When, as a result of official recognition, natural law. Natural law - consolidation of natural rights in the legislation of the Russian Federation and their implementation
As a scientific movement, this theory has a long history. Its main provisions were formed in ancient times. The theory of natural law received its fundamental development in the works of Locke, Rousseau, Montesquieu, Holbach, Radishchev and other thinkers. The ideas expressed in them were enshrined in the American Declaration of Independence (1776), in the French Declaration of the Rights and Freedoms of the Citizen (1789) and other government acts. Natural, innate human rights have received constitutional recognition in all modern legal states.
The essence of this theory is that in addition to positive law, which is created by the state, there is a natural law common to all people, standing above positive law. The latter is based precisely on the requirements of natural law (the right to life, free development, work, participation in the affairs of society and the state). The concept of natural law includes ideas about the innate and inalienable rights of man and citizen, which are mandatory for every state.
Natural law This is a set of rights and freedoms determined by the nature of man and his living in society. Such rights include: human rights to life, freedom, property, communication with others like oneself, procreation, normal conditions of human existence, protection of one’s life and health by society and the state.
In turn, the obligations arising from these rights are also natural not to cause damage to other people, society, the state, and not to interfere with other people in the exercise of their rights. Natural law, therefore, is a set of ideal, deeply moral and extremely fair ideas about law.
Even Roman jurists, along with civil law and the law of peoples, emphasized natural law (jus naturale) as a reflection of the laws of nature and the natural order of things.
Objective law consists of the rules of social solidarity to which the state and citizens are subject
He believes that in society there should be neither the right of the collective to order the individual, nor the right of the individual to oppose his personality to the collective or other citizens. People must be subject to a norm that is binding on everyone, resulting from general solidarity.
In Duguit's interpretation, a social norm is a norm of behavior applied to the external expressions of social life. She is the source of human well-being and stands above the state. Dugi writes: “The state is subject to the rules of law, like the individuals themselves; the will of those in power is a legal will, capable of resorting to coercion only if it manifests itself within the boundaries drawn by the rule of law.” The rules of social solidarity, Dugis emphasizes, constitute objective law, which is not subordinate to the state, but subordinates the state to itself.
Abstracting from the formal features of law, sociological theory fills it social content, proves that law is a balancing force in the life of society. The ideas of this theory clearly express the essence of the rule of law, in which both the state itself and its citizens must obey legal regulations in the interests of the common good.
Normativist theory of law became widespread in the first third of the 20th century. Its authors are considered to be G. Kelsen, an Austrian politician and lawyer; Stammler - German lawyer and sociologist; Novgorodtsev is a Russian legal scholar.
The essence of the normativist theory is the following:
Law is a pyramid of norms;
At the head of this pyramid is the “sovereign norm”, which determines the meaning of the remaining norms (the constitution);
Each norm in a given hierarchy derives its legal force from the one above it and, ultimately, from the sovereign norm;
The strength of law depends on the reasonableness of the construction of the entire hierarchical legal system;
Law “lives” only in codified legal norms, that is, there cannot be law outside the norms (for example, natural law);
Law must be studied and perceived without any connection with religion, philosophy, morality, that is, “in pure form».
Law is a hierarchy of norms, a normative regulator of social relations; it is unthinkable without the state, and the state is unthinkable without law.
The advantages of the theory include the following:
Recognition of the need to structure the legal system, that is, to build it in the form of a hierarchy - from individual acts to a sovereign norm of the highest legal force;
The idea of a sovereign norm is, in fact, a fundamental law of supreme legal force that crowns the entire legal system;
Recognition as law only of codified (written) legal norms, separation of law from philosophy, morality, etc., therefore, the elimination of dualism between “natural” and “positive” law.
The main drawback of the theory is increased attention to the formal side of law.
The normativist direction unites ambiguous views on law and its role in public life, although a certain unity is visible in them. For the first time, the theoretical principles of normativism were outlined by R. Stammler in his work “Wirtschaft und Recht”, in which he defines law as external regulation social life, the purpose of which is to satisfy people's needs. He calls the joint action of people connected in society social matter or economy. Defining the relationship between law and economy, Stammler writes that it “represents the relationship between the form and material of social life.”
He sees the development of law as the development of society itself. “The regularity of social life is the regularity of its legal form, understanding and following the basic idea of law as the ultimate goal of human society.” This pattern manifests itself only in such social life, the regulation of which is carried out in the interests of the freedom of everyone who is in the sphere of law. The ideal of society is a society of “freely willing people,” in which everyone considers the objectively legitimate goals of others to be theirs. Each of those subject to the law must agree with such regulation, if he has already made a decision that is free from purely subjective desires, but consistent with the law, Stammler believes.
The prominent Russian professor P.I. saw legal regulation as a means of satisfying social needs and progressive social transformations. Novgorodtsev.
In the most concentrated form, the main provisions of normativism are set out by the prominent lawyer G. Kelsen. He believed that legal science should study law “in its pure form,” without connection with political, moral and other assessments, since otherwise science loses its objective character and turns into ideology. The starting point for Kelsen's concept is the idea of a “basic (sovereign) norm” as a norm that justifies the effectiveness and legal force of all other norms.
According to this theory, the entire legal system has a stepwise structure, that is, it is consistently derived from the basic norm, forming a hierarchy of norms. Therefore, the task of the theory is to reveal in each specific legal phenomenon its compliance with the supreme norm, which has the highest legal force. Despite the fact that the normativist theory considers the “sovereign” norm to be presupposed (hypothetical), it proves the need for subordination of legal norms according to the degree of their legal force. In this sense, the law, as a normative legal act that has the highest legal force, must comply with all subordinate legal acts. Without this, legal regulation cannot achieve its goal.
On the other hand, the merit of the normativist theory is that it has identified the formal features of law, which constitute its legal essence. Abstracting from all external factors that determine the content of law, normativists set out their position on the question of what law is as a normative regulator of social relations.
Based on its scientific ideas, normativist theory defended the idea of legal statehood. Many of its supporters opposed the opposition of state and law, defined the state as the unity of the internal meaning of all legal provisions, as the implementation and embodiment of legal norms into a single law-order. Kelsen believed that the state is just as inconceivable without law as law without the state. Both are two sides of a single phenomenon. Power is right. The rights and obligations of the state are no different from the rights and obligations of other persons, because in both the first and second cases they are determined by law.
Psychological theory of law formed in the first half of the 20th century. Its authors were L.I. Petrazycki, G. Tarde, Ross, Reisner.
The main provisions of this theory include the following:
The reasons for the emergence of law are rooted in the psyche of people;
Subjective rights arose from a sense of entitlement to something;
Legal duties arose from the psychological feeling of being obligated to do something;
Law is divided into intuitive (based on personal experiences) and positive (established by the state);
There is genuine law, which represents people’s psychological experiences about their rights and responsibilities, and official law is a set of norms.
The advantages of this theory are the following:
Recognition of the psychological element in the emergence and functioning of law;
Intuitive law has much in common with legal consciousness.
The main disadvantages of the theory:
Insufficient consideration of other factors (except psychological);
Declaration of intuitive law (in fact, legal consciousness) as valid law.
Petrazycki believed that empirical science studies two types of existence - physical and mental. Law, as one of the phenomena of this existence, belongs to the world of the psyche and represents an imperative-attributive (obligatory-demanding) experience of people. Human actions can be free and bound. Petrazhitsky calls the consciousness of the internal connectedness of the will and human behavior ethical consciousness. This is the consciousness of ethical obligation.
It is based on special emotions that are experienced as an internal obstacle to freedom and which prompt a person to take any action. Norms, like authoritarian prohibitions and commands, are only a reflection of these experiences.
Psychological theory distinguishes between ethical duty as a legal obligation and ethical duty as a moral obligation. If our duty in ethical consciousness seems to be connected to another person, mentally assigned to him as belonging to him, and this other has a claim on our duty, on our fulfillment of the obligation, then in this case we are talking about a legal duty. If the duty does not seem to us to belong to another, and this other has no claim on us fulfilling our duty, then in this case there is a moral obligation.
Legal relations between two parties, consisting of debts owed by one party and assigned to the other party, are legal relations.
Legal experiences are based on attributive (demanding) emotions of duty, while moral experiences are based on only imperative (obligatory, but unpretentious) ethical emotions.
If in the legal sphere the sale of rights is normal, then in the moral sphere it is unthinkable.
If in the legal sphere it is necessary to distinguish between the paired nature of subjects and objects (who is obliged and to what, who has a claim to fulfill an obligation and what he has the right to), then in the moral sphere it is important to know who is obliged (the subject) and what is obliged to ( an object). Therefore, law is also provable and controllable.
Petrazycki divides law into autonomous (or intuitive) and positive (or heteronomous). Autonomous right creates experiences that are fulfilled at the call of the inner “voice” of conscience. A positive legal representation occurs when it is based on someone else’s authority, on an external normative act. Intuitive law is individually free and changeably diverse in nature. Positive law is capable of creating legal regulations that are binding on all subjects of law.
Petrazhitsky substantiates that law performs distributive and organizational social functions. The content of the distribution function is expressed in the fact that the legal psyche distributes various material benefits between individuals and their associations; it also endows citizens with ideal benefits: personal integrity, freedom of conscience, freedom of speech and others. The vesting of subjects with power is the essence of the organizational function of law.
Despite the well-known theoretical complexity and “isolation” on the psychological side of the legal phenomena of public life, many of the fundamental provisions of Petrazycki’s theory, including the conceptual apparatus he created, are accepted and quite widely used by the modern theory of state and law.
Marxist theory of law arose in the second half of the 19th - early 20th centuries. and was dominant in the USSR and a number of socialist countries until the end of the 80s. XX century The founders of this theory are K. Marx (1818 - 1883); F. Engels (1820 - 1895); V. I. Lenin (1870 - 1924).
The essence of the Marxist theory of law consists of the following provisions:
The theory is based on a class approach;
Law is the will of the ruling class elevated to law;
Law reflects existing production relations, where the bulk of the means of production are concentrated in the hands of a small group of owners;
The right is established and protected by the state.
Law is the will of the ruling class elevated to law, the content of which is determined by the material conditions of society.
A strong feature of the theory was the introduction of an economic basis to the question of the study of law, a sober assessment of the role of the state and the state elite in the creation of law.
The main drawback of the theory is the exaggeration of the role of class antagonisms, the underestimation of the integrating function of law (or the means of resolving contradictions in society).
The materialist (class) theory of law is presented in the works of the founders of Marxism-Leninism and their followers. The basis of the materialist theory is the thesis that law is the expression and consolidation of the will of the economically dominant class. Like the state, it is a product of class society. Its content is of a class-volitional nature.
“Besides,” wrote K. Marx and F. Engels, “that the dominant individuals in given relations must construct their power in the form of a state, they must give their will, conditioned by these specific relations, universal expression in the form of state will, in form of law." Thus, the emergence and existence of law is explained by the need for normative regulation of social relations in the interests of the economically dominant class.
Marxist-Leninist teaching sees the essence of law in its class and material conditionality. Rejecting bourgeois ideas about law, Marx and Engels wrote: “Your right is only the will of your class elevated to law, a will whose content is determined by the material conditions of life of your class.” The economic conditionality of law is the most important fundamental position of Marxist theory.
Criticizing Proudhon, who considered arbitrariness, the discretion of the ruler to be the decisive cause of economic life, Marx noted: “Indeed, one must not have any historical information in order not to know the fact that at all times rulers were forced to submit to economic conditions and never could impose laws on them. Both political and civil law always only expressed and recorded the demands of economic relations.”
Subsequently, the position of Marxism on the class-volitional content of law was transferred by our legal science to domestic law. It was argued that in a society where there are no antagonistic classes, the will of all friendly classes and sections of society, led by the working class, is expressed in law. This confirmed the idea that the class nature of law is its constant and objective feature.
An important aspect of the Marxist theory of law is manifested in the criticism of the socio-economic views of F. Lassalle, which were based on the socialist idea of public ownership and equality of distribution of socially produced products. Being a principled opponent of private property, considering it the basis of the exploitation of man by man, Marx, nevertheless, objects to Lassalle.
What is the essence of these objections? Marx believed that society, which emerged from the depths of private capitalist relations, at the initial stages of its development (the first phase of communism) still bears the imprints of the past. And if Lassalle says that public ownership of the basic means of production allows producers of a socially useful product to receive what they have earned (minus the amount of the results of labor that goes into public funds), and this means the “kingdom” of equality, then Marx considers this statement to be erroneous.
“Equal right,” according to Marx, does exist here, but it is still “bourgeois right,” which, like any right, presupposes inequality.
Every law is an application of the same magnitude to different people, who in fact are not the same, not equal to each other.
Therefore, “equal right” is a violation of equality and injustice. Such inequality is inherent in the physiological and social position of people. In conditions when everyone must work an equal share of the social product with others, people who, due to their physical or mental state, cannot be equal participants in social production and consumers of its benefits, find themselves in an economically disadvantaged position.
Hence the conclusion follows that with equal work, with equal participation in the social consumer fund, one will actually receive more than the other, and will turn out to be richer than the other. To avoid all this, the right, instead of being equal, must be unequal, taking into account the natural inequality of people. Concretizing the provisions of Marx, Lenin writes that in the first phase of communist society, “bourgeois law” is not completely abolished, but only partially, to the extent of the economic revolution that has already been achieved, that is, only in relation to the means of production. “Bourgeois law” recognizes them as the private property of individuals, but socialism makes them common property, and only in this part does “bourgeois law” disappear. But it remains in its other part: as a regulator of the distribution of labor and the distribution of products among members of society.
Marxist-Leninist theory considers such a “shortcoming” to be inevitable in the first phase of communism (after the overthrow of capitalism), because people will not immediately learn to work for society without any legal norms, since there are no necessary economic conditions for this. There are no other norms other than “bourgeois law”. The right dies out completely when society implements the rule: “from each according to his ability, to each according to his needs,” that is, when people are so accustomed to observing the basic rules of society and when their work is so productive that they will voluntarily work according to abilities.
Thus, in accordance with the Marxist-Leninist concept, class and economic reasons underlie the emergence of law, its functioning and inevitable withering away.
World science and practice of state-legal life of society does not deny the determining role of social and economic factors in the emergence and development of law, but this problem is considered from a different perspective.
If Marxism-Leninism sees law as a means of consolidating the will and protecting the interests of the economically dominant classes, then representatives of other scientific movements focus on the relationship between law and the state, law and personality. In their understanding of law and legal regulation, the main place is occupied by a person with his various interests and needs, and not just the opposing interests of classes.
Class-economic theory limits the life of law (as well as the state) to the historical framework of class society.
She believes that law is a historically transitory phenomenon that is necessary for society only at a certain stage of its development. With the disappearance of classes, it will completely lose its social value.
Marxist-Leninist theory asserts that law is a phenomenon derived from the state, fully determined by its will. By proclaiming the primacy of the state over law, Marxism comes into conflict with the theory of the rule of law, which does not deny the leading role in lawmaking, but believes that the state itself should obey the laws, and not stand above them.
The undoubted merit of Marxist theory is the conclusion that law cannot be higher than the economic and cultural structure of society. However, her understanding of law is limited only to a class society, in which the state is the only creator of law, rejecting the natural rights of man and his active participation in the formation of the legal niche of society. Modern science and practice social development confirm that in a civilized society law “dominates” over the state, determines its structure and forms of activity, and acts as a constant objective means of consolidating society. Society cannot exist without legal regulation.
The next postulate of Marxism about law as “equal scale in relation to unequal people” in conditions of private property and “unequal scale in relation to different people” in conditions of public property was confirmed only in its first part. Relations that arise on the basis of all-encompassing public (impersonal) property turn into a total leveling of human interests, the regulation of which is impossible through legal laws. Law under such economic conditions turns into its antipode. It becomes the main obstacle to satisfying the individual interests of the individual.
Law is a necessary tool for ensuring the economic freedom of the individual. Moral, religious, national and other factors, including in the sphere of legal regulation, orient and largely determine the directions of economic development of society. In this regard, the economic conditionality of law acts as a “subject factor” that ensures the individual interests of people, including economic ones.
Law, if it reflects the objective needs of social development, is “an impartial regulator of the relations of production and consumption. Its moral foundations in the civilized world take into account and implement these needs within the framework of permitted and prohibited behavior of participants in social relations.
Realistic school of law. Law is an interest protected by the state; it is nothing without state power.
In contrast to the historical view, according to which law develops evolutionarily, due to its internal causes, the creators of the realistic theory believe that law arises and develops under the influence of external factors. These factors are the interests that move a person and force him to set goals that are implemented through law.
The founder of the realistic theory of law was the famous lawyer Rudolf Iering. He outlined the essence of his theory in the works “The Spirit of Roman Law”, “The Struggle for Law”, “The Goal in Law”, which were published in Russian translation at the beginning of the 20th century. According to Iering, law is an interest protected by states. It guarantees the vital interests of the individual and helps meet the various needs of people.
The right belongs not to the one who expresses the will, but to the one who uses it. The subject of law is the one who is intended to enjoy the right. The task of law is to guarantee this use.
The struggle of peoples, state power, classes and individuals against lawlessness lies in the very essence of law. Iering writes that “all the great acquisitions in the history of law: the abolition of slavery, serfdom, freedom of land ownership, trades, beliefs, etc. - all of them must be won through a fierce, often centuries-long struggle, and the path of law in such cases is always indicated by fragments of rights...”
The author believes that there is no absolutely fair law. The value of law lies in the realization of its purpose. Born in the struggle of interests, law acts as a force that subordinates the will of some to the interests of others, subject to the indispensable condition of observing the principles of justice in human society.
The statement of supporters of the realist theory that law, as a means of achieving a goal, acts in this capacity as a necessary tool for organizing, maintaining and preserving society is worthy of respect and gratitude.
Law without state power, in their opinion, is an empty phrase. Only the power that applies the rules of law makes law what it is and what it should be. The fight for the right is the responsibility of a person who has the right to himself, and the protection of the right, that is, counteracting an offense, is an obligation not only in relation to himself, but also in relation to the whole society, the state: everyone, defending his right, defends thereby establishing the norms of objective law on which his subjective law is based.
Despite the external “militancy” of Iering’s realistic concept, in certain aspects it combines the ideas about law of various theories: natural, economic, psychological.
Firstly, realistic theory recognizes the unity and variability of law. On the one hand, for her there is no division of law into positive and natural law - law exists only in the form of positive (positive) law. On the other hand, there is nothing immutable or eternal in law: it is a constantly changing phenomenon, reflecting new conditions of social life.
Secondly, representatives of the realistic school see a direct connection between law and the state. State power is a necessary condition for the existence of law. In contrast to the theory of natural law, the need for law-making activity of the state as a conscious creator of law is recognized. Prominent Russian lawyer and political figure S. M. Muromtsev wrote that law is not an unconscious product of the national spirit, but a product of the conscious activity of people.
Thirdly, the realistic school substantiates the unity of legal rights and obligations of subjects of legal relations, accepted by many teachings on law, without which the existence of civil society and the normal interaction of its members is impossible.
Fourthly, the views of realists contain the most important element of legality: the denial of arbitrariness. Only state power, on the basis of established laws, can apply coercion to a person.
With all its advantages and disadvantages, the realistic school introduced its own understanding of law, which in a number of fundamental provisions did not undergo significant changes even at a later time. Of course, E. Trubetskoy is right, who argued that each rule of law is identical to the interest that caused it, that interest constitutes the very content of law. But due to frequent mistakes by legislators, the rules of law often do not correspond to the interests they are supposed to serve. Such cases occur in our time, so it is not the rules of law that should apparently be “blamed” for the fact that they inadequately reflect the interests of people, but the legislator who created such rules.
Despite the inconsistency and differences in scientific ideas about law, they have a number of common provisions:
Law is a social phenomenon, without which the existence of a civilized society is impossible;
Law in a normative form must reflect the requirements of universal justice, serve the interests of society as a whole, and not its individual classes or social groups, take into account the individual interests and needs of the individual as the fundamental basis of society;
The right to private property is the basis of all human rights;
Law is a measure of behavior established and protected by the state.
Concept and signs of law
Law is such a unique, complex and socially necessary phenomenon that throughout the entire period of its existence, scientific interest in it not only does not disappear, but also increases.
It is very difficult to formulate a definition of law as a socio-political phenomenon, and by the end of the twentieth century there is no definition that would be generally accepted. Problems of defining the concept of law are traditionally among the most important problems in domestic and foreign legal science.
Law is a complex, multifaceted phenomenon that has a rich conceptual expression.
Firstly, they distinguish law in the general social sense (moral law, law of peoples, etc.);
secondly, they distinguish law in a special legal sense, as a legal instrument associated with the state.
Law (in the formal legal sense) is a system of generally binding, formally defined legal norms expressing public, class will (specific interests of society, classes, etc.), established and ensured by the state and aimed at regulating social relations.
This definition of law is characteristic of the normative type of legal understanding. But the normative understanding of law is not the only one.
There are many scientific ideas, movements and points of view in the world regarding what law is. Issues of legal understanding are among the “eternal” ones already because a person, at each of the turns of his individual and social development, discovers new qualities in law - new aspects of its relationship with other phenomena and spheres of social life.
What does it mean to understand law?
Knowledge of law
His perception (evaluation) and
Treating it as an integral social phenomenon.
The so-called broad understanding of law differs from the normative understanding of law, the supporters of which include in the concept of law not only norms, but also other legal phenomena, the range of which varies among different authors.
Some of them believe that the concept of law covers:
Rules of law and legal relations;
Others are rules of law, legal relations and legal consciousness;
Still others understand by law the rules of law and their application;
Fifth - rules of law and legal order;
Sixth - norms of law, principles of law, lawmaking, fundamental rights and responsibilities of citizens, which predetermine the legal status of a citizen, the rule of law;
Seventh - principles of law, rules of law, specifying provisions developed by judicial, arbitration and administrative practice in the process of interpretation and application of legal norms, acts of application of law and legal relations;
Eighth - the legal superstructure of a certain socio-economic formation;
Ninths - social life itself, etc.
The majority of supporters of this trend are characterized by a confusion of law either with those taken in various combinations individual legal phenomena, or with such more voluminous, complex legal entities as a legal superstructure, a legal system, a mechanism of legal regulation.
In our opinion, the normative understanding of law has a clear advantage.
The legal literature rightly points out that “it is from the position of the normative understanding of law that the following are developed:
Theory of legal relations, lawmaking and law enforcement,
Theory of legal facts and factual composition,
Problems of responsibility, effectiveness of legal norms,
The contradictions of the legal superstructure are revealed,
The relationship and interaction of the state, law and economics, law and other phenomena of social life are explored.
And based on such research, scientifically based recommendations are possible aimed at improving the entire system of legal regulation.”
By and large, this is precisely what is lacking in the works of most proponents of a broad understanding of law.
In addition, the broad approach does not contribute to the development of a clear categorical apparatus of jurisprudence.
Law, as one of the social regulators, always has certain norms or rules of behavior.
E.N. Trubetskoy wrote on this occasion that any right “expresses a rule of conduct.” In whatever sense we use the word “right,” “we always mean by it something that should not be infringed upon, that should not be violated.” This word “is always associated in our mind with this or that behavior, the prescription of some positive action or abstinence from action.”
In addition, law is always a certain set, or rather a system of norms. “This is not a random set of random norms, but a strictly verified, ordered system completely certain rules behavior."
Based on the inextricable connection between law and the state, which ensures its functioning and implementation by power-coercive means, they often come to the conclusion that law is generated by the state. This conclusion is further supported by the fact that the state officially sanctions some of the norms and issues them in the process of its legislative activity.
In this case, there is a basis for defining law as a set of legal norms issued or sanctioned by the state and ensured by its coercive force.
The following basic definition can be formulated:
Law is a system of generally binding, formally defined, and guaranteed by the coercive force of the state rules of conduct of a general nature, emanating from the state, which regulate social relations and are based on the principles of natural law.
It is this definition of law that we will use when considering various legal phenomena in the future (sources of law, systems of law, legal relations, offenses, etc.).
Law as a specific, different from others, social regulator has the following characteristics:
General validity - law regulates and protects the most important social relations for the vast majority of community members. It is the high social significance of these relations that allows us to consider them as universally significant.
The universality of a rule of law arises along with it.
G. Kelsen quite reasonably believed that “a rule of law is a rule of behavior, according to which one or another person (group of persons) must act in a certain direction, regardless of whether he wants to behave in that way or not.”
General obligatory means that all members of society must necessarily fulfill the requirements contained in the rules of law. The universality of law as a whole and its individual norms does not depend on the subjective attitude of the addressees towards them. The universality of law in a civilized, rule-of-law state extends not only to “ordinary” citizens, officials, various non-state bodies and organizations, but also on the state itself.
Publicity - law is adopted on behalf of the entire society and extends its impact to all members of the community, regardless of their participation in law-making activities and internal psychological assessment, the significance of the rules of behavior established through law.
The inextricable connection between law and the state. There are many systems of social norms in the world. But only legal norms come from the state, all others are created and developed by non-state - public, party and other organizations. When creating rules of law, the state acts directly, through its authorized law-making bodies, or indirectly, by transferring certain of its powers to issue certain normative legal acts to non-state bodies or organizations.
The inextricable connection between law and the state as a sign of law presupposes the identification of several aspects of interaction:
Law acquires legal significance only as a result of targeted law-making activities of the state;
The implementation of the right is ensured by a system of legal guarantees established by the state; finally,
The state, by establishing generally valid rules of behavior with the help of legal norms, determines penalties for violation or failure to comply with these rules.
Moreover, the implementation of the law and the application of legal liability measures to its violators is ensured by the possibility of using the mechanism of state coercion.
Thus, we can say that the connection between law and the state is manifested in the fact that the rules of law are issued on behalf of the state, guaranteed by the state and sanctioned by it.
Formal certainty - legal regulations are expressed in forms determined by the state (in the form of legal customs, precedents, contracts, regulations, etc.) and, as a rule (at the present stage of development of society), are written down.
The formal certainty of law lies in the fact that the norms of law and their content are formal and precisely defined. The rules of law precisely indicate which facts, circumstances, subjects they apply to, and what legal consequences they entail. Formal certainty finds its expression in the external forms of existence of legal norms.
Rules of law are officially enshrined in laws and other regulations, which are subject to uniform interpretation. In case law, formal certainty is achieved by the official publication of court decisions, recognized as models that are mandatory when considering similar legal cases. In customary law, it is provided by the formula of the law, which authorizes the use of custom, or by the text of a court decision adopted on the basis of custom. As a result, on the basis of legal norms and individual legal decisions, the subjective rights, obligations, and responsibilities of citizens and organizations are clearly and unambiguously determined.
Normativity. Law has a normative nature, which makes it similar to other forms of social regulation - morality, customs, etc. Law defines and consolidates unified standards of generally valid behavior.
The normativity of law lies in the fact that law is composed of norms as rules of behavior that are of a general nature, designed not for isolated cases or relationships, but for all relationships of a certain type.
The systematic nature of law is manifested in the fact that law is not a simple conglomerate, not just a set of norms, but a coherent system of them. The norms that form the legal system are structured into groups (sectors, sub-sectors, institutions).
All these branches, institutions and individual norms of law, being to a certain extent independent divisions, constitute a single phenomenon - law, and in this capacity they, as parts of a single whole, are interconnected and interact. No rule of law regulates social relations independently, in isolation, but only in interaction with other rules.
Functions of law
The functions of law are the main directions of legal influence on social relations, within the framework of which the socio-legal nature of law is expressed.
The functions of law are directly related to its action, to the implementation of the properties of the official power regulator of social relations.
The functions of law are closely related to its goals and objectives.
A goal in law is an ideal expression of an objective pattern, an ideal force that motivates people to behave properly and is the proximate cause of a certain direction of this behavior.
The objectives of law usually indicate those immediate issues and problems whose solution is necessary to achieve the goal.
The task of law is an external (determining) factor in relation to the function of law, in accordance with which its implementation is carried out.
The goals and objectives of law are specified in its functions. They acquire a certain significance when classifying the functions of law, since it is the goals and objectives of law that indicate the main directions at which legal influence and the activity of law are aimed.
The variety of forms of influence of law on various social relations determines the presence of many functions of law.
The functions of law in the most general form can be divided into general social and special legal.
The general social functions of law include: value, cognitive, informative, communicative, etc.
This group of functions is sometimes called socio-psychological functions.
This is due to the fact that:
Firstly, the direct object of these functions is consciousness, the psyche of the individual;
Secondly, they are aimed at the formation of individual legal consciousness, which is a socio-psychological phenomenon, an inextricable unity of the social and psychological;
Thirdly, they are carried out through the socio-psychological mechanism of law.
The value function of law means defining and consolidating, with the help of law, the most significant value criteria for society (life, health, socio-political stability, property, etc.).
The cognitive function of law involves the use of legal means and methods in the process of cognition of the surrounding reality. In this case, familiarity with the law allows you to understand the content of generally valid rules of behavior in order to be able to implement them correctly in the future.
The informative function of law allows us to speak of law as a powerful information system containing information of a wide variety of types and, above all, information about the rules of possible, proper, and unacceptable behavior. Moreover, in the vast majority of cases, the law contains information of an open nature. In particular, in accordance with Russian legislation, a law that has not been published in the media cannot enter into legal force ( Rossiyskaya newspaper, Collection of Legislation of the Russian Federation).
The communicative function of law characterizes law as a connecting element through which communication between people is carried out, public organizations, states. For example, it is with the help of law that social and legal contacts are established in the field of civil law and procedure, criminal procedure, etc.
The special legal functions of law include regulatory and protective functions.
The essence of the regulatory function is to determine and formally consolidate standards of generally valid behavior, focusing on which subjects independently, or with the help of competent government bodies, realize their positive interests.
The regulatory function, in turn, consists of static and dynamic functions.
The regulatory static function of law involves the use of legal means and methods to ensure the stability of the socio-political system. This function is expressed in the impact of law on social relations through their consolidation in certain legal institutions. Law, in this case, first of all, legally consolidates and elevates to the category of clearly regulated those social relations that represent the basis for the normal, stable existence of society and correspond to the interests of its majority or the forces in power.
For example, Article 8 of the Constitution states that “the unity of the economic space is guaranteed in the Russian Federation.” In this case, the main task of legal regulation is to maintain the stability of the single economic space that has developed within the state territory. The implementation of the static function of law is carried out in the forms of direct implementation: the use of opportunities, the fulfillment of obligations, and the observance of prohibitions.
The dynamic function involves the use of legal means and methods to bring positive changes to the current situation. For example, in Art. 40 of the Constitution states that in Russia “State authorities and local governments encourage housing construction and create conditions for the exercise of the right to housing. Low-income...housing is provided free of charge from state...funds in accordance with the norms established by law.” Thus, with the help of law, changes can be made to the established social order.
The essence of the protective function is to prevent violations of the rule of law established through legal norms, timely detection and suppression of offenses, and bringing offenders to legal responsibility. In other words, the protective function is expressed in the directions of legal influence aimed at protecting the prevailing normal social relations, their inviolability and, accordingly, at the displacement of relations that are contrary to the interests of a given social system. Consequently, the direct object of the protective function is not those relationships that society needs, but those that society wants to get rid of.
The main property of this function is the establishment in normative regulations of prohibitions to commit actions undesirable to society, the composition of offenses and legal sanctions applied to persons who violate the rules of law.
The protective function, in turn, consists of preventive and operational.
The preventive function involves the use of legal means and methods in order to prevent possible, but not yet committed, offenses. The preventive function can be carried out both in relation to all subjects of law (the most important task of the legal regime of legality is to prevent facts of illegal behavior on the part of all members of the community without exception); as well as in relation to certain social groups, whose representatives are most prone to committing offenses (persons released from prison, “difficult teenagers”, people prone to alcohol abuse, etc.).
The operational function involves the use of legal means and methods to identify and suppress offenses, bring offenders to legal responsibility, administer justice, and execute punishments.
In contrast to the preventive function, which is implemented in relation to a non-personalized circle of people, the operational function is carried out in a personalized manner, i.e. in relation to specific individuals (offenders).
Principles of law
The principles of law are the basic starting principles, provisions, ideas that express the essence of law as a specific social regulator.
The principles of law express the main thing, the fundamental thing in law, the trends of its development, what the law should be oriented and aimed at.
Principles express the laws of law, its nature and social purpose, and represent the most general rules of behavior that are either directly formulated in the law or derived from its meaning.
The principles of law, on the one hand, reflect its objective properties, determined by the laws of development of a given society, the whole range of historically inherent interests, needs, contradictions and compromises of various classes, groups and segments of the population. On the other hand, the principles of law embodies its subjective perception by members of society: their moral and legal views, feelings, requirements, expressed in various teachings, theories, and areas of legal understanding.
Therefore, the principles of law should be considered taking into account both the unity and the characteristics of both noted sides, from the standpoint of the general idea of the objective and subjective in law that has developed in the legal and philosophical sciences.
Depending on the scope of distribution, general legal, intersectoral and sectoral principles are distinguished.
General legal principles:
Justice;
Formal legal equality of citizens;
Humanism;
Democracy;
Unity of rights and obligations;
A combination of persuasion and coercion.
These principles apply in all branches of law without exception.
If the principles characterize the most essential features of several branches of law, then they are classified as interbranch.
Among them are:
The principle of inevitability of legal liability;
The principle of adversarial and public proceedings;
The principle of non-retroactivity of the law.
Principles that operate within only one branch of law are called sectoral. These include:
The principle of equality of parties in property relations - in civil law;
Presumption of innocence - in criminal proceedings;
Presumption of guilt - in civil proceedings, etc.
Analysis of the essential content of the principles of law not only helps to determine the general direction of legal influence, but can also be used to justify a decision in a specific legal case (for example, in the process of applying an analogy of law).
The relationship between state and law
The unity between these phenomena lies in the fact that the state and law:
1) arise and develop together;
2) have the same approaches to essence and typology;
3) act as means of control, instruments of power;
4) are designed to combine and ensure personal, group and public interests;
5) are based on a single basis, determined by socio-economic and spiritual factors, etc.
Differences between state and law:
1) if the state is a special organization of political power, then law is a social regulator;
2) if the state expresses force, then law expresses will;
3) if the primary element of the state is a state body, then the primary element of law is the norm;
4) they also do not coincide in form, function, structure, elemental composition, content, etc.
Interaction between state and law:
On the one hand, the impact of the state on law consists in the fact that the first forms, changes, abolishes the second (lawmaking), and also implements and protects it (law enforcement);
On the other hand, law influences the state, regulating the activities of the state apparatus, establishing the forms and competence of its bodies.
There are the following approaches to the relationship between state and law.
The first is statist, based on the priority of the state over law. According to this approach, law was considered as a product government activities, as its consequence. This approach was widespread in the domestic legal literature. It was believed, for example, that law is subordinate to the state. The actual condition for this approach was political practice, which tended to see law as a kind of appendage of the state. The theoretical prerequisite was a formal dogmatic attitude to the concept of law as a set of norms issued by the state.
Another view (liberal) on the relationship between state and law was established in line with natural law views. Supporters of the so-called school of natural law, who derived the concept of the state from the social contract, proceeded from the state’s limitation of law, which, in their opinion, resulted from the inviolability of natural law and the inalienability of the individual’s subjective public rights based on it. From the perspective of this approach, law has unconditional priority in comparison with the state. Law arises before the formation of the state. It is older than the state; no state and no power is the original source of law.
There is a third point of view on the problem under consideration - a rational-legal approach, which allows, to a certain extent, to integrate the views of supporters of the noted positions and at the same time avoid extremes in assessing the relationship between the state and law.
According to this approach, the connection between the state and law does not have such an unambiguous cause-and-effect nature (the state gives rise to law or the state is born from law). This relationship seems more complex and has the character of a two-way dependence: the state and law cannot exist without each other, which means that there is a functional connection between them.
Chapter II.
FORM AND STRUCTURE OF LAW
§ 9. Sources of law
In jurisprudence, the concept of “source of law” is one of the “eternal” ones: it has been interpreted and applied by jurists in many countries of the world for centuries. The word “source” has different connotations. At the same time, the generally accepted meaning of this word means something that gives rise to a process or phenomenon, serves as a foundation, root, cause, starting point.
Law also has its beginning, its source.
WHAT IS A SOURCE OF LAW?
As you already know, law originates in the life of a person and society. Its basis is objective reality, social relations (economic, political, cultural, etc.), the will of citizens, the will of the people, the will of the state. Some lawyers call the set of objective reasons that contribute to the formation of law the material source of law. When the law becomes a legal reality (that is, officially enshrined in the form of legal acts), it must have an accessible form of expression. The external form of expression of the content of law is usually called the form of law. The form makes it possible to gain knowledge about the content of law - its norms, as well as institutions and industries (which still needs to be discussed separately). In modern jurisprudence, the concepts of “source of law” and “form of law” are most often identified. We will adhere to this point of view.
So, sources of law- these are officially established forms of external expression of the content of law. Traditionally in a group main include normative legal act, legal custom And judicial precedent. It should also be noted that academician V. S. Nersesyants (1938-2005), one of the famous Russian jurists, included among the main sources natural law.
MAIN SOURCES (FORMS) OF LAW
Before revealing each of the sources of law, we bring to your attention a generalized diagram:
Legal custom (customary law)- the oldest source of law that has remained in effect to this day. It can be defined as a rule of behavior that has become a habit of the people, which is sanctioned by the state (officially recognized) as a generally binding rule of law.
It is clear that not every custom becomes a rule of law: the state agrees to recognize and protect only what it considers useful for society.
Recognition of a custom and its transformation into a norm is carried out in different ways. Sometimes the state sanctions a custom in official form. As already noted, in Russian legislation (Article 5 of the Civil Code of the Russian Federation) secured the concept of “business customs”.
But there may be another way. The custom is not documented anywhere, but the state actually, although unofficially (“tacitly”), sanctions it. Thus, Russian courts usually leave children with their mother when spouses divorce, although there is no such legal norm in our legislation. In general, the role of custom in domestic legislation is insignificant.
Judicial precedent is a court decision on a specific legal case that serves a generally binding sample , when considering similar cases. Moreover, only the highest judicial bodies have the right to make such a decision. Thus, recognition of judicial precedent as a source of law means recognition of the courts’ right to create new legal norms (law-making function). Judicial precedent is most widely used in the legal systems of England, the USA, Australia and a number of other countries (Anglo-Saxon legal family, you will learn about it from the material §11).
There is currently no case law in Russia. At the same time, proposals are being made to recognize the decisions of the Constitutional Court of the Russian Federation, as well as the decisions of the Plenum of the Supreme Court of the Russian Federation, as sources of law.
Regulatory (or normative) act- is an official document expressed in writing, created by the competent government authorities and containing the rules of law. It has a number of advantages over other sources. First of all, this is a document official emanating from the state. Much follows from this: and his universality , And warranty on the part of the state, and, of course, the inevitability of forced sanctions against violators of legal norms. In addition, law-making bodies have the opportunity promptly publish it, change it, cancel it. Since this is a public document, it is subject to official publication (Article 15 of the Constitution of the Russian Federation). And therefore, the state can demand compliance with the legal norms contained in it. Finally, the regulation must be stated special legal language so that its wording is accurate and understandable, interpreted unambiguously, without ambiguity. (Think why.)
Natural law as a source of positive law in force in the country - these are officially recognized by the state and enshrined in its constitution and other regulations natural born And inalienable (natural) human rights.
The role of natural law as one of the sources of positive law was recognized by Roman jurists. In subsequent history, the ideas and principles of natural law had a constant influence on the development of positive European law. In the era bourgeois revolutions and transformations in Europe and America, which you know about from the course new history, natural human rights receive direct enshrinement in regulations - declarations, constitutions and other documents. For the first time in history, natural law received official recognition and legislative codification on July 4, 1776 in the famous Declaration of Independence of the United States. And in 1789, France adopted the no less famous Declaration of the Rights of Man and the Citizen, which also formally established natural and inalienable human rights. A new stage in the development of law began: natural law acquired official generally binding legal force and thus it became independent source positive law.
In the 20th century, after the horrors of World War II, this process became especially active. In almost all European countries, and then here in Russia (in 1993), natural human rights and freedoms received constitutional recognition and enshrinement as fundamental source in the hierarchy of sources of current national law. Natural law, by its very essence and humanistic potential, continues to remain natural law, playing the role of the imperative in relation to the entire body of existing positive law.
MAIN TYPES OF REGULATORY ACTS
The contents of this section can be schematically presented as follows:
As can be seen from the diagram, regulations are divided into two types: laws and regulations. The classification is based on legal force normative act. And legal force is determined by the place of the government body that adopted the normative act in the general system of law-making bodies of the country (you will understand this in the course of further explanation).
Laws have the highest legal force in relation to by-laws and regulate the most significant relations. The supremacy of laws is explained by the fact that they are adopted only by supreme legislative body countries - Federal Assembly - Parliament of the Russian Federation. In exceptional cases, laws are adopted by referendum - popular vote. This is how the Constitution of the Russian Federation was adopted in 1993. Taken together, the laws of the Russian Federation form a hierarchical system of regulations of varying legal force, which is reflected in the diagram of the hierarchical ladder of regulations:
At the top of the hierarchy is Constitution of the Russian Federation - The basic Law. As a legal act, it has supreme legal authority in the system of all regulatory acts of the country, at the same time it has direct action (this feature will be discussed in §24). The Constitution of the Russian Federation is based on a new natural law understanding (ideas of natural law). The innate and inalienable human rights and freedoms enshrined in it (Chapter 2 of the Constitution of the Russian Federation) have defining meaning in relation to all other sources (and norms) of positive law in force in the Russian Federation. Not a single normative act adopted in the country can contradict the Constitution; otherwise, it has no legal force and is subject to cancellation.
After the Constitution of the Russian Federation, the greatest legal force has general federal laws, which are divided into two types: federal constitutional laws and federal laws.
Federal constitutional laws regulate issues of public life of particular importance. To pass such laws it is necessary qualified majority votes (i.e., at least three-quarters of the votes of the total number of deputies) in each of the chambers of the Federal Assembly. The adoption of 14 such laws is envisaged (some of them have already been adopted, for example, federal constitutional laws on the referendum of the Russian Federation, on the Commissioner for Human Rights in the Russian Federation, on the judicial system, on the Constitutional Court of the Russian Federation, on the Government of the Russian Federation, on the formation of a new subject within the Russian Federation, etc. .).
Federal laws also regulate significant issues in society. They are divided into current (regular) And codified . Current ones include, for example, federal laws on the media, environmental protection, joint stock companies etc. Codified - Civil Code of the Russian Federation, Labor Code of the Russian Federation, Criminal Code of the Russian Federation, etc. ( code - literally “a collection of laws”, in the modern sense - a law in which the rules of law related to one branch of law are combined and systematized; The Civil Code of the Russian Federation, in particular, contains the most important rules governing property and personal non-property relations). These laws have less legal force than the Constitution and federal constitutional laws and should not contradict them.
Regulations(decrees, resolutions, orders, instructions, etc.) as a source of law have less legal force than the law (issued on the basis and in pursuance of laws). They are accepted executive agencies , and officials - The President, Chairman of the Government, ministers and other persons within their competence. The relationships between various by-laws are also built on the principle of hierarchy - taking into account their legal force: by-laws of lower government bodies (or persons) must comply with the acts of higher authorities .
The highest position in the hierarchy of by-laws as sources of law is occupied by decrees And orders President of the Russian Federation. They are binding throughout the country and must not contradict either the Constitution of the Russian Federation or federal laws. (“Why?” - you can answer this question yourself quite reasonably.)
The Government of the Russian Federation, as well as the governments of the constituent entities of the Federation, exercising executive power, issue regulations in the shape of resolutions , with the help of which they regulate economic, social and cultural relations. If these acts contradict the Constitution of the Russian Federation, federal laws or decrees of the President of the Russian Federation, then they are subject to... (We invite you to finish the phrase yourself.)
Ministries, state committees and other central departments, as executive authorities, strictly within the limits of their powers, issue instructions, resolutions, orders (orders) , regulating mainly relations within the relevant industry. These regulations may be repealed by the Government of the Russian Federation.
The presidents of the republics within the Russian Federation, as well as governors, mayors, heads of administration of its other constituent entities, adopt normative acts of various names - decrees, orders, resolutions etc. Normative acts are also issued by local governments, usually in the form solutions . It is clear that they should not contradict the regulations of higher authorities.
According to the Constitution of the Russian Federation subjects of the Russian Federation publish its regulations (laws and by-laws; in addition, republics have their own constitutions, and other subjects of the Federation have charters). Articles 71-76 of the Constitution strictly delimit procedure and limits of validity of general federal normative legal acts and normative legal acts of constituent entities of the Russian Federation (delimit competencies) . The scope of action of general federal regulations is the entire territory of the country. The scope of action of regulatory acts of a constituent entity of the Russian Federation is only the territory of a constituent entity of the Federation.
When familiarizing yourself with the contents of these articles, you will come across the term “subjects of reference”. Under subjects of reference refers to those spheres of public life, sectors of the national economy and socio-cultural life that are within the competence of one or another government - federal or subject of the Russian Federation. The Constitution clearly indicates what exactly is under the jurisdiction of the Russian Federation and what is under the jurisdiction of its subjects. For this purpose, all subjects of knowledge are divided into three types. Let's look at them.
Exist subjects of jurisdiction of the Russian Federation. These include those spheres of public life, economic sectors, etc., which are regulated exclusively by the federal government (see Article 71). For subjects of jurisdiction of the Russian Federation, accepted federal regulations. Regulatory acts of the constituent entities of the Russian Federation cannot contradict them.
Eat subjects of joint jurisdiction of the Russian Federation and a constituent entity of the Russian Federation. The very meaning of the wording suggests that there are issues that are resolved jointly by the federal government and the authorities of the constituent entities of the Russian Federation (for more details, see Article 72). On subjects of joint jurisdiction they are published federal regulations and legal acts subjects of the Russian Federation . It is clear that the latter should not contradict the former.
Along with this, outside the jurisdiction of the Russian Federation, as well as joint jurisdiction subjects of the Russian Federation carry out own legal regulation: within the limits of their competence, issue their own regulations. Moreover, in case contradictions between federal law and a regulatory legal act of a constituent entity of the Russian Federation regulatory legal act of a constituent entity of the Russian Federation (Part 6, Art. 76). So, for example, if any subject of the Russian Federation, within the limits of its competence, issues a regulatory legal act (say, on the organization of a museum of national art), then the federal regulatory legal act cannot repeal it, since this issue is not the subject of the jurisdiction of the Russian Federation. However - please note - not a single normative act of a constituent entity of the Russian Federation can contradict the Constitution of the Russian Federation.
EFFECT OF REGULATIVE AND LEGAL ACTS IN TIME, SPACE AND ACROSS PERSONS
All normative acts have temporal, spatial and subjective limits (borders, framework) of their action. The establishment of such limits is extremely important (especially in practical terms), since it determines the specific possibilities for applying the legal norms contained in regulations.
in time begins from the moment it enters into force, and terminates from the moment it loses legal force. The time frame for the validity of normative acts is enshrined in Article 6 of the Federal Law “On the procedure for publication and entry into force of federal constitutional laws, federal laws, and acts of the chambers of the Federal Assembly.” According to this article, the specified normative acts come into force simultaneously throughout the entire territory of the Russian Federation within 10 days after their official publication (unless the laws themselves or acts of the chambers establish a different procedure for their entry into force).
Regulatory legal acts terminate (lose force) as a result of the following three circumstances: 1) upon expiration , for which the act was adopted; 2) as a result direct cancellation - direct instructions from the competent state body to cancel the current act and 3) as a result indirect cancellation - in connection with the publication of a new act that replaced the previously valid one. The legal force of the previous act is lost from the moment the new act comes into force. Thus, with the adoption of the new Constitution of the Russian Federation on December 23, 1993, the former Constitution, adopted on April 12, 1978, simultaneously ceased to apply.
Effect of the normative legal act in space determined by the territory over which the authority of the body that issued the act extends. On the entire territory of Russia The Constitution of the Russian Federation and general federal legal acts apply (which we have already discussed). On territory of a subject of the Federation - the effect of acts of state authorities and administration of a subject of the Federation (but, of course, they cannot cancel or suspend the effect of general federal regulations).
Acts are also issued that are valid on a strictly defined basis. limited part of the territory , which is indicated in the regulatory legal act itself. These may be laws, as well as presidential decrees, government decrees relating to certain areas of our country (for example, the Far North, Far East, regions affected by the Chernobyl accident). Finally, acts are issued that are valid in a limited territory of an enterprise, institution, or organization.
The effect of the act on circle of people. On the territory of Russia, as a rule, the effect of regulatory legal acts applies to all its citizens, as well as foreigners, stateless persons (stateless persons) and persons with dual citizenship. At the same time, special regulations are issued that apply only to certain categories of citizens (for example, military personnel, pensioners, etc.).
It is important to note that all Russian citizens, no matter where they are, are obliged to comply with Russian laws. A Russian citizen who commits a crime on the territory of another state is liable according to the laws of his country, even if his act is not a crime on the territory of the country where it was committed.
Some employees of diplomatic, consular and other foreign government agencies occupy a special position on Russian territory. They use the so-called diplomatic immunity - a whole set of special rights and benefits that are established in accordance with international and national (domestic) law.
1) What are the characteristic features of the main sources of law? 2) What is the reason for the division of regulatory legal acts into different types? 3) How does natural law become a source of positive law? 4) What is the reason for the division of regulatory legal acts into different types? 5) Why do regulations have different legal force? 6) What is the meaning of the term “subject of reference”? 7) What laws are adopted on the subjects of jurisdiction of the Russian Federation and on subjects of joint jurisdiction? 8) Why are the relationships between various legal acts based on the principle of hierarchy? 9) What determines the need to establish temporal, spatial and subjective boundaries for the operation of normative acts?
1. Judicial precedent is especially common in England, the USA and a number of other countries. IN modern Russia proposals have been made to recognize case law. Give explanations for these facts.
2. In the relationship between the sources of law operating in the country, as you understand, a strict system of subordination is observed - subordination. Why is subordination necessary? What significance does it have for the development of law itself, as well as the social relations that it regulates? What consequences are possible if this system is deformed?
3. You have become acquainted with a number of sources of law that belong to the main group. Think about which of these sources has the greatest dynamism, is able to reflect the changing needs of people’s lives faster than others, and quickly respond to new situations that constantly arise in our reality. Explain your answer.
4. When, as a result of official recognition, natural law becomes an independent source of law, it occupies the highest place in the hierarchy of sources of law in force in the country. Why do you think? Give arguments that can prove the leading position of natural law.
“The subsequent law repeals the previous one.”
“No one can make laws for himself.”
Roman legal maxims
Tkachenko Georgy, 10th grade student
Many social processes and phenomena are connected with human rights today. They are studied and spoken about from the widest and most varied positions. Human rights find their presence in almost every area of human life. Human rights are a complex, multidimensional phenomenon. Target The student’s research work is to study how natural rights are enshrined in the legislation of the Russian Federation and what problems exist in their implementation in practice.
In accordance with the purpose and hypothesis of the study, the following were identified: tasks:
1. Study and analyze literature and Internet resources in order to find out what natural rights are. 2. Study and analyze the legal acts of the Russian Federation in order to consider how natural rights are legislated and how they are implemented in practice.
The work was submitted to the competition “We choose the future” as part of the project “Young Intellectuals of the Middle Urals”
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MCOU "SLOBODO - TURINSKAYA SCHOOL No. 2"
COMPETITION “WE CHOOSE THE FUTURE”
NATURAL LAW
SECURING NATURAL RIGHTS
IN THE LEGISLATION OF THE RF AND THEIR IMPLEMENTATION
RESEARCH PROJECT
10th grade student
MKOU "Slobodo - Turin Secondary School No. 2"
Head: Tatyana Zarovnyatnykh
Mikhailovna
Turinskaya Sloboda 2012
1.Introduction_________________________________________________3-7
2. Natural law_____________________________________________8-10
2.2 Consolidation of natural law in documents______________ 10-12
2.3.Implementation of natural law in the Russian Federation
2.3.1. Right to life________________________________________________12-15
2.3.2.Right to dignity of person and personal
Immunity__________________________________________16-17
2.3.3. Right to freedom________________________________________________18-21
2.3.4. Main methods of violating natural law____________21-23
3. Conclusion________________________________________________24-25
References________________________________________________26
INTRODUCTION
Formation of the legal culture of youth is one of the important government tasks. Only by respecting laws that preserve the centuries-old values of goodness and justice, protecting the rights and interests of everyone, can we build a new society. Legal culture is component culture of society, and a modern educated person should know its basics. What tomorrow's world will be like depends on today's schoolchildren, and therefore it is very important to remember the importance of legal knowledge and skills, which can be developed already at school. Studying law at school will be the true springboard that will help graduates achieve success in life in the future. This idea was expressed at one of the meetings by D. A. Medvedev, these words became the preamble to E. A. Pevtsova’s textbook. "Right. Fundamentals of legal culture".
Indeed, the more civilized a society becomes, the greater the role in life begins to be played by law as a set of generally binding rules of behavior that can ensure organization and order in relationships between people. Despite the fact that law was not always present in the life of society (primitive society did not know it), it is difficult to imagine what could have happened if people had lost this important system for regulating actions. Arbitrariness, chaos, and unrest can lead to irreversible consequences. History knows of cases where knowledge and skills in a certain area helped people realize their dreams and provide legal services to people.
Law is a complex social phenomenon. Understanding what it is is not so easy. Over the centuries, law has been understood in different ways. Defenders of the natural legal theory argued that there is a natural and positive law.
Many social processes and phenomena are connected with human rights today. They are studied and talked about from the widest and most varied positions. Human rights find their presence in almost every area of human life. Human rights are a complex, multidimensional phenomenon. And it comes from several obvious and understandable truths.
The first of them relates to the unique and inimitable value on earth - human life. Human life is valuable in itself; there is no and cannot be a value more valuable than human life. “Life should and can be a never-ending joy,” wrote L.N. Tolstoy; Sophocles famously said: “There are many great things in the world, but there is nothing greater than man.” Thus, from this simple truth follows the first claim of man - the value of human life.
The second truth is that every individual belongs to a community of people like him and equal to him. Of course, all people have their own temperament, differ in strength, dexterity, intelligence, wealth, financial situation, but they are all equal in their claims to the goods of life that may belong to them as members of a given society. Recognition of this situation leads to the recognition of the equality of citizens, to the statement that all people are equal in their rights and human dignity.
The third truth is the awareness of one’s body, which completely and undeniably belongs to the individual with its inherent advantages and disadvantages. Only he is the master of his body, he must take care of himself and his well-being. From here stems his natural and legitimate claim to the inviolability of his body, i.e. we can say that he has the right to bodily inviolability.
The fourth obvious truth is the natural possession of private property, which is necessary for everyone to maintain life and health. Everyone receives it most often from parents and relatives, and then multiplies it with their work.
From the above we can conclude: all of the above claims are necessary for normal life person. The right to life, equality, the right to bodily integrity, the right to private property belongs to a person from birth, that is, they are natural. They are natural due to their natural origin, not given by anyone, and therefore cannot be taken away.
Natural law- this is a set of values and ideals of people that cannot be taken away from them due to the fact that they are given by nature. But there are other rights - this is the system of legal norms that is sanctioned or established by the state and expressed in the form of laws and regulations, thispositive law.
In many states, serious contradictions arose between natural and positive law, which could lead (and did lead) to the violation of fundamental rights and freedoms of the individual.
The Constitution of the Russian Federation recognizes the rights and freedoms of man and citizen as “directly effective”, showing that all created legal rules should not contradict natural human rights.The Constitution of the Russian Federation proclaims “Russia to be a democratic state governed by the rule of law.” Thus, the main law outlines the goal of building a rule of law state in the Russian Federation. The moral basis for building such a state is the establishment in society of the principles of humanism, the priority of individual rights and freedoms, and respect for the rights of other people. A prerequisite for the formation of a rule of law state should be the creation of laws that proclaim the principles of equality and justice and reject the arbitrariness of state power. On the basis of these laws, the legal nature of the relationship between the state and citizens is established, their mutual rights and obligations are established. At the same time, the rights and freedoms of citizens are considered objective and inalienable, and their protection is one of the main responsibilities of the state. The consolidation and implementation of natural human rights contributes to the establishment of the rule of law in the Russian Federation, and this explains relevance the problem under consideration at work.
Planning to further connect my life with jurisprudence, I became interested in the topic of natural law and wanted to find out not only what it is, but also work with documents, find out where this right is recorded and how it is implemented in practice in our state.
The answers to these questions becamethe subject of my research.
Object of studyThese included regulatory legal acts, educational literature, public relations in the field of realization of natural human rights, a sociological survey conducted among high school students of our school, teachers and parents.
Research hypothesis:I assume that the implementation of natural rights in the Russian Federation is not carried out fully.
Purpose of the studyis to study how natural rights are enshrined in the legislation of the Russian Federation and what problems exist in their implementation in practice.
In accordance with the purpose and hypothesis of the study, the following were identified: tasks :
1. Study and analyze literature and Internet resources in order to find out what natural rights are and how they are implemented in practice.
2. Study and analyze legal acts in order to consider how natural rights are secured.
When solving the tasks I used the following methods:
1. Theoretical analysis of the Constitution of the Russian Federation, the Universal Declaration of Human Rights, legal acts, popular science literature.
2. Conducting an interview with Yuri Anatolyevich Tkachenko, an employee of the Slobodo-Turinsky District Department of Internal Affairs.
3. Comparison, comparison, systematization and generalization of the data obtained.
The results obtained during research activities are presented in the formtheoretical material, analysis of a social survey, practical situations, and corresponding conclusions, as well as multimedia presentations.
2. NATURAL LAW
Natural law is a concept in the theory of state and law that means a set of principles, rights and values dictated by the very nature of man and, therefore, independent of legislative recognition or non-recognition in a particular state. Natural human rights are rights inherent in the very nature of man, without which he cannot exist as a biosocio-spiritual being. These rights belong to him already by virtue of the fact that he is a man, by virtue of human nature. They are the essence of his nature, nature, which is why they are called natural.
The signs of natural law are considered to be belonging to a person from the moment of his birth; inalienability (inalienability) from a person; expression of the most significant social capabilities of a person,
According to natural law theory, a person is born with a natural right, which includes the right to life, liberty, dignity, integrity and private property. The state creates positive law in the form of laws. Natural law in relation to positive law is supreme, since it embodies justice, and the principle of positive law is expediency.
Of course, natural law is not a certain legal system that exists and operates alongside positive law, as some representatives of the doctrine believed in the past. It is a predominantly ideological phenomenon, reflecting ideas about justice, human rights, and other social values. But these ideas are formulated as legal requirements addressed to the current law and the legislator. Failure to comply with them should also entail legal consequences. “An unjust law does not create law” - this is the formula that comes from Cicero.
The practical implementation of such guidelines in judicial and law enforcement activities in general seems quite difficult. However, this does not diminish the importance of the problem. Natural law acted as a means against the use of the law by authorities for selfish purposes, against what was later called “offensive legislation.” The doctrine of natural law was the first to call attention to the fact that right and law may not coincide, and has always emphasized the possibility of this discrepancy with its dangerous consequences.
However, the greatest merit of the doctrine of natural law, its enduring significance, is the affirmation of the idea of inalienable rights of man and citizen; they are not given to a person by a good ruler or legislator, but belong to him from birth. One can come across a variety of justifications for this thesis, but with any interpretation, human rights are primary in relation to the current law, and state power is obliged to recognize them and provide them with constitutional and other guarantees. Law becomes not only a means of governance, but also a system of fundamental rights and freedoms of man and citizen.
The concept of “natural law” was born in opposition to positive law, established, resulting from human invention. It is a symbol of everything that is true in the legal sense, independent of chance and arbitrariness, corresponding to the eternal laws of justice.
The basis of the doctrine of natural law, as its understandable psychological premise, is an elementary simple, but at the same time scientifically extremely unclear idea: everything that is arbitrarily established is opposed to the involuntary, unestablished, which exists in itself and necessarily; the example of such properties is nature; therefore, unestablished law is natural or natural law.
Among the main list of natural rights, many lawyers identify such rights as the right to life, liberty, personal dignity and personal integrity as fundamental human values and place them above other rights. The remaining natural rights are so-called secondary rights, emanating from basic, primary rights, or included in the primary ones as their parts. For example, the right to health, the right to a healthy environment can be considered components of the right to life. Freedom of movement, freedom of thought are components of the generalized concept of freedom.
Among natural rights, the right to life occupies a special place. This “first right” is at the top of the natural legal pyramid, which is quite understandable - when life is taken, all other rights lose their meaning, since there is no bearer of these rights. The right to life is also secured by such international documents as the Universal Declaration of Human Rights and the Convention on the Rights of the Child and the fundamental law of our country - the Constitution of the Russian Federation.
The process of historical development, where the main, or one of the main, themes has always been the formation of a free individual, could not but influence people’s attitudes towards society and state power. It was often determined in direct proportion to where the person found reliable protection: in society or state. Gradually, the problem under consideration was generalized and appeared for some in the form of an opinion: civil society has the legal right to protect itself and its members from the state. For others, it was obvious that the state should not be deprived of a similar right.
The doctrine of the natural inalienable rights of man and citizen came to the fore whenever the question arose about the historical need for a transition from authoritarian-totalitarian regimes (alien to the concept of natural rights) to democratic transformations. This was the case at the turn of the 19th century, during the struggle of the peoples of France and the United States against absolutism, when from an ideological slogan the natural rights of man and citizen first became the letter of the law (Declaration of the Rights of Man and Citizen of 1789).
This was the case in the second half of the 20th century. after the bitter experiences of totalitarian regimes, when human and civil rights, trampled upon by these regimes, were recognized and guaranteed not only by individual states, but also at the international level (Universal Declaration of Human Rights 1948, European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 . and other international legal documents). Fundamental human rights and freedoms are inalienable and belong to everyone from birth (Constitution of the Russian Federation 1993, Part 2, Article 17).
2.2 Documents establishing natural law
Proponents of the natural-legal approach distinguish between natural and positive law. But at the same time, of course, they do not reject the latter, that is, the laws that the state adopts. The problem lies in the quality of the law: if it does not correspond to the values of natural law, then it cannot be considered legal.
In other words, if positive law is not based on natural law and does not proceed from its values, it ceases to be law. The highest value of law is a person, his natural, innate, and therefore inalienable rights. Consequently, natural law allows us to evaluate the quality (serve as a criterion) of positive law (law). It helps determine the extent to which the law respects a person’s interests, rights and freedoms. This is the meaning of distinguishing between the right to the natural and the positive. However, such a distinction is not absolute. In modern law there is a process of convergence (and quite naturally) of natural law with positive law.
Among natural rights, the right to life occupies a special place. This “first right” is at the top of the natural legal pyramid, which is quite understandable - when life is taken, all other rights lose their meaning, since there is no bearer of these rights. The right to life is also enshrined in such international documents as the Universal Declaration of Human Rights (Articles 2,3,4,5,9,12,17) and the Convention on the Rights of the Child (Articles 6,7,8,13,16,20,24 ), the Family Code of the Russian Federation (Articles 63,64), the Civil Code of the Russian Federation (Articles 150,151,152) and the fundamental law of our country - the Constitution of the Russian Federation. (Articles 20,21,22)
After the right to life, the right to freedom and personal integrity occupy one of the leading places in the system of personal constitutional rights and freedoms of a person. It is no coincidence that in Chapter II “Rights and freedoms of man and citizen” of the Constitution of the Russian Federation, these rights are established immediately after the right to life. Freedom of thought and speech, freedom of conscience, the right to move freely throughout the country, choosing a place of stay and residence, the right to freely seek, receive, transmit, produce and disseminate information in any legal way are guaranteed.
The state reserves the right to restrict freedom (to a greater or lesser extent) as a criminal punishment for a certain period or even for life, as well as to force individuals to perform constitutional duties, such as military duty.
The dignity of the individual is protected by the state, and according to the Constitution of the Russian Federation, the requirement of respect for the dignity of the individual is contradicted by torture, violence, other cruel or degrading treatment or punishment, as well as the conduct of medical, scientific or other experiments on a person without his consent.
The Convention on the Rights of the Child and the Family Code of the Russian Federation enshrines the child’s right to respect for his human dignity. This also includes ways of raising children, which must exclude neglectful, cruel, rude, and degrading treatment.
According to Art. 150 of the Civil Code of the Russian Federation, personal dignity, honor and good name, as well as other personal non-property rights belonging to citizens from birth or by force of law, are inalienable. A person has the right to protection of honor and dignity both before and after death. He has the right to demand in court a refutation of information discrediting his dignity, if the person who disseminated such information does not prove that it is true, and also to demand compensation for losses and moral damage caused by its dissemination.
Thus, natural rights are enshrined in both the Russian Constitution and the laws of the Russian Federation.
2.3. Realization of natural rights in the Russian Federation
2.3.1. The right to live.
Life is the biological existence of man as a living being, as well as the process of his social activities. The right to life is the primary, natural and inalienable human right. A person, having been born, with the first independent breath of air begins to live, realizing this natural right given to him by nature, regardless of what the legislative body may write about this, and in the future any person strives to live as long as possible. In this case, a person is no different from another animal being, since natural instincts come to the fore here, and the right to life can be called natural-biological. Human life is the physical existence of a person; the physical and psychological functioning of his body as a whole. In case of violation of any functions in the human body, the person does not cease to enjoy the right to life. From the point of view of law, his life does not lose its value, like the life of any other member of society.
To illustrate the relationship between natural and positive law (law), we can give an example of a court case, which one of the famous Russian legal scholars, S.S. Alekseev, writes about.
This happened in the taiga, where geologists worked. Coming out to the river one morning, geologist Petrov (surnames have been changed) heard the crackling of bushes on the opposite bank. He immediately thought of the bear. And it’s no coincidence that bears actually often disturbed the geologists’ camp. Without wasting time, Petrov rushed for the gun, and another geologist, Shirokov, joined him. Jumping ashore, they simultaneously shot at a black spot visible through the fog. Their guns were exactly the same, bought in the same store.
The ending of the story is tragic: on the other side they killed not a bear, but the head of a neighboring geological party, who was fiddling with fishing gear. During the trial, it turned out that the deceased was killed by only one bullet, and the second, hitting a rocket launcher cartridge lying in the victim’s pocket, flew to the side. It was impossible to determine whose bullet killed: both fired. But it was not a premeditated murder, although both were grossly careless, and the second bullet bounced off only by accident. Therefore, the court found them guilty. From the point of view of the current law, everything was correct. However, the Supreme Court overturned this decision. The judges reasoned: death occurred from only one bullet, which means that someone is obviously innocent. And here the judges showed a deep understanding of the very essence of law – law as justice. And justice demanded the release of the innocent. But who? Impossible to determine. Both were released.
But more often it happens that the right to life is violated consciously and deliberately.
In the early morning of May 15, 2011, masked people entered a private house on Saburova Street in Turinskaya Sloboda. At this time, in addition to the owner himself, his wife and children born in 2001 and 2009 were in the private house. Unknown masked men tied them all up with tape, searched the whole house and stole half a million rubles. The bandits beat the 37-year-old owner of the house in front of his family; he died from numerous beatings at the scene. The criminals have not been found.
A human being, developing, goes through a number of stages - from a fertilized cell to an individual. At what point does life begin in these stages? According to the most ancient Eastern tradition, a person’s age is counted from the moment of conception, and in Western civilization it was believed that life begins at birth. The natural scientific or physiological position linked the “beginning” of human life with the “beginning” of the functioning of one or another physiological system - heartbeat, pulmonary or brain activity. Recently, a position linking the beginning of human life with the moment of conception of a human fetus in the mother’s womb has become increasingly widespread among microgeneticists: already the very first cell - the zygote - is a unique personality and contains all the information about a person. It is then obvious that abortion at any stage of pregnancy is the intentional termination of a person's life. Throughout intrauterine development, the new human organism cannot be considered part of the mother's body. Firstly, hegenetically different from the mother. Secondly, the placenta does not grow into the wall of the uterus - there is a placental barrier that prevents most of the mother’s diseases from penetrating through it; infection of the child, as a rule, can only occur from the moment of birth. The mother's blood cannot penetrate inside the embryo; in its composition and group, in the genetics of each cell of its body, the embryo is different from the mother. The mother warms him, protects him, removes carbon dioxide and provides oxygen and the building blocks from which his proteins will be composed. But he will put them in each of his cells according to his own unique genetic program. HA few days after conception, the child develops the respiratory, nervous and digestive systems, and internal organs. After 18 days, the heart begins to beat; on day 21, its own circulatory system comes into operation. On the 40th day they are detected electrical impulses brain,and at 43 days it is already possible to take an encephalogram of the brain,at 8 weeks he begins to suck his finger, at 11 - 12 weeks he actively breathes in the amniotic fluid, etc.
At the Council of Europe Session on Bioethics in December 1996, scientists from various fields of science said that the latest scientific data indicate that an embryo is a human being already on the 15th day after conception. According to the latest data from embryology, human health is formed not from the moment of birth, but during the entire intrauterine period of life from the moment of conception.
In our country, in accordance with The fundamentals of the legislation of the Russian Federation on the protection of the health of citizens “artificial termination of pregnancy is carried out at the request of a woman with a pregnancy period of up to 12 weeks, for social reasons - with a pregnancy period of up to 22 weeks, and if there are medical indications and the woman’s consent - regardless of the period of pregnancy.” That is, it turns out that our law allows the killing of an embryo, thereby ending life.
According to the articles of the Constitution of the Russian Federation and the Declaration of the Rights and Freedoms of Man and Citizen, the right to life as a fundamental natural right arises in a person not from the moment of conception, but from the moment of birth. Based on the Constitution of the Russian Federation, the federal law “On Basic Guarantees of the Rights of the Child in the Russian Federation” was adopted, which also proclaims the rights and freedoms of the child from birth. These articles are not consistent with international law. From the international documents signed by Russia, attention should be paid to the Convention on the Rights of the Child, the preamble of which states that the states parties to the Convention must take into account that “the child, due to his physical and mental immaturity, needs appropriate legal protection, as before, and after birth." Thus, a child is not only a born human being, but also one who is still in the mother’s womb, but has not yet been born, and therefore is subject to all the rules relating to the rights and interests of children, including Art. . 6 of the Convention, by virtue of which every child has the right to life. In the meantime, the Russian Federation ranks 1st in the world in terms of the number of abortions.
In addition, Russia ranks 1st in the world in mortality from suicide among adolescents 15–19 years old, in mortality from diseases of the cardiovascular system, in the number of suicides among the elderly, in the number of plane crashes, road accidents (injuries, deaths), in intentional homicides; 2nd place in the world in the number of suicides (after Lithuania); 57th place in the world in quality of life, 65th place in standard of living, and 134th place in the world in life expectancy. And in terms of the overall mortality rate among 207 countries of the world, the Russian Federation ranks 182nd.
According to the Federal State Statistics Service, more than thirty-five million Russian citizens live below the poverty line, crime is growing (32 thousand murders are committed in Russia every year, about 20 thousand people die from grievous bodily harm, crime prevention has decreased by more than 40% ), every year about 40 thousand people die from drinking low-quality alcoholic beverages, unemployment (especially among young people under 35 years old), all this indicates a decline in the quality of life of Russians.
In accordance with the Constitution and the Criminal Code of the Russian Federation, the state reserves the right to deprive a person of life, applying to him the highest penalty for especially serious crimes - the death penalty. However, before a death sentence is imposed, the accused is given the right to have his case tried by a jury. Since 1996, there has been a moratorium on the death penalty in Russia. As a result of such a long moratorium on the use of the death penalty, stable guarantees of the right not to be subjected to the death penalty have been formed and a legitimate constitutional and legal regime has emerged, within which an irreversible process is taking place aimed at the abolition of the death penalty as an exceptional measure of punishment.
2.3.2. The right to personal dignity and personal integrity.
Man is not only a biological, but also a social being, and therefore he has corresponding natural social rights. Thus, the right to personal dignity arises and is formed as social relations develop, and a person receives this right from birth - no one can diminish his human dignity, which must be exercised in all spheres of life.
Protecting the dignity of a citizen’s personality is one of the manifestations of state provision of personal integrity.
Personal integrity is the prohibition, without the consent of a person, of actions related to touching his body, as well as those aimed at entering his home, viewing personal belongings, records, and invading other aspects of his personal life. This right is guaranteed by the Constitution to every person. Arrest, detention and detention are permitted only by court decision. Pending a court decision, a person cannot be detained for more than 48 hours.
The dignity of an individual is its state in the social environment, which is characterized by self-respect of the individual and the violation of which gives rise to negative moral experiences, and in certain cases of law entails legal liability. This is a person’s moral self-esteem, a person’s assessment of his connection with society, the state and the law and his significance in this regard. In addition, human dignity is the recognition by society of the social value, uniqueness, uniqueness of the individual, of each specific individual.
The state's protection of personal dignity is expressed in the fact that it clearly defines the grounds and forms of restricting the inviolability of the personal life of citizens. Thus, a fair and legal demand of the investigator for the presentation of evidence, carried out in cases and procedures established by the criminal procedural law, cannot be considered as an infringement of personal dignity, as an insult.
To ensure respect for personal dignity, arbitrary, without legal grounds, interference by state bodies and officials in the private life of citizens and violation of the procedure for conducting procedural actions must be excluded. Humiliation of human dignity may result from rudeness and deception during interrogations and confrontations, publicity during unreasonable searches and the study of diaries and personal papers.
Illegal and unethical methods of inspection and examination can cause damage to the dignity of a citizen. Detention and arrest, inspection and seizure of correspondence carried out without sufficient grounds, humiliate human dignity, such as a situation I found a description of on the Internet. It happened to a woman in the Moscow metro: “I was stopped in the metro by a couple of policemen, a woman and a man. They asked for my passport. I am 33 years old, I am the mother of a family and I do not give the impression of any antisocial element. I was dressed usually, decently, not provocatively. I don't drink alcohol. I didn’t have my passport with me. They detained me and took me to a picket line near the metro, in response to all my questions and demands to explain what was happening, they were rude and said that I was a drug addict and now they would search me, and if I didn’t shut my mouth, they would leave me here for a day, until they find out my identity. Actually, the most outrageous thing is that there was also their senior man and a cell full of drug addicts and some other people at the picket. In front of everyone, they forced me to take off my jacket and took away my things. While my things, bag and jacket, were being searched by these two policemen, the woman, in front of everyone, lifted my T-shirt to my very ears, and began to conduct a personal search for the presence of narcotic drugs. I was not being rude, I was just trying to call them to common sense and conscience, in response they again told me to shut up, but now they began to scare me with some kind of hospital, where they would certainly send me for tests if I did not stand quietly. As a result, after 40 minutes they finally released me, but during their search a thousand dollar bill disappeared from my wallet... Actually, it’s insulting and disgusting.”
Another example: resident of Turinskaya Sloboda - citizenBlum A.E., while intoxicated, came to the house where citizen V.N. Zarovnyatnykh lived. Having entered the house against the will of the owner, he took out the home theater and disposed of it at his own discretion.
Another example about violation of the right to personal dignity and personal integrity. Traffic police officers also break the law. On the Internet I found a video recording of the events that occurred in September 2010 on the M52 highway. The car was driving in the direction of Novosibirsk, 61 km. A traffic police officer stopped her and said “we drove into the oncoming lane. There are no markings on the road. In our opinion (there were 4 people in the car), we did not drive into the oncoming lane. The employee confiscated the license and issued a summons to the court of the city of Iskitim. We insisted that the court be at our place of residence (in Novosibirsk), he refused us, and when asked: “Why?”, he answered: “Because.” I recorded this conversation on video. The employee refused to introduce himself, I leaned over to take a video of his badge number, and he hit me in the face with his hand. All this was recorded on video. The employee also insulted me in a personal conversation and said that he only had a year left until retirement. After that, we went to the prosecutor’s office of the city of Iskitim and filed an application to initiate a criminal case. I also called television, where they were very interested in this video. Then “higher officials” started calling us, who wanted to resolve this issue peacefully (without the press, without the Internet).”
2.3.3. The right to freedom.
Freedom is the activity, behavior, actions of a person performed by him according to his desired choice, based on his own convictions, interests, needs, without coercion, life-threatening and other values that are most important for a person, in accordance with established rules of law. In a philosophical sense, freedom is understood as the inherent ability of man and social communities to act, to act as independent and independent sovereigns in accordance with their will, at their own discretion. Freedom is an indispensable condition for the formation, development, and realization of the individual and society.
The right to freedom is one of the fundamental human rights. It includes the ability to do anything that does not violate the rights of other people and society as a whole. The right to freedom, in particular, includes a set of specific powers implemented in the personal sphere (freedom to choose where to stay, freedom of movement, sexual freedom, etc.). political (freedom of thought, freedom of speech, etc.), professional (freedom of labor, freedom of creativity, etc.) life.
However, what is written in the Constitution is not only not fulfilled, but the government itself sometimes violates these rights. Thus, on February 11, 2006, Decree of the President of the Russian Federation No. 90 was signed, according to which citizens are deprived of the right to know about industrial emissions and pollution, hazardous products, etc. Art. 39 of the Decree classifies “information disclosing the volumes of production or supply of strategic types of agricultural raw materials,” and Art. 45 – information “on the location and purpose of administrative management facilities.” A state secret is any “information disclosing production capacity, planned or actual data on the production, supply (in kind) of biological, medical or veterinary protection products.” In my opinion, this Decree is in conflict with Art. 29 of the Constitution of the Russian Federation, which guarantees the freedom to “seek, receive and disseminate information.”
Freedom of speech is also violated. No censorship procedures are prescribed anywhere, but the main media, and above all television, are one way or another controlled by the state. Attempts to prevent journalists from carrying out their professional activities are often accompanied by measures of physical coercion. Thus, on May 31, 2005, on the territory of the Moscow Kremlin, during an unauthorized protest by activists of the Red Youth Vanguard (AKM), employees of the Federal Security Service (FSO) and the police, in front of numerous tourists, beat three journalists who were present there as reporters: Irina Gordienko (Novaya Gazeta), Shagen Oganjanyan (New Izvestia) and Aidar Buribaev (Gazeta newspaper). “They threw us all, including journalists, onto the asphalt, began to kick us, and they hit me in the head several times. Then they took me to the Kitay-Gorod police station,” Shagen Ohanjanyan later reported. The beating of the Novye Izvestia correspondent was captured in footage shown on the evening of June 1 by NTV.
Out of 168 countries, the Russian Federation ranks 147th in terms of press freedom, 2nd in the world in the number of journalists killed over the past ten years (after Iraq). The International Committee “In Defense of Journalists” ranked the Russian Federation in fifth place in the ranking of countries in which the rights of journalists are violated the most. And the international non-governmental organization Reporters Without Borders, in its report on press freedom, placed Russia in 140th place on a list of 167 countries.
On November 25, 2010, another meeting of defrauded shareholders took place in Yekaterinburg. As told to the correspondentIA Regnum Chairman of the public movement “In defense of the rights of participants in housing construction in the Sverdlovsk region” Anna Krindach, it took place at 18:00 local time (16:00 Moscow time) and took place on the 1905 square. During the action, shareholders demanded the resignation of the deputy head of Yekaterinburg, Vladimir Kritsky, who is considered one of the culprits of their problems.
“In our opinion, the main culprits in the problem of defrauded equity holders in Yekaterinburg are Arkady Chernetsky (former mayor of the city) and Vladimir Kritsky. Control over the construction market of Yekaterinburg and the division of developers into friends and foes occurred long before the arrival of Misharin’s team. Which, of course, does not relieve responsibility from the regional authorities, but nevertheless, the situation in Ekaterinburg in shared construction became critical precisely thanks to the efforts of the former mayor and the current deputy head of construction,” says Krindach.
According to her, in the struggle for the resignation of an official, shareholders face pressure from the authorities. So, in early November, they placed 10 banners on the city streets demanding that Kritsky be fired, but a few days later they were dismantled, and now advertising agencies refuse to enter into new contracts with them for the placement of billboards.
According to shareholders, in Yekaterinburg there are more than 60 houses being built with the participation of citizens, the construction of which is frozen or significantly behind schedule. Meanwhile, as noted by the regional Ministry of Construction and Architecture, there are 16 problematic housing projects in the city. At the same time, as Vladimir Kolikov, partner of the Genesis law firm, notes, if the problem of defrauded shareholders - individuals - has received wide publicity, and therefore work is actively underway on the relevant legislation, then legal entities, finding themselves in a similar situation, remain poorly protected.
“Undoubtedly, legislation is being improved in terms of protecting legal entities that find themselves in a situation with an unscrupulous developer. For example, the bankruptcy law has now been supplemented with a paragraph according to which the court recognizes that the defrauded shareholder has a requirement for the transfer of premises or monetary compensation not only on the basis of an agreement, but also on other grounds. In turn, legislation is moving too slowly on this issue. For example, it would be correct to introduce increased requirements for the minimum amount of capital for developers in order to ensure the interests of creditors,” Kolikov believes.
People are not always allowed to freely express their thoughts not only in the press, but also at rallies.
2.3.4. Main methods of violating natural human rights
In Russia
Use of illegal methods of inquiry and investigation- today is commonplace. Beatings of detainees and torture of those under investigation are a well-known fact, but, thanks to the corporate solidarity of law enforcement agencies, it is difficult to prove. The prosecutor's office of any major Russian city annually receives hundreds of allegations of torture and beatings of Russian citizens by law enforcement officers. But, as a rule, “the facts are not confirmed,” and only in exceptional cases does the case come to court.
Still An area of particular concentration of human rights violations is the army.Despite the incessant public protests and frequent trials, the barbaric customs of old-timers bullying newcomers remain in the army, and many officers still exploit “hazing” in the interests of “maintaining discipline.”
Orphans in orphanages, the mentally ill in “psychiatric hospitals” (otherwise it is difficult to name most of these medical institutions), old people and disabled people in special boarding schools are subjected to humiliation and all kinds of hardships.Living behind checkpoints in meager government conditions, which in themselves are difficult and sometimes unbearable, the wards of these “charitable institutions” also suffer from abuse and rudeness on the part of unscrupulous staff. Many of these institutions have developed their own “hazing,” no less cruel than in the army; orphanages have their own “hazing.”
The most obvious, significant and hardest experienced by the majority of citizens areviolations of socio-economic rights designed to guarantee a decent standard of living for a person.According to all polls public opinion, according to the experience of human rights organizations, the greatest concern of citizens is caused by violations of rights in the field of labor, employment, social security (non-payment of wages, illegal dismissals, non-payment or refusal to provide pensions, benefits, benefits, etc.).
The most neglected area of human rights by the state is the rights that determine the quality of life: the right to education and health care.The powerless situation of patients, students and their parents is not even formulated as a problem by the relevant government bodies. No less an obstacle to the realization of these rights is the avalanche-like deterioration in the quality of educational and medical services, which is directly related to the impoverishment of public education and healthcare, with the corresponding “washing out” of the most qualified personnel and the decline of “professional morals.”
Seemingly solved in Russiaproblem of freedom of conscienceToday it takes on a new meaning. Becoming fashionable, formal and ritualistic, Orthodoxy is gradually turning into a state religion. Budget money is invested in construction Orthodox churches and celebration of religious holidays.
In accordance with the Constitution, one of the guarantees of freedom of conscience isright to alternative civil servicefor those citizens who, due to their convictions, cannot serve in the army. However, in most subjects of the Federation this right remains a fiction.
Constantly tested in Russia freedom of speech . Not being a profitable business (due to the low purchasing power of consumers - readers and viewers), most media are forced to sell themselves not for money to consumers and advertisers, but for political services to sponsors.
As a result, freedom of speech in Russia depends on the orders and whims of media owners, including state ones.
Despite the presence in Russian legislation of norms prohibiting restrictionscitizens' rights to freedom of movementand the triumph of freedom to travel abroad, some Russians still have serious problems with freedom of movement within the country.
These problems are primarily related to the institution of registration; formally abolished, but in fact continuing to restrict the freedom of citizens in the form of “registration”.
This is due to the fact that the implementation of many social rights of citizens is carried out by the relevant bodies and organizations, as a rule, at the place of residence, i.e. registration. The provision of medical care and payment for it by the state are closely tied to the “official” place of residence.
Almost every day, at the everyday level, most citizens face difficulties or the impossibility of obtaining one or another certificate from a house management or social security agency, familiarizing themselves with a court decision or a doctor’s opinion, or obtaining copies of documents that directly affect their rights and legitimate interests.
Conclusion
It is enough just to be born, and you are already endowed with such inalienable rights as the right to life, to freedom, to personal dignity, to personal integrity. Even if these rights were not enshrined in the Constitution of the Russian Federation, then every person would still have these rights from their very birth. However, their implementation would be difficult, while enshrining them in the Constitution strengthens the legal possibilities for the implementation of these natural rights, since, having taken the form of positive rights, they simultaneously receive the corresponding constitutional obligation of the state to guarantee the proclaimed rights of man and citizen. But guaranteeing rights does not mean that they will be realized.
Data obtained as a result of the studyconfirm my hypothesisresearch. Despite the fact that in modern Russia natural human rights have received state support, and the corresponding provisions are included in the Constitution of the Russian Federation, their implementation is not fully implemented. Today, these rights are being resolved in a context where the state has lost its position as the monopoly defender of human rights.
Numerous manifestations of violations of the rule of law lead to a loss of respect for both the law and government authorities, since there is a divergence of interests of society and the state, numerous facts of incompetence, self-interest and corruption not only of individual officials, but also of entire institutions in the system of government and management . How can law enforcement and other government agencies protect citizens and comply with laws if, according to Russian President Dmitry Medvedev, their activities are lax and directly linked to crime?
Human rights are always related to the rights of another person, social group, state, society as a whole, and therefore understanding the nature and scope of natural human rights ultimately depends on the person himself. In this sense, natural human rights are concrete historical rights, conditioned both by the level of socio-economic development of society and the level of humanistic development of a person, the level of development of his legal consciousness.
Legal nihilism, as well as the tendency towards the commercialization of legislation and the transfer of legislative protection of human rights to the background, the inability of the authorities led to the fact that there was a gap between what is written in the Constitution and what is happening in reality. Despite a large number of laws and other regulations, the necessary measures to familiarize the population with these vital documents are not being taken. Meanwhile, only knowledge of the law can contribute to the formation of an active position in defending one’s rights, countering bureaucratic arbitrariness, and gross violations of the rule of law and human rights.
It is necessary to improve the legal culture of the country's population,to form public legal consciousness through the media, continuedpress to develop the systemschool legal education, introducing the subject “Law” as compulsory in all grades 9–11.
And although modern Russian society is still far from achieving the ideals of the rule of law, it is impossible not to move in this direction. Overcoming various difficulties and obstacles, Russia will find its own image of a rule of law state, which will correspond to its history, traditions and culture and will allow the creation of a truly free democratic society in our country.
Research resultscan be used as material in lessons, clubs, electives in social studies, law and during class hours.
Bibliography:
1. Constitution of the Russian Federation 12.12.93. adopted by popular vote // Russian newspaper No. 237, December 1993.
2. Federal Law “On the Commissioner for Human Rights in the Russian Federation” dated February 26, 1997//Rossiyskaya Gazeta. -1997. - March 4.
3. Averkiev I.V. What do human rights look like in Russia and in the world? // Almanac “The Future of Human Rights in Russia”. Issue No. 1 pp. 2-3. http://www.pgpalata.ru/reshr/alm/01-06.shtml.
4. Alekseeva L. Women’s rights are violated in Russia // CIVITAS Civil Society Bulletin dated 03/08/2009.. http://vestnikcivitas.ru/news/574.
5. Baglay M.V. Constitutional law of the Russian Federation. - M.: NORMA-INFRA, 2005, pp. 191-192.
6. Bogolyubov L.N., Gorodetskaya N.I. etc. Social studies studies. For 11th grade students M.: Education, 2008-349p.
7. Universal Declaration of Human Rights M.: 1998
8. Civil Code of the Russian Federation M.: 2011
9. Dmitriev Yu.A., Zlatopolsky A.A. Citizen and power. - M., 2005, p.15.
10. Lukasheva E.A. General theory of human rights. - M.: NORM, 1996, p. 1-27.
11. Lazarev V.V. General theory of law and state. - M.: LAWYER, 1996, p. 399-400.
10. Personal rights and human freedoms in Russia http://in1.com.ua/article/9142/.
12 . Matuzov N.I., Malko A.V. Theory of Government and Rights. - M.: Lawyer, 2005, p.253.
13. Morshakova T.G. Constitutional Court of the Russian Federation/Resolutions. Definitions. 1992-1996 - M: New Lawyer, 1997, pp. 379-385.
14. Martyshkin O.V. Russian Constitution of 1993 and the formation of a new political system //State and Law. 1994, No. 10, p. 36.
15. About shareholders..http://Ekat.ru News online
16 Pevtsova E.A. Law: Fundamentals of legal culture. Textbook For 10th grade M.: LLC “Russian Word - RS” - 2006 - 176 p. https://accounts.google.com
Detailed solution paragraph § 19 in social studies for 10th grade students, authors L.N. Bogolyubov, Yu.I. Averyanov, A.V. Belyavsky 2015
Can your school textbook become a source of law?
A textbook cannot be a source of law.
Can natural law become a source of positive law?
Natural law can become a source of positive law. Positive law is built on natural human rights.
Why do regulations have different powers?
Legal norms contained in regulatory legal acts are reproduced, specified, supplemented, and sometimes abolished by legal norms contained in other sources of law.
Why is the constitution at the top of the hierarchy of normative acts?
This is a universal normative act of a constituent nature. The Constitution contains norms of the most general nature, which are detailed in other branches of law. Thus, the norms of other normative acts relate to constitutional norms as specific to general ones. By establishing the legal foundations and principles of other legal branches, the Constitution acts as a general normative basis for the legal system as a whole. The Constitution has supremacy and supreme legal force. In addition, it is distinguished by a special, complicated procedure for acceptance and change.
Can your class initiate legislation?
The class cannot take a legislative initiative. The circle of persons who have the right to legislative initiative is determined by national legislation, while the submission of a proposal to a legislative institution by such an entity entails the obligation to consider this proposal in accordance with the established procedure.
Additional material:
In Russia, the right of legislative initiative on the basis of Art. 104 of the Constitution of the Russian Federation, vested in the President, the Federation Council and its members, deputies of the State Duma, the Government, and legislative bodies of the constituent entities of the Russian Federation. In matters of their jurisdiction, this right also belongs to the highest judicial bodies of the country: the Constitutional and Supreme Court.
Questions and tasks for documents
1. What idea unites all the named documents?
All these documents are united by the idea of fundamental human rights and freedoms.
2. Name the source of law that serves as the basis for them.
Universal Declaration of Human Rights.
3. Indicate among those named a document that does not have the legal force of current (positive) law. Explain why.
Does not have legal force: The Basic Law of the Federal Republic of Germany (May 25, 1949) since the Federal Republic of Germany does not exist today.
Questions
Sources of law are officially established forms of external expression of the content of law, mandatory for everyone. In legal science, the forms by which the state will is elevated to a generally binding rank and becomes a legal norm are designated by the term “sources of law.”
Currently, the most well-known types of sources of law are: legal custom; regulatory legal act; legal precedent; contract of normative content; legal science (doctrines and ideas).
A regulatory legal act is an official document expressed in written form, adopted by competent government bodies and containing rules of law. First of all, this is an official document coming from the state. This means that every act contains and expresses the state will through it. From here, as you understand, a lot stems: its universal obligatory nature, its guarantee from the state, and, of course, the inevitability of compulsory sanctions against violators of legal norms enshrined in a normative act.
2. What types of regulations are divided into? How is the legal force of a normative act determined?
Regulatory acts are usually divided into two types: 1) laws; 2) by-laws. The basis for this classification is the legal force of the normative act.
And the legal force of an act is determined by which government agency issued it. More precisely, the position that a given government body occupies in the general system of law-making bodies of the country, or, as they say, its competence, the scope of its powers.
3. Describe the hierarchy of laws of the Russian Federation.
According to their significance, or, in other words, according to their position on the hierarchical ladder, laws are divided into three groups:
1) at the very top is the Constitution of the Russian Federation - the Basic Law: not a single normative act adopted in the country can contradict the Constitution of the Russian Federation, otherwise it has no legal force and is subject to repeal;
2) one step lower (i.e., they have less legal force) are federal constitutional laws that regulate issues related to the legal foundations of the state, political system, or, as they say, the subject matter of the Constitution of the Russian Federation, - the Law “On the State of Emergency”, the Law “On the Election of the President of the Russian Federation”, the Law “On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation”, the Law “On the Government of the Russian Federation”, etc. These the issues are already covered in the Constitution of the Russian Federation (for example, Chapters 4, 5), but in general terms; Constitutional laws help make this deeper and more detailed.
3) the third group - current (or ordinary) federal laws that regulate the entire mass of other important aspects of social relations. These are, for example, the Civil Code of the Russian Federation, the Labor Code of the Russian Federation, the Criminal Code of the Russian Federation, the Law “On Joint Stock Companies”, etc. Current federal laws should not contradict the two previous types - the Constitution of the Russian Federation and constitutional federal laws.
4. Explain the meaning of the term “subject of reference.” What laws are adopted on the subjects of jurisdiction of the Russian Federation and on subjects of joint jurisdiction?
Subjects of jurisdiction mean those spheres of public life, sectors of the national economy and socio-cultural life that are at the disposal of one or another government - the federal or a constituent entity of the Russian Federation. The Constitution clearly indicates what exactly is under the jurisdiction of the Russian Federation and what is under the jurisdiction of its subjects. For this purpose, all subjects of knowledge are divided into three types:
1) there are subjects under the jurisdiction of the Russian Federation. These include those spheres of public life and economic sectors that are regulated by the federal government. Federal constitutional laws and federal laws are adopted on subjects within the jurisdiction of the Russian Federation. The laws of the constituent entities of the Russian Federation cannot contradict them;
2) there are subjects under the joint jurisdiction of the Russian Federation and a subject of the Russian Federation. On subjects of joint jurisdiction, federal laws and laws of the constituent entities of the Russian Federation are published. It is clear that the laws of the constituent entities of the Russian Federation cannot contradict federal laws adopted on subjects of joint jurisdiction;
3) finally, outside the jurisdiction of the Russian Federation, as well as joint jurisdiction, the subjects of the Russian Federation carry out their own legal regulation - they adopt their own laws (or by-laws).
5. What is a by-law? What is the hierarchy of by-laws?
A by-law is a legal act of a government body that has a lower legal force than a law.
The highest position in the hierarchy of by-laws as sources of law is, of course, occupied by decrees and orders of the President of the Russian Federation. They define the main directions of the country's domestic and foreign policy.
The presidents of the republics within the Russian Federation, as well as governors, mayors, heads of administrations of its other constituent entities, adopt normative acts of various types - decrees, orders, resolutions, etc.
The Government of the Russian Federation, as well as the governments of the constituent entities of the Federation, exercising executive power, issue normative acts in the form of resolutions, with the help of which they manage economic and socio-cultural life.
Ministries, federal services, agencies and other central departments, as executive authorities, strictly within the limits of their powers, issue instructions and regulations that mainly regulate relations within the relevant industry. These regulations may be repealed by the Government of the Russian Federation.
6. Describe the position of the Constitution of the Russian Federation in the hierarchy of normative acts.
The Constitution occupies the highest position in the hierarchy of normative acts primarily because it has the highest legal force throughout Russia. Our Constitution received its power directly from the hands of the people, since it was adopted by popular vote (December 12, 1993).
7. What are the main objectives of the Constitution as the main source of law?
The tasks that the Constitution solves as the main source of law cannot be solved by any other normative act. It consolidates: 1) the foundations of the constitutional system (the highest values and the system of political, economic, social relations); 2) rights and freedoms of citizens; 3) federal structure; 4) organization higher authorities authorities.
All other laws and by-laws must be adopted and issued only in accordance with the Basic Law; they cannot contradict it. The Basic Law serves as the highest standard of behavior for citizens, public associations, all government bodies and officials.
8. What are the main stages of creating a law?
The first stage is called legislative initiative. We are talking about the right to introduce a bill to the State Duma. Let us emphasize that the bill is submitted only to the State Duma. Thus, the Constitution delineates the competence of the chambers: the process of adopting a law is within the competence of the lower house (State Duma), and the right to approve or reject the law is given to the upper house (Federation Council).
The second stage is the discussion of the bill in the State Duma. It is carried out in stages: first preliminary (informal) and then formal discussion. The preliminary discussion is called parliamentary hearings, when, along with the opinions of parliamentarians, the opinions of government and public figures, as well as expert specialists (lawyers, political scientists, economists, sociologists, etc.) are heard. Their comments and suggestions help to achieve high quality of the future law. Official discussions in the State Duma, according to the regulations, are held three times, as they say, in three readings. During the first reading, the main, fundamental provisions of the bill are worked out (at the same time, it can be rejected or approved). The second reading can be called the most meticulous and thorough: there is a detailed article-by-article examination of the draft as a whole, the necessary amendments are made (and at this stage the bill can be rejected or approved). The third reading concludes the discussion of the bill in the lower house of parliament. During this reading, deputies cannot make any amendments; they make an unambiguous decision - to approve or not to approve the bill (by the way, it happens that a bill can be adopted in three readings at once).
The third stage is the adoption of the law in the State Duma. Depending on the type of law, there are differences in the adoption procedure. To pass an ordinary federal law, a simple majority of votes from the total number of deputies is required (50% plus 1 vote of the total number of 450 deputies). A federal constitutional law is adopted only if it is approved by the so-called qualified majority (at least two-thirds of the votes).
The fourth stage is the approval of the law in the Federation Council. A law adopted in the State Duma goes to the Federation Council, where it must be considered, approved or rejected within 14 days. Only federal laws adopted by the State Duma on issues listed in Article 106 of the Constitution of the Russian Federation are subject to mandatory consideration here. And then the voting procedure is structured as follows: an ordinary federal law is considered approved if more than half of the deputies vote for it; At least three quarters of the total number of deputies of the upper house must vote for the approval of a federal constitutional law.
The fifth stage is the signing and promulgation of the law. A federal law adopted by parliament is sent to the President of the Russian Federation. Within 14 days, he must review and sign it (or return it for reconsideration). The law signed by the President must be made public. The purpose of the promulgation is to bring the content of the new law to the attention of the population through publication in official publications - “Rossiyskaya Gazeta”, “Parliamentary Gazette”, “Collection of Legislation of the Russian Federation” and an Internet resource. Only the published law comes into force.
Tasks
1. The right of judges (judicial precedent) is especially widespread in England and the USA. In Soviet times, we denied it altogether. Now it is recognized, but it is still not widespread. Give your explanations for these facts.
Judicial precedent is a decision of a certain court in a specific case that has the force of a source of law (that is, establishing, changing or repealing legal norms).
In Russia, each judge can interpret this or that situation in his own way and this, in my opinion, is due to imperfection legislative framework. Many laws are interpreted ambiguously.
2. In the relationship between the sources of law operating in the country, as you understand, a strict system of subordination is observed - subordination. Think about why it is necessary. What significance does subordination have for the development of law itself, as well as social relations?
Because it helps to strengthen discipline and order. And these things contribute to more efficient, coordinated operation of the entire system. This helps to avoid legal conflicts (conflicts in law). In case of deformation (violation or damage), this will lead to a conflict in law and to unrest in society, i.e. to chaos.
3. You have become acquainted with a number of sources of law that belong to the main group. Think about which of these sources has the greatest dynamism and is able to respond faster than others to new situations that constantly arise in our reality. Why?
My opinion is that by-laws have the greatest dynamism. This is due to the relatively simple procedure for accepting them. At the same time, they are of a generally binding nature (within the framework of the industry in which they are adopted), and their implementation is ensured by the coercive force of the state. Plus, the main task of by-laws is to interpret the procedure for applying laws, which also reflects their dynamism.
4. As a result of official recognition, natural law becomes an independent legal source, occupying the highest place in the hierarchy of sources of law in force in the country. Give arguments that can prove the leading position of natural law.
Natural law constitutes the main part of positive law, as an example: a normative legal act, the Constitution. These are all sources of law; they enshrine natural law.