The ratio of law and law. The concept, principles, structure and functions of law and law
Law is a universal modern regulator of public relations. Despite the fact that today every schoolchild is familiar with the rule of law, it did not always exist. Just a few centuries ago, regulators of public opinion were religion and violence, but both of these constructs were not justified. Violence operates only under the leadership of a strong leader, and religion extends only to believers.
Legal norms are enshrined in the Constitution, and the relationship between law and law is regulated by the state. But not all scientists consider the law a universal regulator. Today we will try to make out how these two concepts correlate and how they affect society.
Right is ...
The right is a system of norms developed by society for self-regulation. In contrast to the moral, the rules of law are enshrined in the Constitution, and their inviolability is protected by the state.For violation of the law, a citizen is subject to sanctions in the form of restriction of freedom or a fine. We know this even from school, for a complete understanding it is necessary to dig deeper.
Society is a relationship between different social groups. Often, differences are born here that can turn into extensive conflicts. To prevent this from happening, society invented the concept of law to regulate its own behavior and the state, which monitors compliance with it. Thus, in a more specific sense, law is a code of conduct that establishes the boundaries of the freedom of each person, regulates coordination and struggle with each other, protects the interests of each citizen.
For example, only 200 years ago, duels were widespread as a means of protecting their interests in the highest circles (although prohibited by law). Today, everyone understands that grabbing a weapon when verbal abuse is too stupid, because there is art. 151 of the Civil Code on compensation for non-pecuniary damage. This law excludes lynching and objectively assesses whether the insult was or the plaintiff is too impressionable person.
Meanings of right
Today there are several meanings of right. Most often, it is described as a written, fixed system of norms, which is under state protection. In this sense, the law coincides with the law and is called positive law.
But the law created the state, it is worth remembering. Some scientists believe that the law has always existed, in particular the right to life, work, freedom of thought, etc. The state has not created them, it only supports and protects. Such rights are called natural.
In addition, the ability of the subject to any action enshrined in the law - this is also a right. For example, the right to be elected to a state body, the right to own movable and immovable property is called subjective.
Finally, a combination of all the above meanings of law is a right in a broad sense.
Forms of law
The existence of the right to paper does not give its 100% integration into society. In order for it to become a legal legal law, it needs to be given a certain form.
- Legal custom. Formation spontaneous, over many generations. The state only fixes these norms on paper.For example, "Russian Truth" (XI-XII centuries).
- Precedent. A court decision on a particular issue is recognized as a benchmark for such cases. It is worth noting that the court itself creates the rule of law. However, the precedent is not common in all countries.
- Regulatory agreement. The mutual agreement of the subjects, determining the rights of each. For example, contracts between states, enterprises, between an employee and a boss.
- Regulatory legal act. The document created by the competent state authorities in the matter of law.
The latter form of law shows the relationship between law and law, gathering in itself all the previous cases.
Law and Law: General and Differences
In law and law, the general is that the first depends on the second. Laws are adopted on the basis of legal norms and cannot violate them. For example, it is impossible to pass a law prohibiting the printing of any works, for example, “Sherlock Holmes Notes”, because it violates the rights of citizens of a country.
But it's not always that simple. If the right is absolutely inviolable, then the law may reflect political arbitrariness and, theoretically, the same “Notes” may be prohibited, and if society does not respond to arbitrariness, then the law will enter into force and infringe upon the rights of people.
Structure of legislation
The following sources are considered official sources of legal norms:
- Laws and regulations.
- Orders of the President of the Russian Federation.
- Decisions of the Government of the Russian Federation.
- Departmental acts.
- Acts of local government.
- Intra-organizational orders, orders.
Laws, including the Constitution - the main law, have the highest legal force in Russia.
Principles of Law
The concept of law includes not only an explanation of its functions, but also its own hierarchy, as well as legislation. Principles of law are ideas that lie at the beginning of any legal act, such as humanity, kindness, justice, etc. These principles can be enshrined in the relevant legal documents, but can also flow from what has been said as self-evident.
- General legal principles are fundamental, unshakable. For example, justice, democracy, legality, legal equality of citizens before the law, etc.
- Industry principles - enshrined in one of the codes of the Russian Federation. For example, freedom of labor (labor law), universal protection of civil rights (civil code), etc.
- Inter-industry principles - enshrined in several codes of the Russian Federation.For example, the inevitability of responsibility (criminal, civil, administrative codes), equality of parties (civil and family law), presumption of innocence (criminal, civil, administrative code).
General legal principles are implicitly enshrined in each code and govern their legitimacy. In Art. 6 of the Civil Code of the Russian Federation speaks of the right to a fair and conscientious court if there are gaps in the legislation on this issue. The main principle of law: the right and the law are not the same thing - it is enshrined in the legislation.
General Legal Principles
Let us consider in more detail the general legal principles on which all laws are based:
- Justice - when regulating relationships, emphasis is placed on the need to foster a particular behavior. The act is assessed from the point of view of the morality of the majority, and the punishment corresponds to the nature of the crime.
- Democracy - the opportunity for broad sections of the population to participate in the political life of the country: the election of deputies and presidents, the discussion of regulations, etc.
- Humanism - such relations between the state and the individual are encouraged, which are based on philanthropy and providing everyone with normal conditions for self-realization, the priority of rights and freedoms is set (Article 21 of the Constitution).Humanism in the broad sense is a careful attitude not only to people, but also to the animal world.
- Equality - a derivative of humanism, legislative consolidation of equal rights for all citizens, regardless of nationality, gender, religion, official or social status.
- The unity of rights and obligations - you can rephrase as "there are no rights without obligations and obligations without rights". The principle is used to coordinate the actions of each individual.
- Legality - all subjects of social interactions (state bodies, private companies and organizations) must comply with laws and regulations during the commission of any actions.
The problem of public relations to the law
Despite all clarity, there are problems of the relationship between law and law, especially in the modern world. The famous jurist Shershenevich considered the state the source of all the norms of law, their creator. But it is known from the structure of the emergence of laws that they can be non-legal in nature, that is, be formally the right and reflect the arbitrariness of the state. The most vivid examples from history are: repressions on a national basis, infringement of the freedom of peasants in the Catherine's epoch. Today, the laws and rights of the Russian Federation are exempted from such vivid examples.
Contemporary Lawyer V.S.Nersesyants believes that only a legal law can be taken for a right, that is, the norms of modern legislation are legal only because they formally express the principle of the formal freedom of individuals and equality.
Today it is obvious that the concept of law and the state itself are independent derivatives of social development in the sense that the state is not a source of law.
The process of law formation does not depend on the state, but goes on in the depths of society, is supervised and fixed by it in the form of stable relationships and norms of behavior. The task of the state is to identify these norms, evaluate them from the point of view of justice and fix them in law. Only in this way in the modern world does the relationship between law and law appear.
And one more statement of lawyers: rights cannot exist outside of their form (law). Only the law can fix legal norms, not morally.
The essence of the problem
The most accurate description of the relationship between law and law is possible with such a phrase “the society creates the law, the state - the law”. To summarize:
- law and law are not the same thing;
- the law may be non-legal in nature;
- right cannot exist outside the law, the law is a form of law.
Rules of law and law
The relationship between the rule of law and the rule of law (article) is not identical. The same legal aspect can be stated in a number of articles, or in one act (law) the principles of several legal aspects can be stated.
There are three ways to correlate law and law:
- Direct - the legal norm is expressly stated in the article of the law.
- Reference - the article of the regulatory act refers to another article, without listing the rule of law, for example, art. 139 of the Criminal Code "On the inviolability of the home" implies a violation of Art. 23 of the Constitution "On privacy".
- Blanket - the article refers to a number of other regulatory acts, and not to one, for example, art. 208 of the Criminal Code "On Illegal Arms" refers to the Federal Law "On Arms".
There are some nuances in the definition of law and law, for example, the possibility of the appearance of a non-legal law. So that such cases are not approved in the states, one of the organs of the UN General Assembly (International Law Commission) holds conferences and elects 34 lawyers with international practice from each region (including Russia) to settle international relations.
In the international environment there is no legislative body, like the Council of Federations and the State Duma in Russia. Participation in lawmaking are international organizations. They prepare projects that are being finalized by the Commission itself and adopted at intergovernmental conferences.
Most often, such projects are not binding, rather, they act as recommendations for managing the state. In the legal sphere, such acts are called “soft law”.
Customary law rules appear from the rules of conduct recognized by the majority as correct. For the settlement of international law is used the doctrine of law and the International Court of Justice. Codification of international law is an important term reflecting the process of creating norms of international law.
Right as a system
In a narrower sense, law can be characterized in these words: unity, ability to divide, objectivity, distinction, materialization, consistency.
The unity of legal norms is determined by the unity of the state will in the laws, the legal system, the mechanism for regulating law and the ultimate goal - the establishment of justice.This is a broader form of equality and legitimacy.
Objectivity is reflected in the international systematization of law. At the level of a single state, law is always subjective and is reflected in the will of the authorities.
The distinction is expressed in the specific content, the spheres of influence of a certain aspect of law and methods of regulating violations, sanctions.
Materialization or systematization is the need to structure the law in the form of laws and bylaws, streamlining the law for ease of use. However, for example, in the UK the law is not systematized in the form of legislation, but this does not mean that it does not exist. Systematization also shows what elements the law consists of: norm, industry, sub-branch, institution, sub-institution.
Thus, law is a broad concept that can be viewed from different angles. In fact, it is structured in the form of a law or a by-law act, and all laws together describe the rule of law. The state does not create rules of law, but only fixes them in draft laws and monitors compliance with all aspects. Both the state and the right are products of a society striving for self-regulation.