules of law. Thanks to the law, social relations acquire a stable, obligatory character, are reliably protected by the state from any attempts to violate subjective rights or fail to fulfill legal obligations. Any legal phenomenon has features 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. Numerous classifications of legal norms according to the ways of their presentation, the method of legal regulation, the functions they perform, etc. can serve as examples of summative phenomena. 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 -structural analysis. The latter is used to study the structure of only organically integral phenomena, processes, for example, the systemic structure of a legal relationship, a rule of law, a specific legal institution.

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

The object of the system-structural approach can be the most diverse range of sources containing reliable information about the phenomena under study. These can be, firstly, scientific publications that contain empirical data on the studied phenomena, their components, features of functioning and development, secondly, publications that substantiate the essence of the studied phenomena, 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 the ascent from the concrete to the abstract.

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

System-structural analysis is designed to:

1) identify legal phenomena that are organic systems;

2) to 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 elements among themselves;

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

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

For system-structural analysis, it is of particular importance to identify 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.

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 bond inherent in the phenomenon under study;

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

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

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

6) presentation of the research results.

Procedures focused on obtaining knowledge about the object of study are carried out using methods used at the stage of empirical knowledge and ascent to legal abstractions. Information about the object of research missing for system-structural analysis can be obtained by the same procedures and using the same methods as in studies specially conducted to collect empirical information or form 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 date back to the 1970s. It should be noted that a significant part of Soviet jurists pinned great hopes on 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 understanding the essence of legal phenomena, their main (and secondary) internal and external relations, hoped using this method "to take a fresh approach" and even "to overcome the gap characteristic of mechanism." However, the hopes of Soviet jurists turned out to be illusory, there was no big breakthrough in the development of legal science, on the contrary, there was a clear regression. Since the 1990s Russian jurists resolutely abandoned the methodology of dialectical materialism, preferring to it the methodology of idealism and positivism.

It is not his fault that the system-structural approach did not justify the hopes of Soviet jurists, since it was associated with solving problems that require the use of cognitive means that are not inherent in this approach. At the same time, the system-structural approach, being one of the general methods of scientific cognition, has been and remains an effective method of cognizing the structural relationships of organically integral phenomena, and as such it is successfully used in legal science, which was noticed back in 1980 by I. S. Samoshchenko. He noted that “the systems approach gives the greatest effect when studying not all systems, but, first of all, organically integral systems. In other cases, it is rather about the application of concepts and categories of a systematic approach to the description of certain objects, or even simply about the use of systemic concepts.

The systematic approach is applied in a differentiated way, taking into account the peculiarities of the structural structure of organically integral legal phenomena. There are three types of structural links in legal science: synthetic, hierarchical (vertical) and external (functional).

The synthetic type of structural connection is inherent in the elements of an offense, legal relationship, 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

Under method Any science is understood as a set of techniques, rules, principles of scientific activity used to obtain true (objectively reflecting (reality) knowledge.

Currently, the whole variety of methods of cognition of the state and law is usually arranged into the following groups:

1) general philosophical, or ideological, methods;

2) general scientific (general) methods;

3) private scientific (private, special) methods.

General philosophical methods serve as the basis, the soil on which the science of the theory of state and law develops.

Metaphysics explores the higher, inaccessible to the senses, only speculatively comprehended and unchanging principles of everything that exists in the world.

Dialectics- this is the science of the universal laws of development of nature, society, man, his thinking. It requires the study of reality in the interconnection of phenomena and their constant change and development. Materialism is a philosophical direction, which proceeds from the fact that the world is material, exists objectively, i.e. outside and independently of human consciousness; matter is primary, not created by anyone and exists forever. Consciousness, thinking is a property of matter. The cognizability of the world, its regularities is affirmed.

Based on the materialistic and dialectical approaches to the study of state-legal phenomena, conclusions are drawn that:

a) the state and law are real phenomena;

b) when studying the state and law, one must take into account their constant development and variability;

c) one should take into account the diverse links between various state-legal, economic, political, cultural, national and other processes;

d) state-legal phenomena should be studied, focusing on legal practice, since the truth of science is verified by practice.

There are also theories that refute the very possibility of knowing the state. This is the philosophy of agnosticism. Separate theories are based on philosophy objective idealism, which explains the fact of the existence of the state and law by objective reason, something like a divine force. Another philosophical direction subjective idealism connects the existence of the state and law with human consciousness.

In the domestic legal science for a long time dominated Marxist approach to the state and law, which linked the development of state-legal phenomena exclusively with economic factors, and the very science of the theory of state and law was ideologized.

In the modern science of the theory of state and law, a generally accepted approach to methodology has not developed, science is at the stage of search. There is an opinion that the general philosophical foundation for the study of the state and law remains historical materialism, which extends dialectics to the study of state-legal phenomena, considers them in mutual connection, in movement, development, the struggle of the new with the old, etc.

General scientific methods are those that are used in all or many areas of scientific knowledge. Among the general scientific methods, it is customary to distinguish: historical, logical, systemic and functional methods.

Historical the method requires that state-legal phenomena be studied not just in development, but taking into account the specific conditions of existence of individual peoples, countries, regions, including taking into account historical traditions, cultural characteristics, customs, socio-cultural roots.

Logical the method belongs to the abstract-theoretical and is based on the use of such techniques as analysis and synthesis, induction and deduction. Analysis is a process of mental or actual decomposition of the whole into parts, which allows you to identify the structure of the object under study, for example, the logical structure of the rule of law with the allocation of hypotheses, dispositions and sanctions in its composition. Synthesis, on the contrary, involves the process of mental or actual reunification of the whole from parts (elements). For example, by combining the signs of law, state, legal relationship, elements of the status of an individual, etc., general concepts of the most important legal phenomena are formulated.

Induction how a logical device allows, on the basis of particular knowledge, to obtain knowledge of the general, for example, by studying the forms of government of individual states, it is possible to formulate a general model of republican or monarchical forms of government. Deduction- this is a logical device that, on the basis of general knowledge, comes to knowledge of the particular. So, on the basis of common features of democratic and non-democratic regimes, it is possible to determine the political regime of a particular state.

At the core system method lies the study of state-legal phenomena as systems. Any system is an integral phenomenon, consisting of many other phenomena, and imparts a new quality to the entire phenomenon. The state and law are complex systemic formations, therefore, they should be studied in conjunction, this focuses on the knowledge of the studied objects as a holistic phenomenon.

Functional the method makes it possible to identify in state-legal phenomena their functions, social purpose, methods and forms of action. In other words, all state-legal phenomena are considered not in statics, but as active phenomena. Hence the consideration of the functions of the state, law, legal consciousness, etc.

Private scientific methods represent the use of the theory of state and law of scientific achievements of technical, natural, related social sciences. The most common methods include the following:

Method of concrete sociological research is the analysis, processing and selection of the necessary information about the most important aspects of legal practice. When using this method, a variety of techniques are used: analysis of documents, official communications, oral and written surveys (interviews, interviews, questionnaires), the study of materials from judicial and arbitration practice, public opinion about the activities of law enforcement agencies, etc.

Modeling method- one of the main methods of studying state-legal reality. It consists in the study of state-legal processes, institutions in models, i.e. by ideal reproduction of the analyzed phenomena.

Statistical method- obtaining quantitative indicators of state-legal phenomena and processes. It is most used to characterize mass phenomena that are repetitive, for example, to identify the dynamics of crime. Modern statistics allows, on the basis of quantitative data: a) to obtain indisputable evidence of the presence or absence of links between the analyzed phenomena; b) to analyze the factors influencing this phenomenon.

Method of social and legal experiment- a way to test scientific hypotheses or a project of a solution. In domestic practice, this method was used, for example, during elections in industrial districts in 1989, the establishment of so-called free zones with a preferential customs and tax regime in the Primorsky Territory, in the Kaliningrad Region, etc. This method is assessed as promising.

mathematical method- a method of operating with quantitative characteristics, one of the formalized methods for studying state-legal phenomena. It is mainly used in forensics, forensics in the study of traces of crimes, etc.

cybernetic method- this is a technique that allows, with the help of cybernetics, to learn state-legal phenomena. It comes down mainly to using not only the technical capabilities of cybernetics, but also its concepts - direct and feedback, optimality, etc. Cybernetics, as you know, is engaged in the development of algorithms and methods that allow you to control the system so that it functions in a predetermined way. The cybernetic method is used to develop automated systems for obtaining, processing, storing and searching for legal information, to determine the effectiveness of legal regulation, to systematically record regulatory legal acts, etc.

Synergistic method in legal science began to be applied only recently. The term "synergy" comes from the Greek word "synergos" and means the joint effect of the interaction of various systems capable of self-organization, self-regulation. Synergetics helps the study of self-regulating systems (including random ones) and processes, such as market relations, local self-government, i.e. phenomena and processes where state intervention is limited.

Among private scientific methods, it is customary to single out legal methods proper. These include comparative legal and formal legal.

Comparative legal the method consists in comparing various state and legal systems, institutions, categories in order to identify similarities or differences between them. Even ancient thinkers argued that the truth is known in comparison. This method is used when studying the typology of states, comparing various legal systems of the world, political regimes, forms of government, state structure, etc.

Formal legal method is traditional for legal science and constitutes a necessary step in the scientific knowledge of the state and law, since it allows you to study the internal structure of the state and law, their most important properties, classify the main features, define legal concepts and categories, establish methods for interpreting legal norms and acts, systematize state- legal phenomena.

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, universal philosophical laws and categories, general and particular scientific methods, i.e. not only a system of methods, but also a doctrine about them. In addition, methodology is not limited to its constituent components, it has its own patterns of development - the components of methodology interact with each other, and therefore acquire properties that are different from their single existence: general theoretical concepts permeate the worldview, universal philosophical laws and categories illuminate the boundaries of applicability general and private scientific research methods. The correlation of method and methodology is like a dialectical correlation of the whole and the part, system and element.

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

3. From the point of view of 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.

25. The main methodological traditions in the history of legal science. Change of paradigms

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

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 a philosophical status, but are applicable in most areas of science. In the XX century. In connection with the emergence of the so-called metascientific spheres of knowledge in the methodology of law, new research tools began to be allocated. They are the principles, forms and procedures of research used by all or at least most of the modern sciences. When referring to these research tools, the theory of state and law ensures its compliance with the current 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 for its development, attracting the most common research tools and methods of other sciences is a necessary condition for the progress of any science, including jurisprudence.

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 cooperation of specialists from different fields for its development.

The complexity of the 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 to exactly the same state as the original one). The openness of the system indicates that it can exchange energy, matter with the outside world (do not forget that initially it was about chemical and physical processes, and in relation to society, this can be any factors that affect its development, for example - information) . In the state-legal sphere, we are constantly faced with aggregates that are systemic in nature and include a number of fairly independent components (subsystems) that develop, 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 temporal criterion, the progressive, and, therefore, irreversible movement of society, and therefore of state-legal phenomena, forward 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, the system of law and the system of legislation and is the most obvious example of a complex and open system ). These are also those phenomena that can be considered as components (subsystems) of more complex (not necessarily state-legal) associations, the life of which also proceeds according to the laws of self-regulation. For example, political, legal, economic systems are elements of society as a whole (as a combination 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.

A.B. Vengerov believes that synergetics "offers a new perspective on the relationship between necessity and chance, on the role of chance in biological and social systems." It can lead to a paradigm shift in science and claim the role of "a worldview approach that includes dialectics as a particular method." Consequently, the neglect of synergetics can lead to a lag in legal science from modern life, from a new picture of the world.

Firstly, the use of a synergistic approach can help take a fresh look at the state-legal reality in general, at the role and value of the state and law in the life of society.

Thirdly, synergetics makes it possible to overcome the limitations (and sometimes even 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 undertaken criticism will help to look at the use of traditional methods of the theory of state and law from other positions.

26. Jusnaturalism and juspositivism in the understanding of law at different stages of the development of legal science

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

The principle of historicism. All phenomena must be studied with regard to their historical development; for example, it is possible to understand the essence and specifics of the state only by tracing the various historical types of the state, thus revealing its unchanging essential characteristics and eliminating transient factors.

The principle of objectivity means that in the process of cognition it is necessary to approach the studied phenomena and objects as they exist in reality, without conjecturing and without adding to them anything that is not in reality in them. 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 relations, to be able to distinguish the thoughts and motives of politicians and lawyers from the actual direction of legislation, ultimately determined by the economic relations of society.

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

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

The formation of the methodology of legal science is historically conditioned by the development of the practical activities of society, its accumulation of experience in legal life in various spheres of life and, as a result, the development of public consciousness, its legal way of thinking. The history of ideas about law, its comprehension, interpretation and knowledge has gone approximately the same way 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 reflective-practical. The first period covers the legal thought of antiquity, the Middle Ages and a significant part of the New Age, while the second and third periods mainly fall 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 technique, and at the same time a 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 patterns 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 that deals with the development and application of certain methods of studying law and legal reality.

The 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 "the path to knowledge", "the path to the truth." The concept of "method" is defined as a way 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 for classification is the degree of generality. In legal science, it is also customary to subdivide methods into four levels: philosophical (ideological), general scientific (for all sciences), particular 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, methods of formal logic are distinguished:

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

Synthesis is a method of mentally recreating the whole on the basis of the known parts and their relationships;

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

Concretization - correlation of abstract representations 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 - the conclusion about the belonging of a certain feature to the subject under study on the basis of similarity in essential features with another subject;

· Modeling - a method of indirect knowledge of an object with the help of its model.

General scientific methods are those techniques and operations that have been developed by the efforts of all or large groups of sciences and that are used to solve common cognitive problems. These methods are divided into methods-approaches and methods-techniques. The first group includes substrate (content), structural, functional and system approaches. These approaches guide the researcher to the appropriate aspect of the study of the object under study.

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, synergistic, etc. They do not cover all scientific knowledge, like philosophical methods, but are applied only to its individual stages.

In this group, methods are divided into empirical and theoretical. The universal empirical method is observation, which is understood as a purposeful sensory perception of the facts of reality. This method is characterized by relative limitation and passivity. These shortcomings are overcome by applying another empirical method. Experiment - 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 the processes the necessary 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 and the state, law, priority is given to the economy (basis), then in idealism - ideas, consciousness and worldview.

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

The structural-functional method is closely related to the system method, which consists in the knowledge of 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 trends (scientific schools) that are dogma, that is, generally accepted and recognized by all lawyers and jurists. For example, such concepts and legal constructions as the system of law, the rule of law, the system of legislation, the form of law, the source of law, the operation of law, the form of implementation of law, the mechanism of legal regulation, law in the objective sense, law in the subjective sense, legal relationship, subjective legal rights and responsibilities, etc., are generally accepted and are interpreted for everyone in basically the same way.

The legal-dogmatic (formal-dogmatic) approach allows us to consider law as a sociocultural phenomenon and understand it as a system of fundamental legal institutions, 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 the legal sciences proceeds from the fact that law, legal acts, 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 "internal experience", his direct perception and intuition. Any epoch 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 invested in the relevant concepts in that era.

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

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

The method of specific sociological research involves the collection, analysis and processing of legal information (official documents, materials of the practice of law enforcement agencies, materials of 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 social and legal phenomenon (for example, the level of crime, public awareness of the main regulatory legal acts, etc.). It includes the observation of social and legal phenomena, quantitative data processing, their analysis and is used in the process of studying phenomena characterized by mass character, repetition and scale.

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

The method of socio-legal experiment is to create an experiment using legal and state phenomena. For example, the introduction of the institution of trial by jury, legal acts or individual legal norms and verification of their operation 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, search and transmission of legal information.

Special methods allow to detail knowledge about legal and state phenomena. The number of special scientific methods should also include such methods that allow the development of new knowledge about law and the state (for example, the interpretation of legal texts and norms). The methodology of interpretation is a separate area 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 the humanities. Modern legal hermeneutics as a direction of modern jurisprudence is actively developing 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 about legal situations. It should be noted that the hermeneutic approach to the study and interpretation of law-significant texts is 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.

For many centuries, numerous attempts have been made to interpret legal texts that have a sign-symbolic nature. The need to interpret these texts is caused by the following reasons:

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 allows two different interpretations;

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

Uncertainty of the law (sometimes doubts arise due to the use of general, insufficiently defined expressions by the legislator); 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 the teachers of the law to interpret the text, moreover, quite often in conflict 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, in the search and implementation of the meaning of the legal text, the study of the problems of the plurality of meanings and interpretation. In modern conditions, the form of law cannot act otherwise than as a sign form, the source and embodiment of which is the language. Legal regulation and its elements act as ideal objects, an external form of expression of public consciousness, which is subject to understanding and application.

These methods are usually not used separately, but in various combinations. The choice of research methods is associated with various reasons. First of all, it is due to the nature of the problem under study, the object of study. For example, when studying the characteristics of a particular state that organizes social life in a given society, one can use a systemic or structural-functional method. This will allow the researcher to understand what underlies the life of a given society, which bodies manage it, in what areas, who manages it, etc.

The choice of methods is directly dependent on the worldview and theoretical position of the researcher. Thus, a jurist-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 jurist-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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Methodology as a science about principles, forms, methods of cognition of objective reality. Structure and levels of methodology: scientific paradigms, philosophical foundations of science, concepts, theories, principles, axioms and methods of knowledge. Classical, non-classical and post-non-classical paradigms of science and their features in the knowledge of legal problems. Development of the methodology of 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 particular scientific methods of cognition. Scientific character in the study and resolution of problems of the general theory of law. Accounting for universal and civilizational values and ideals as a principle for the study and scientific resolution of problems of law.

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 relevant theories of law. Reasons for the emergence and opposition of these types of understanding. Dialectical and metaphysical methods of cognition of law.

Formational and civilizational approaches, deduction and induction in the knowledge of law. Features of the 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 cognition of law.

System analysis. Open and closed systems. Detected and modeled systems. Mechanical, self-regulating, self-developing systems. State and law as system objects. Synergetic approach to the knowledge of law. The state as a unique historical self-developing entity that is in conditions of unpredictable external influences and strives to streamline them in order to achieve its own goals. Law as a self-regulatory 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.

The system of sociological methods for 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 cognition of law, and not individual private forms of their manifestation. It reveals the essence of the cognitive process, its mechanism, possibilities and limits of knowledge. The most important problem of methodology is the correlation of knowledge about the state, law and state-legal reality and closely related questions about truth, ways, forms and methods of achieving it.

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

· thing;

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

the idealized object of this theory;

the logic and methodology used to build it;

Philosophical foundations and value factors;

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

The subject of methodology (epistemology) of law– the process of scientific knowledge (research) and description of the most general laws of the emergence, development and functioning of the object itself, that is, law.

Scientific knowledge is a special sphere of people's 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 that are accessible to knowledge with the help of feelings and thinking. As the highest form of knowledge and a special kind of creative spiritual activity of people, science (gr. episteme, lat. scientia) appeared in modern times, in the 16th-17th centuries. The term "science" was introduced into circulation in 1840 by a professor at Cambridge University, W. Weville.

The goal of any science, including the methodology of the general theory of law, is the comprehension of truth and the discovery of objective laws (patterns) confirmed by practice. patterns- connections (objective, essential, concrete-universal, internal, recurring for a long time, stable) between the state and law and other social phenomena. Let's single out the following regularities:

state and law products society;

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

state and law (positive law) occur at the same time they are genetically related, the reasons for their appearance are the same;

state and law develop in close relationship for a long time;

state and law closely associated with other social phenomena(economics, politics, ideology, morality, religion, etc.);

as the law of their relationship develops complemented, expanded, modified, new connections arise, some old connections disappear, etc.;

state and law are part of the culture of society, they represent the greatest social value, because, by regulating social 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.

Methodology functions. 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: state bodies; legal acts (regulatory, law enforcement, law enforcement, legal documents, legal facts, etc.);

· explanatory - identification of essential regular connections and relations of law, disclosure of the essence of the object being explained;

· prognostic - satisfaction of people's actual needs. 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", "form of the state", "mechanism of the state", "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 study is idealized. Knowledge about it is not an exact copy of state-legal reality. They reflect the most general, essential properties, relationships and connections. Adequate reflection of state-legal reality is the truth .

Truth is achieved through cognitive methods. At present, 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 the classification of methods.

Classification of the main methods. There are three groups of methods for studying law (V. I. Vlasov, D. A. Kerimov, A. F. Cherdantsev): general scientific, special and private 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-promotion. It is a universal method of thinking and acting. Initially, the term "dialectic" was interpreted as the art of dialogue; at the present time - as an understanding of the world and a way of thinking, in which objects, phenomena and processes of reality are considered in the variety of their connections, in the interaction of opposing forces and tendencies, in change and development, self-motion, and the subject of thought is presented in the form of an organic system that reproduces the conditions of its existence. Since dialectics is a system of principles, laws and categories used in all sciences, including the epistemology of law, the dialectical method is called universal.
Varieties of the dialectical method: idealism- the state and law are perceived as products of the will of God, the World mind (objective idealism), man (subjective idealism); materialist dialectic- the 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; the law of negation of negation.

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

Formal logic methods:

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

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

· induction(lat. inductio - behavior) - a logical device, which is the movement of thought from the individual to the general; conclusion obtained in observations and experiments; the movement of thought from facts to a general statement (hypothesis, conclusions, conclusion);

· deduction(lat. deductio - inference) - a logical device, which consists in the ascent of the process of cognition from the general to the particular, individual;

· abstraction - abstraction from a number of particular features, properties, relationships of individual objects in order 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, district of the state, an increase in crime is revealed;

· mathematical - analysis of legal reality when determining the percentage of dangerous crimes committed in a particular area, city, school team;

· concrete sociological - observation, polling, interviews, building legal models, finding out the opinions of various segments of the population of society on the amendments to the Criminal Code, introduced to the National Assembly of the Republic of Belarus.

Private scientific methods are used only in the theory of law. V. I. Vlasov refers to this group methods:

· comparative law - the study of the legal systems of various states by comparing (comparing) these systems as a whole or their individual components, that is, the regulatory system of law, individual institutions of law, legal culture, etc.;

· legal experiment - approbation of legislative innovations in a separate region or district of a particular state (using a “one stop shop” when submitting documents for the right to own, use a land plot, etc.);

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

· formal legal - the study of law out of touch with other phenomena of society when considering the structure of law.

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

General, 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 (concrete sociological, statistical, cybernetic) and purely legal (formal legal and comparative legal).

The authors of this classification focus on worldview, philosophical methods. However, some special methods used in the sciences (concrete 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, however, he rightly notes that the classifications of methods proposed in the general theory of law are relative. As a criterion for such a classification, the author puts forward the most general principles of the knowledge of law. He presented a general characteristic of modern methodology (which is especially valuable), which denies monopoly, is pluralistic, has a humanistic orientation, is distinguished by free-thinking, open rationality.

There are also three levels of scientific knowledge:

· highest level– methods applied to all studied objects;

· average- interdisciplinary methods applied to several objects of the same type;

· lower– methods for studying one object.

The main levels of comprehension of truth. According to 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 fix the facts;

· theoretical - the scientist explains the recorded facts, operating exclusively with idealized objects. Uses methods: axiomatic; deductive; system-structural; functional; the 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 most theoretical activity 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 is “recognized everyone scientific advances that, over time, provide a model for posing problems and solving them to communities. In ancient times and in the Middle Ages, the "theological paradigm" prevailed, in modern times - the "natural-legal paradigm", the "normativist paradigm", the "sociological (realistic) paradigm", etc.

Thus, the empirical and theoretical levels differ in ways of ideal reproduction of objective reality, approaches to the construction of systemic knowledge. In criminalistics, when studying objects, empirical approaches prevail, in the general theory of law - explanatory methods, a logical method, etc.

findings

The general theory of law is a science that is fundamental, in relation to other legal sciences, in nature. It generalizes and systematizes the terminological apparatus, highlights the general characteristics inherent in law, and 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 the methodology of legal scientific knowledge); ideological (contributes to 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 (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).

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