Basic principles for the study of law and the state

In the methodological arsenal of the theory of state and law, the principles of cognition of the studied matter play a very important role. Among them, such as the principle of comprehensiveness of research, the principle of historicism, completeness in the study of state and law, an organic combination of theory and practice, practical confirmation of theoretical conclusions, etc.

What does each of these principles mean and what is their essence?

The main meaning of the principle of comprehensiveness is to study state-legal phenomena not by themselves, but in interconnection and interaction with other phenomena related to them. “The completeness and comprehensiveness of the study also implies consideration of the state and law not in one aspect, but in all aspects, giving a common vision”[16].

The principle of historicism in the study of state and law means consideration of existing state-legal phenomena not only from the point of view of their present, but also from the standpoint of their past and future. Very important here are the answers to questions concerning the causes of the emergence of the state and law, the conditions for their formation and development in the present and the past, the main prospects and trends in their evolution in the future.

The essence of the principle of the complexity of studying the state and law is to explore them not only from a legal point of view, but also from a philosophical, sociological, political economy, and political science. It is important to consider all aspects and elements of the state and law not only in statics, but also in dynamics: how they arose, how they developed and what they have become now.

At the same time, in the process of cognition of state-legal phenomena, categories, concepts and legal ones are used (“law”, “legality, “legal relationship”, “law-making”, “law enforcement”) and from the arsenal of other sciences.

In particular, such philosophical categories and concepts as “essence”, “form”, “content”, “structure”, “function”, “system”, “element”, “component”, etc. are very important.

They act as starting points in the process of researching not only state-legal, but also other phenomena, institutions and institutions.

The main meaning of the principle of an organic combination of theory and practice in the process of cognition of the state and law is that the study of various aspects of the state and law at the theoretical level and the development of their concepts cannot be successfully carried out without the accumulation of relevant material and its primary processing at the empirical level, without a thorough analysis and subsequent synthesis of empirical knowledge, without a deep study and generalization of the relationships that have developed between them.

“The constant study and generalization of the practice of functioning of the state and the law of different countries contribute to the socio-political and material activities of people and their organizations aimed at strengthening and improving these institutions”[17]. The analysis of practice, in addition, makes it possible to minimize or completely eliminate all kinds of negative aspects that hinder the normal development of the state and law, to better understand and use the mechanisms of their interaction with the economy and society.

An analysis of practice also makes it possible to develop in depth the main provisions of the theory of state and law, improve its conceptual apparatus, and identify trends and regularities in the development of this science.

Chapter 2. Classification of methods of the theory of state and law

General philosophical methods

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

“Historical experience has brought to life a variety of political and legal

approaches to the study of state and law, various scientific schools, doctrines that, in the study of state-legal reality, proceeded from different philosophical, worldview foundations”[18].

Thus, some of these schools are based on the metaphysical,

materialistic worldview.

Metaphysics (from the Greek. metaphysic – that after physics) – the science of supersensible principles and principles of being. In the history of philosophy, Metaphysics is most often understood as true philosophy. The term Metaphysics was first introduced by Andronicus of Rhodes, a systematizer of the works of Aristotle, who united under this name all his works that go beyond the natural-scientific writings of the ancient thinker.

Throughout the history of philosophy, Metaphysics has either been rejected as a false doctrine that goes beyond experience, or exalted as the highest achievement of the human mind. I. Kant criticized the Metaphysics that preceded him for its speculativeness, for the fact that it dealt with meaningfully limited spheres and at the same time did not know the correct way of knowing these spheres, it only postulated God, the immortality of the soul, the integrity of the world, naively believing that they can be comprehended in the same way as real objects are comprehended. Kant believed that Metaphysics is possible as systematic knowledge, but he himself limited himself only to an analysis of the contradictions into which thought falls when trying to solve the basic metaphysical problems. Kant introduced a distinction between the Metaphysics of Nature and the Metaphysics of Morals; in the latter, the contradictions of pure reason find a practical solution. He also distinguished between Metaphysics and natural science, showing the fundamental difference between the subjects of these disciplines.

Nevertheless, in all areas of knowledge – in the knowledge of man, history, nature – we are faced with metaphysical problems, everywhere we run into something that is inaccessible to the human mind, into some insoluble residue. These problems are not an arbitrary product of human curiosity, not a historical ballast of thought, but the very eternal mystery of the world, rooted in its states and properties. Metaphysical questions are scattered in all areas, they everywhere form the basis of certain areas of philosophy.

Dialectics 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.

“Dialectics is a universal method of cognition and requires taking into account the universal interconnection and constant development of phenomena in the process of cognizing the surrounding reality”[19]. These principles are concretized by the laws of dialectics (the unity and struggle of opposites, the transition of quantity into quality, the negation of negation), as well as the categories of dialectics – concepts that reflect the universal connections of being (essence and phenomenon, content and form, necessity and chance, possibility and reality, individual, special and general, etc.).

Materialism is a philosophical direction that 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, the following conclusions are formulated:

a) the state and law are real phenomena;

b) when studying the state and law, it is necessary to take into account their constant development, 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.

“On the basis of materialistic and dialectical approaches, it can be argued that the state and law are real, objective phenomena that are in constant development, that exist not on their own, but in close connection with the economic, political, spiritual conditions of society, with nature human”[20]. The state and law have their own patterns of emergence and development, and these patterns can be learned. Thus, the most general methodological prerequisites for the study of state-legal phenomena are as follows:

the state and law, as real phenomena, can be the object of scientific analysis;

studying the state and law, one should take into account their constant development, the moment of variability. So, for example, when analyzing the modern legal system of the Russian Federation, it is necessary to imagine that this was not always the case, that this legal system has its own history of development, that everything that exists now has developed, grown out of the legal reality that existed before, that the current state legal system – only a certain stage of its development, and not the crown of history, that in this development there are certain trends.

“Thus, one of the fundamental principles of any scientific research is the principle of historicism; when studying the state and law, one should take into account the diverse connections that exist between various spheres of public life, between economic, political, legal, cultural, demographic, national processes”[21]. In some cases, this connection becomes decisive for the development of the legal sphere of society. Any scientific research must be comprehensive; it is necessary to study state-legal phenomena, focusing on legal practice, on state-legal reality. Any science is not important in itself, it is necessary, first of all, to serve the needs of practice, this is precisely the significance and value of any scientific theory. And, ultimately, the truth of the theory is tested by practice. From this point of view, any scientific research should be objective.

Objective idealism is a cumulative definition of philosophical schools that imply the existence of a reality independent of the will and mind of the subject outside the material modality.

Objective idealism denies the existence of the world in the form of a set of results of the cognitive activity of the sense organs and judgments. At the same time, he recognizes their existence, but he also adds an objectively determined element of human existence to them. As the fundamental principle of the world in objective idealism, a universal supra-individual spiritual principle (“idea”, “world mind”, etc.) is usually considered.

As a rule, objective idealism underlies many religious teachings (Abrahamic religions, Buddhism), the philosophy of ancient philosophers (Pythagoras, Plato).

Subjective idealism is a group of trends in philosophy, whose representatives deny the existence of a reality independent of the will and consciousness of the subject. Philosophers of these trends either believe that the world in which the subject lives and acts is a set of sensations, experiences, moods, actions of this subject, or at least believe that this set is an integral part of the world. A radical form of subjective idealism is solipsism, in which only the thinking subject is recognized as real, and everything else is declared to exist only in his mind.

The founder of subjective idealism in Western philosophy is George Berkeley[22]. Other representatives of the classical form of subjective idealism are Fichte, Hume, similar ideas were also developed by Kant. Among the philosophical currents of the 20th century, various schools of positivism (Machism, operationalism, logical empiricism, linguistic philosophy, etc.), pragmatism, the philosophy of life (Nietzsche, Spengler, Bergson) and existentialism that grew out of it (Sartre, Heidegger) are sometimes referred to as subjective idealism. , Jaspers, etc.).

General scientific methods

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.

Logical method It includes means and methods of logical

study and explanation of law and is based on forms of thinking

and laws of formal logic. Dialectical logic is a theory

knowledge, coinciding with the method of materialistic dialectics,

and formal logic applied to the study of law is one of the special methods of mastering legal reality.

“Law, by virtue of its peculiarities, is the most favorable

ground for the application of logic. It is formal

certain, logically consistent, strictly fixed

system, includes a mass of legislative definitions that

must comply with the rules for defining concepts (definition through the closest genus and specific difference, genetic definition, description of indications, etc.)”[23].

Each of the laws of logic (identity, contradiction, excluded middle, sufficient reason) fully manifests

itself in the right, reflecting its features. All major legal

procedures and processes (and, above all, law-making and

law enforcement) are built in strict accordance with the forms

thinking – rules for operating with concepts, judgments,

inferences.

Any legal norm is a judgment, and it must meet the requirements of judgment. The application of a rule of law to a specific situation, a specific person, is a deductive conclusion (syllogism), where the rule of law is a major premise, the case under consideration is a minor premise, and the decision in the case is a conclusion. Logical operations and methods of proof, analogies have been in the arsenal of jurisprudence since ancient times.

“The use of logical means in the study and explanation of law makes it possible to avoid contradictions in the construction of legislation, to build a logically consistent and thus effective system of law, to reconcile positive, i.e. existing law, with the requirements of natural law, and finally, to correctly and competently apply legal norms” [24].

The logical method is also successfully applied in the study of the state.

The priority here is dialectical logic. Thanks to it, one can find out the objective prerequisites for the emergence and existence of the state, the general laws of its functioning. However, only the unity of dialectical and formal logic in the analysis of the state gives a complete picture of the logic of the state.

It is as follows: state representative and executive power, as an expression of the interests of the people; the ratio of popular, state and national sovereignty, the most optimal form of the state and its effective functions, balanced branches of power.

Outside of this logic, the state cannot exist. Those who destroy the logic of the state destroy the state itself. A sad example of this is modern Russia.

The widespread use of laws and forms of logical thinking, logical means in jurisprudence led to the formation of a powerful direction in the study of the logic of law and state as part of the theory of state and law.

Induction as a logical technique 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 is a logical technique 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.

The system method The system method is based on 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. “State and law are complex systemic formations, therefore, they should be studied in interrelation, this orients to the knowledge of the studied objects as a holistic phenomenon”[25].

The functional 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

Private scientific methods are the use of scientific achievements of technical, natural, related social sciences by the theory of state and law.

The most common methods include the following:

1. Method specifically – sociological research;

2. Modeling method;

3. Statistical method;

4. Method of social – legal experiment;

5. Mathematical method;

6. Cybernetic method;

7. Synergistic method;

Now let’s look at these methods in more detail.

Be First to Comment

Leave a Reply

Your email address will not be published.