Modern problems, methodology and history of legal science. The subject of the history 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 the general theory of the method, which was formed in connection with the realization of the need to study and develop methods of scientific research, systematization of 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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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.

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

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

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.

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.

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 an extensive methodological toolkit, cannot ignore 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.

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) .

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's attempt to explore the legal system with the help of synergetics is very interesting.

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 indicate that "synergetics can act as a methodological basis for predictive 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 synergetic approach can help to take a fresh look at the state-legal reality in general, 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 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.

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

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 unjustified present), 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.

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

Metaphysics - after physics - was originally the 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 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 is 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 bead garden - 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.

Ticket 5. Yusnaturalizm and juspositivism in the understanding of law at different stages of development of legal science. (in the second group)

Natural law approach. You need to know the periodization (editions): ancient (Ulpian and Cicero, you need to know the representatives and definitions) in which natural law was likened to the law of nature; medieval, theological or Christian (Thomas Aquinas), in which the obligation of natural law follows from the nature of things created by God, being, or from the nature of man created by God. Paul's message - conscience - a natural law, laid down even in the hearts of the pagans; Modern times (17-18 centuries) are individualistic, rationalistic (Hugo Grotius, Immanuel Kant, Samuel Pufendorf, John Locke, etc.) in which natural law is identified with human rights and freedoms, which were derived by reason from rational human nature; revived natural law (after the Second World War and in the 20th century - in two stages) (P.I. Novgorodtsev, E.N. Trubetskoy, in Germany Rudolf Stammler, Gustav Radbruch, USA Lon Fuller - Polyakov does not agree). At this stage, Natural Law is a historically 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. 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.Pucht.

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 an 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 a 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 to exclusively 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 sovereign's command. 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 forms established by the state, 3) state-powered 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 nature 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 (x) - A set of norms established in the prescribed law (x) form, created in accordance with the law (x) by the bodies of the state, which itself is a legal (x) union. 5) it is logically impossible to justify coercion as the main property of law. There is a norm x1. It will be legal only if there is x2, providing for a sanction for non-compliance with x1. X2 will be…..x19. We don't find x20 with a sanction for non-execution of x19. This means that x19 is not a legal norm, which means that the rest will not be legal either. 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.

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 consists in the fact that with certain quantitative changes the quality necessarily changes, while the quality cannot change indefinitely, there comes a moment when a change in quality leads to a change in the measure - to a radical transformation of the essence of the object; - negation of negation, which lies in the fact that the new always denies the old and takes its place, but gradually it itself turns from 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 appear as necessary in one respect and as accidental in another. Necessity is the most important characteristic of the laws of development of natural, social and mental processes. 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.

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§ 1. The concept and types of methods of cognition of the object and subject of legal science

The understanding of the method of legal science as a set of rules, principles of knowledge that determine the rational path of movement towards reliable knowledge about the subject and object of legal science is not shared by all Russian jurists. In the domestic legal literature on this issue, various views are presented. According to some authors, a specific method of legal science can only be represented by its theoretical and conceptual apparatus, while general and special methods are only used by legal scientists, but are not developed by them. Other authors believe that the method of legal science is made up of both rules, principles of cognition, and its conceptual apparatus: concepts, categories, principles.

Attempts to include the conceptual apparatus of legal science in its method are untenable, because they do not correspond to the actual relationship between the theory and method of science. The method of the theory of state and law 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. Categories and concepts, no doubt, act as an effective means of scientific knowledge, but in comparison with the method they perform a different theoretical function inherent only to them.

Categories and concepts are used at all stages, stages of scientific knowledge due to the fact that they reflect the essential aspects of political and legal phenomena and processes and thus equip the cognizing subject with reliable knowledge about the phenomena and processes under study. Relying on the conceptual apparatus of science, the researcher is freed from the obligation to re-study what is already in science as reliable knowledge, in particular, to identify the essence and form of the studied phenomena, their elements, connections, signs, functions. His attention should be focused on the study of those aspects, connections, regularities of the studied phenomena that have not been fully studied and knowledge about which is debatable and unreliable.

The conceptual apparatus of science finds wide and direct application in the course of research, in the process of obtaining, describing and explaining new phenomena, their aspects, connections, as well as in predicting trends in their further development. The acquired knowledge is reflected, fixed, mainly with the use of the existing conceptual apparatus of science. New categories, concepts are introduced into scientific circulation only in those cases when fundamentally new knowledge has been obtained that are not covered by the existing conceptual apparatus of science. In the same way, the explanation of new phenomena and processes identified during the study, their individual connections, signs is carried out using the available conceptual apparatus.

However, it should be taken into account that the use of categories and concepts in cognition, in the process of scientific research is carried outnot arbitrarily, at the discretion of the researcher, but in accordance with the requirements of deductive inference, ascent from the concrete to the abstract, methods of explanation and forecasting.In a word, the application of theories and concepts to achieve new knowledge is a creative process that obeys certain rules, and their observance is a mandatory condition for obtaining objectively true knowledge. Any theoretical position, category, theory, if applied incorrectly, will not reveal new truths, but, on the contrary, will become a source of delusions and errors.

K. Marx's doctrine of the state and law did not contain even a hundredth of the mistakes made by his adherents in the person of Soviet legal scholars. Apology for the repressions of the 1930s-1950s, justification of the personality cult of I.V. Stalin, all voluntaristic decisions of the party on issues of state and law, interpretation of the essence of law in a positivist spirit as laws of the state acting in society, excessive ideologization of the general theory of state and law, a disdainful attitude towards the achievements of bourgeois lawyers and an uncritical attitude towards one's own, not always correct, positions - this is by no means a complete list of the "achievements" of Soviet jurisprudence. And all because Soviet lawyers failed not only to creatively develop the teachings of K. Marx, to cut off from him everything outdated and unacceptable in the new conditions, but also to correctly use the fundamental principles of this teaching in scientific analysis. Despite a number of attempts, the main method of scientific knowledge, the use of scientific theories in revealing the subject of the theory of state and law, was not mastered - the method of ascent from the abstract to the concrete.

The ability to operate with theoretical knowledge, categories and concepts of the theory of state and law is fixed in the rules, principles that make up the direct content of various general and special methods. But these rules and principles themselves 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. And where the theoretical and conceptual apparatus is used as an objective basis for the methods of scientific knowledge, it realizes its methodological function.

The development of rules, principles of knowledge is carried out in the course of special studies. On the basis of the learned objective regularities about law and other legal phenomena, rules and principles of knowledge are formulated. An example of such rules is the principles of interpretation of law. It is not difficult to detect the conditionality of the requirements of the methods of interpretation of law by the provisions of the general theory of law on the legal norm, its structure and forms of expression in normative acts, and on the law-making process.

Thus, the rule that the definition of a term given in the general part of the code retains its significance for all the norms of a given branch is nothing more than a methodological expression of a well-known correlation between general and specific norms. In turn, the requirement, when interpreting the rules of law, to take into account the links between general, special and exclusive rules, protective and regulatory, blanket, reference rules is based on the methods used by the legislator to present the rules of law in normative legal acts.

On the basis of the learned patterns of functioning and development of the state and law, legal scholars develop a method of the theory of state and law. At the same time, they have to solve the following tasks: 1) determine the system of specific methods of cognition of law; 2) systematize methods, clarifying their epistemological nature and scope; 3) specify general and special techniques in accordance with the specifics of the subject of knowledge, develop private law methods.

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. Based on the theoretical provisions on law as a normative regulator of social relations, legal scholars develop specific criteria for the object and basis of comparison, and also determine the phenomena and their features that can act as an object or basis for comparison.

The development of general and special methods in relation to the specifics of politics-legal matter is a necessary condition for their successful use in the theory of state and law and other legal sciences. The general theory of statistics, for example, currently has a fairly developed system of techniques for studying the quantitative aspect of social phenomena. However, all these methods are still timidly used in jurisprudence, since methodological issues related to their adaptation to the knowledge of the specific laws of the state and law remain unresolved. Overcoming methodological problems that impede the widespread use of statistical methods in jurisprudence is the primary task of legal scholars. It is they who know the specifics of law, its laws and, therefore, determine the specific areas and limits of the use of statistical tools in law in research, and also formulate specific rules for the statistical analysis of legal phenomena.

For similar reasons, in jurisprudence, methods of mathematical modeling, experiment, which have received a fairly deep development in philosophical literature, are not widely used.

In this way,the conceptual apparatus of science in cognition performs two functions: theoretical and methodological.Concepts realize a theoretical function if they are used to describe, explain and predict legal or political phenomena. When categories and concepts act as the basis of methodological rules, principles, they realize the methodological function. But in this case, the result of cognition is not new knowledge about the state or law, their laws, but rules, principles of cognition, which are not in the subject of research itself and the concepts that reflect it. It is these rules, principles in the aggregate that constitute the content of such a component of the theory of state and law as a method.

To interpret categories and concepts as a special or the only method of the theory of state and law on the grounds that they reflect the essential, natural aspects of legal phenomena means to present the theoretical function of concepts and categories as a methodological one. In practice, this would turn any theoretical study into a methodological one, and the method of the theory of state and law would be reduced to a logical-epistemological analysis of categories and concepts. Ultimately, such an approach creates a real danger of identifying methodological problems of jurisprudence with theoretical ones and substituting the former for the latter.

As a relatively independent component of the theory of state and law, the method has its own content - a certain set, a system of rules, principles of cognition, which are based on the known objective patterns and guide the researcher to obtain new objectively true knowledge.

The methodological arsenal of the theory of state and law is quite complex. It includes methods of various degrees of generality and cognitive tasks, including:

1) 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;

The understanding of the method of legal science as a set of rules, principles of knowledge that determine the rational path of movement towards reliable knowledge about the subject and object of legal science is not shared by all Russian jurists. In the domestic legal literature on this issue, various views are presented. According to some authors, the specific method of legal science can only be represented by its theoretical and conceptual apparatus, while general and special methods are only used by legal scientists, but are not developed by them. Other authors believe that the method of legal science is made up of both rules, principles of cognition, and its conceptual apparatus: concepts, categories, principles.

However, it should be taken into account that the use of categories and concepts in cognition, in the process of scientific research is carried out not arbitrarily, at the discretion of the researcher, but in accordance with the requirements of deductive inference, ascent from the concrete to the abstract, methods of explanation and forecasting. In a word, the application of theories and concepts to achieve new knowledge is a creative process that obeys certain rules, and their observance is a mandatory requirement for obtaining objectively true knowledge. Any theoretical position, category, theory, if applied incorrectly, will not reveal new truths, but, on the contrary, will become a source of delusions and errors.

The development of general and special methods in relation to the specifics of political and legal matter is a necessary condition for their successful use in the theory of state and law and other legal sciences. The general theory of statistics, for example, currently has a fairly developed system of techniques for studying the quantitative aspect of social phenomena. However, all these methods are still timidly used in jurisprudence, since methodological issues related to their adaptation to the knowledge of the specific laws of the state and law remain unresolved. Overcoming methodological problems that impede the widespread use of statistical methods in jurisprudence is the primary task of legal scholars. It is they who know the specifics of law, its laws and, therefore, determine the specific areas and limits of the use of statistical tools in legal research, and also formulate specific rules for the statistical analysis of legal phenomena.

For similar reasons, in jurisprudence, methods of mathematical modeling, experiment, which have received a fairly deep development in philosophical literature, are not widely used.

In this way, the conceptual apparatus of science in cognition performs two functions: theoretical and methodological. Concepts realize a theoretical function if they are used to describe, explain and predict legal or political phenomena. When categories and concepts act as the basis of methodological rules, principles, they realize the methodological function. But in this case, the result of cognition is not new knowledge about the state or law, their laws, but rules, principles of cognition, which are not in the subject of research itself and the concepts that reflect it. It is these rules, principles in the aggregate that constitute the content of such a component of the theory of state and law as a method.

The methodological arsenal of the theory of state and law is quite complex. It includes methods of various degrees of generality and cognitive tasks, including:

1) 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) 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.

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 that 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 ideas and concepts with reality;

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

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

analogy - 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 set of such components as the people, power and territory, and law is considered 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 for 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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