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Lecture notes, cheat sheets
Theory of Government and Rights. Lecture notes: briefly, the most important
Directory / Lecture notes, cheat sheets Table of contents
Section one. Theory of state and law as a science and academic discipline Chapter 1. The subject of the theory of state and law 1. Theory of state and law - fundamental science The problems of the origin, nature, essence of the state and law, their functioning, role and significance in the life of society, state-legal reality and trends in its development, political and legal processes and their reflection in the minds of people are among the most complex and key. The theoretical understanding of these problems is an objective need and a necessary condition for the scientific management of social processes. Life itself put forward the theory of state and law among the fundamental sciences. Now its humanistic and cultural-creative mission has come to the fore, which is most clearly manifested in meeting the spiritual needs of people, in ensuring the rights and freedoms of man and citizen. At the turn of two millennia, complex, contradictory and profound changes and transformations are taking place in the world. The above applies primarily to the former socialist countries, where there is a transition from a command-administrative to a market economy, where a civil society and the rule of law are gradually being formed. Such transformations require adequate changes in public administration and legal regulation. At the same time, our reformed society has already encountered the products of its own life activity, the results of perestroika and reforms. The widespread use of the "trial and error" method in the ongoing transformations, thoughtless borrowing of foreign recipes, ignoring their own historical traditions, socio-cultural heritage and national interests, radicalism and arrogance of the reformers interrupted the evolutionary development of society, turned into deep and multifaceted negative consequences that called into question and perestroika, and reforms. It is possible to overcome the growth of destructive processes by combining the strategy and tactics of reforms with science, with scientific and responsible public administration and legal regulation. Under the influence of the noted contradictory transformations in the Russian public consciousness, on the one hand, value-ideological attitudes and social guidelines were eroded, on the other hand, numerous dogmas and stereotypes were destroyed, and state-legal views and teachings were revised. In addition, during the transition period, social relations, state bodies and current legislation change relatively quickly. All this poses difficult problems for the theory of state and law. It itself must continuously develop, absorb the latest world scientific achievements about the state and law, develop conclusions and recommendations adequate to the realities of life. In our time, the theory of state and law is becoming more democratic than in past years, open to the perception of both the classical heritage of the past and the latest ideas (regardless of how and where they appeared). It pays more and more attention to the material and spiritual needs of man, his dignity, legal and political outlook, rights and freedoms of man and citizen. With the perception of the ideas of the rule of law, the humanistic content of the modern doctrine of the state and law has been significantly enriched. Any theory, that is, a system of ideas, concepts, judgments, acquires the status of a science when it rises to the development of generalized and reliable objective knowledge about certain processes and phenomena of reality, offers a system of methods, techniques (mechanism) for using this knowledge in social practice. Science includes the creative activity of scientists to obtain true knowledge, as well as the entire amount of available knowledge as a result of scientific production. Unlike other types of activity, science provides an increment of knowledge, opens up new horizons in the relevant field, and thus stimulates any other activity. The theory of state and law as a science aims to obtain, update and deepen generalized, reliable knowledge about the state and law, seeks to know the stable, deep connections of state-legal life that determine its historical movement. 2. The science of state and law and social practice The state and law, their multifaceted and active functioning are the essence of socio-political real practice, and not ideas and concepts. Moreover, this is a reality that all social forces are forced to reckon with, regardless of their socio-political orientation. Economy, social sphere, scientific and technological progress, national defense, environmental protection, ensuring public order - this is not a complete list of the most important objects of practical activity of the state and legal regulation. State-legal reality, political and legal processes are among the most complex and important public spheres, on which the life of society as a whole largely depends. Their scientific understanding is not only an objective need of society, but also a difficult task. The theory of state and law studies in a generalized form a great variety of states and systems of law - from those that existed in the distant and not too distant past to those that currently exist. And if science did not study and generalize this gigantic historical experience, then state legal practice would either forever stagnate in one place or be discarded, because people would forget the valuable experience and achievements of past generations. Even today, ignoring science in state-legal construction gives rise to a lot of negative consequences. By studying and summarizing practice, the theory of state and law formulates concepts and definitions of state-legal phenomena, develops scientific recommendations and conclusions, generates new ideas that allow not only to understand the essence, content and forms of state and law, but also to skillfully use them for the purposes of progressive development society. At the same time, the vitality and social significance of the theory of state and law is largely determined by its connection with social practice, the ability to meet the needs of the latter. Legal practice, the experience of the functioning of states, countless facts of state-legal reality serve as an inexhaustible source for the development of the doctrine of the state and law. Practice also determines the goals of the study of the state and law, i.e., the knowledge of state-legal phenomena is carried out so that the practice itself develops on a scientific basis. "There is nothing more practical than a good theory," says a very popular slogan in the age of scientific and technological progress. Finally, practice serves as a criterion for the truth of scientific knowledge. "The question of whether human thinking has objective truth is not at all a question of theory, but a practical question. In practice, a person must prove the truth ... of his thinking" Modern practice makes high demands on the quality and validity of scientific developments. Life itself puts forward new objects of knowledge, rejects obsolete ones. The traditional problems of the theory of state and law are supplemented by new areas of research, often leading into the sphere of other branches of scientific knowledge. This is how the integration of various sciences gradually develops, complex research appears, fruitfully influencing the progress of science as a whole. 3. Characteristics of the subject of the theory of state and law Each science has its own subject of study, which is understood as the side of objective reality studied by it. In other words, the subject of science is those phenomena and processes of the real world that are studied by it, to which scientific knowledge is directed. Science studies, first of all, the patterns of development of nature and society. In this sense, the subject of the theory of state and law is no exception. The theory of state and law studies the general patterns of the emergence, development, purpose and functioning of the state and law. It sort of singles out the state and law from the entire system of social phenomena and explores their internal patterns. But even in this case, the state and law are considered in connection with the economy, politics, morality, culture and other social phenomena. Moreover, the theory of state and law is interested not only in the socio-economic conditionality of state and legal phenomena, but also in the growing influence of the latter on the economy, social and spiritual life of society. The subject of the science of the theory of state and law is the multilateral and complex interaction of society and the state, the role and place of the state and law in the political system of society. It studies not only state-legal phenomena and processes, but also people's ideas about them. Its subject matter includes public, group and individual political and legal consciousness. The unity of the subject of the theory of state and law is determined by its practical and scientific-conceptual unity. State and law are inextricably linked with each other. That is why the theory of state and law is not an isolated branch of knowledge, but a single science. But remaining a holistic science, it is divided into two relatively independent structural parts: the theory of the state (state science) and the theory of law (jurisprudence). It is the noted unity and differentiation that make it possible to study the state in its legal design and legal consolidation, and law - in its state provision, guarantee, without interfering with an in-depth and detailed analysis of both the state and law. The sometimes allowed artificial separation of the theory of law from the theory of the state inevitably impoverishes both jurisprudence and state studies, making it difficult to understand them. All the more unacceptable is the opposition of the state and law to each other. In recent years, in our periodicals and scientific literature, under the pretext of fighting totalitarianism, attempts have been made to belittle the role and importance of the state in the life of modern society, dubious ideas have been expressed about the "unsuitability" of the very concept of the state. However, world experience shows that the state is such a socio-political institution, whose weakening immediately and negatively affects the rule of law, increases the sparseness of the legal space. So, the subject of the theory of state and law are such phenomena of social life as the state and law, the main laws of their emergence and development, their essence, purpose and functioning in society, as well as the features of political and legal consciousness and legal regulation. A special place in our science should be occupied by the doctrine of Russian statehood, its historical, national and cultural roots and traditions, the present and future of the Russian state and law. 4. Functions of the theory of state and law The theory of state and law as a fundamental science performs a number of important functions. The ontological function is the first and starting one. Ontology - the doctrine of being, which explores the foundations, principles of being, its structure, patterns. Performing an ontological function, the theory of state and law answers the questions of what the state and law are, how and why they arose, what they are at the present time, what is their fate, etc. epistemological function. Gnoseology, or the theory of knowledge, is aimed at studying the nature of knowledge, its relationship to reality, etc. The theory of state and law, developing theoretical constructions and techniques, thereby contributes to the development of legal knowledge. heuristic function. Heuristics is the art of finding truth, new discoveries. The theory of state and law is not limited to the knowledge and explanation of state-legal phenomena, but opens up new patterns in their development, in our time, in particular, in a market economy. methodological function. Being a fundamental science, the theory of state and law performs a methodological function in relation to the branch legal sciences, setting them a certain level, theoretical and logical integrity. Summarizing state legal practice, the theory of state and law formulates ideas and conclusions that are of fundamental importance for jurisprudence as a whole. Its categories, principles, ideas and conclusions serve as a kind of "strongholds", "bearing structures" of branch and special legal sciences. Political and managerial function. The state and law have always been and will be the focus of political struggle, sharp political discussions. The term "politics" in Greek means "the art of government". The crown of politics is the state power. That is why parties and political movements are so actively fighting for political power. Whoever owns the state power decides, in fact, all matters. This function is implemented through public administration. The theory of state and law is called upon to form the scientific foundations of both domestic and foreign state policy, to ensure the scientific nature of public administration. ideological function. Ideology is a system of fundamental (basic) ideas, concepts, views, in accordance with which the worldview and life position of an individual, social groups, and society as a whole are formed. Neither the individual, nor the state, nor society can do without basic integrating ideological attitudes and motives. It is no coincidence that periods of crisis in the life of society are usually accompanied by the loss of ideological guidelines, lack of spirituality and unrest. The theory of state and law accumulates and brings into the system ideas about the state and law, creates a scientific basis for the formation of social and individual political and legal culture. Thus, it affects public life, people's behavior not only through the state and law, but also directly, as an important ideological factor that influences the legal consciousness of subjects of law and thus the regulation of public life in general. Practical organizational function. The theory of state and law serves as a scientific basis for the functioning of the state and law, develops recommendations for solving numerous problems of state-legal construction, especially in today's difficult transition period. True, in this respect science owes a great debt to society. predictive function. Based on the recognition of the laws of development of the state and law, the analyzed science puts forward hypotheses about their future, the truth of which is then verified by practice. Scientific forecasting is of great importance for foresight in the state-legal sphere, it allows you to "look" into the future of statehood. Scientifically substantiated forecasts awaken thought, give confidence in actions even when they are not fully realized. The functions of the theory of state and law are interconnected and complement each other. Only taken in unity, in a system, they give a complete picture of the purpose of the theory of state and law. The achievements of state science and jurisprudence in the past are significant, their problems are relevant today, fruitful directions for further development are important. Chapter 2. Methods of the theory of state and law 1. The value of methodology in the knowledge of the state and law The term "method" was introduced into scientific circulation by the ancient Greeks. It is understood as a way of knowing, studying the phenomena of nature and social life. The most prominent scientists attached exceptional importance to the methods of cognition. So, F. Bacon compared the method with a lantern illuminating the path of a scientist, believing that even a lame man walking along the road with a lantern will outstrip the one who runs in the dark without a road. In other words, the fruitfulness of scientific research, the degree and depth of knowledge of reality largely depend on the methods used by researchers. The methods themselves are a product of human creative, intellectual activity, they are inextricably linked with the subject of study. The constant search for new research techniques, ways, methods provides an increase in scientific knowledge, a deepening of ideas about the patterns inherent in the subject. The theory of state and law is not a collection of ready-made truths, canons or dogmas. This is a constantly developing, living science, which is in continuous search. By updating and developing its methods of cognition, it is approaching the realization of its main purpose - to serve as a scientific guide to state legal practice. Thus, the methods of the theory of state and law are the techniques, methods, approaches that it uses to understand its subject and obtain scientific results. The doctrine of the methods of scientific knowledge is called methodology. The centuries-old world experience of state and legal development has brought to life numerous and diverse political and legal theories and doctrines. All of them are based on different methods, approaches and get far from the same conclusions and results: some theories reject the very possibility of knowing the essence of the state and law, others believe that the state and law arise and develop spontaneously, others argue that the state and law are created and improved. by the will of the people, etc. For many decades our science has been dominated by a monistic - Marxist-Leninist - approach to the study of state-legal phenomena. The Marxist-Leninist theory of state and law was recognized as the only true one, that is, correctly reflecting objective reality. All other theories and doctrines were considered (in one way or another) false and were criticized. This impoverished our doctrine of the state and law, did not allow us to fully use the world's achievements in political and legal culture. At the same time, any theory, using its own methods of cognition, brings grains of knowledge into the common treasury, allows a deeper and more complete understanding of certain aspects, facets of the studied phenomena. Today, perhaps the most acceptable for the theory of state and law is a constructive-critical approach to the evaluation and analysis of past and present state-legal doctrines. The aforementioned fully applies to the Marxist-Leninist doctrine, which has recently been subjected to the most severe criticism and even slander, including from its former "ardent" supporters. The protracted systemic crisis in many countries that were called socialist, the vital need to overcome it, led to a sharply negative attitude towards Marxism-Leninism as a doctrine and socialism as a socio-political system. However, science cannot go to extremes. There is no doubt that in Marxism there is a lot of utopian and outdated, but there are provisions and conclusions in it that are of enduring significance. Ideas about collectivism, democracy, social justice, labor morality are indestructible as long as man and the world exist. Today in our country there is freedom of choice of methods, ways, approaches to the study of the state and law, pluralism of doctrines and opinions, ideological diversity. Although it is also true that almost nothing can be said about the state and law that would not directly or indirectly affect the interests of various social groups, classes, parties and political movements. But science must distance itself from group, class, nationalist interests in the name of truth and justice. The methods of the theory of state and law, as already mentioned, are closely related to its subject matter. The latter answers the question of what the theory studies, methods - how, in what ways it does it. Methods are based on the subject of theory, because without theory, the method remains non-objective, and science remains meaningless. In turn, only a theory armed with adequate methods can fulfill its tasks and functions. Theory and methods arise simultaneously, they are subject to similar requirements: not only the results, but also the path to them must be true. But theory and methods are not identical, cannot and should not replace each other. 2. General scientific methods of cognition of the state and law The theory of state and law develops its own methods for studying state-legal phenomena and at the same time actively uses the general methods developed by the social and natural sciences. For a long time, idealistic and materialistic methods of cognition, metaphysics and dialectics have been opposing in science. Our domestic science is characterized by an orientation towards a materialistic approach, according to which the deep, essential aspects of the state and law are ultimately determined by the economy, cash forms of ownership. The materialistic approach makes it possible to trace the connection between the state and law and real processes, to identify and explore their possibilities for strengthening the material foundations and increasing the economic potential of society. The philosophical basis of the theory of state and law is the dialectical method, that is, the doctrine of the most general regular connections between the development of being and consciousness. The general laws of dialectics include: - the transition of quantitative changes into qualitative ones (an increase in the number of norms and institutions that consolidate and regulate private property relations has led to the division of Russian law into private and public); - the law of unity and struggle of opposites (unity of rights and duties, centralization and decentralization in state building); - the law of negation of negation (in the Russian statehood there are elements of the past and the embryos of the new statehood). Creative application of the laws of dialectics, reflection of the richness of life processes in such philosophical categories as "content and form", "possibility and reality", "chance and necessity", "historical and logical", "duty and existence", "freedom and responsibility" etc., help to avoid vulgar subjectivist and voluntaristic interpretations of state-legal phenomena. The method of ascent from the abstract to the concrete and from the concrete to the abstract is directly adjacent to the philosophical laws and categories. Thus, the process of cognition of the form of the state can move from the abstraction "form of the state" to its types - the form of government and the form of government, then to the varieties of these forms. With such an approach, the knowledge of the form of the state will be deepened, concretized, and the very concept of "form of the state" will begin to be enriched with specific features and characteristics. When thinking moves from the concrete to the general, the abstract, the researcher can, for example, study criminal, administrative, disciplinary offenses, their properties and features, and then formulate a general (abstract) concept of an offense. Our science investigates the state and law not in statics, it does not consider them as something once and for all given, immutable. On the contrary, it proceeds from the fact that the analyzed phenomena are historical, dynamic, changing along with society, incorporating the achievements of civilization, world political and legal culture. Moving along the path of social progress, the state and law enrich their content with humanism and democracy, universal values, and become more and more socially oriented. In addition, science must take into account the historical traditions, socio-cultural roots of the state and law. The foregoing determines the use of the historical method in the cognition of state-legal phenomena. The systemic method of cognition is also in service with the theory of state and law. Any system is a holistic, ordered set of elements, the interaction of which generates a new quality that is not inherent in them. The state and law, in their essence, in structure, are complex, systemic phenomena. The main elements of the first are the organs of the state, the second - the rule of law. On the whole, the state as the most important political institution, along with other political institutions, is included in the political system, and law is included in the normative system of society. The system method opens up great opportunities for studying the backbone structural elements of the state and law, direct and reverse influence on the state and law of the internal and external environment, to prevent contradictions and "disturbances" in the legal and state systems. 3. Special and private scientific methods of the theory of state and law Knowledge and skillful use of general scientific methods does not exclude, but, on the contrary, involves the use of special and particular methods of cognition of state-legal phenomena. The formal legal method is traditional for legal science. The study of the internal structure of legal norms and law in general, the analysis of sources (forms of law), the formal certainty of law as its most important property, the methods for systematizing normative material, the rules of legal technique, etc. - all these are concrete manifestations of the formal legal method. It is also applicable in the analysis of the forms of the state, in determining and legalizing the competence of state bodies, etc. In a word, the formal-legal method follows from the very nature of the state and law, it helps to describe, classify and systematize state-legal phenomena, to explore their external and internal forms. In our time, when integration processes naturally intensify, the role of the method of comparative state science and jurisprudence, which has as its object similar state-legal institutions of various countries, is increasing. From a logical point of view, this method is based on the sequential study and comparison of a large number of similar objects. For example, it is difficult to establish the advantages and disadvantages of the state and legal institutions of our country without comparing them with similar institutions in other countries. The value of this method increases when there is a need for political and legal reforms. At the same time, comparative state science and jurisprudence has nothing in common with the mindless borrowing of foreign experience and its mechanical transfer to our specific historical, national, and socio-cultural conditions. The method of state and legal modeling also belongs to the special ones. Its essence lies in the fact that there is a certain similarity between various state and legal phenomena, and therefore, knowing the properties and features of one of them (the model), one can judge others with a sufficient degree of accuracy. Modeling helps in the search for the best schemes for organizing the state apparatus, the most rational structure of the administrative-territorial division, in the formation of a system of legislation, etc. In modern conditions, the concrete sociological method of studying state-legal problems is of particular importance. With its help, it is possible to identify the degree of effectiveness of the functioning of all branches of government, legal regulation, the state of law and order in the country. Concrete sociological research contributes to the development of key issues in the theory of state and law, for the study of which they provide a mass of new life facts, statistical and other data. Within the framework of the concrete sociological method, such techniques as observation, questioning, interviewing, experiment, etc. are used. 4. Significance of scientific definitions The most important task of any science is to comprehensively study and then express its subject matter in concepts and scientific definitions. Concepts and their scientific definitions are a kind of clots of human thought that have absorbed knowledge about phenomena, their properties and signs. It is in concepts, i.e., ways of reflecting state-legal realities, in generalizations of practice, that the theory of state and law concentrates the accumulated knowledge. These concepts should be meaningful scientific abstractions. They become truly scientific when they correctly reflect the general and necessary features of such complex, multilateral and dynamic phenomena as the state and law. Scientific state-legal definitions are a brief and accurate disclosure of political and legal concepts. They are of great importance both for theory and for law enforcement practice. Often the question of the essential features of a legal concept and its legislative definition (definition) is decided by the legislator himself. The brevity of scientific definitions is their advantage and disadvantage at the same time. Therefore, the more complex this or that state-legal phenomenon, the less successfully it is possible to express everything essential in its brief definition. The definition in this case acquires the character of only some means of initial orientation in the subject, but it cannot completely reveal all the concrete given phenomenon. In such cases, several interrelated definitions are used, forming a conceptual series. It can be said with confidence that the arsenal of means, techniques and methods used by the theory of state and law is rich and diverse; there is a constant search for new research methods. Our science needs not only to free itself, to cleanse itself of myths and stereotypes of the past, but also to get rid of the bad habits that undermine its authority, which were formed during the totalitarian regime (justifying the arbitrariness and lawlessness of those in power, praising the "leaders", power structures and their policies, lack of principle etc.). As for the choice of a specific method and its priority use, they entirely depend on the subject and objectives of the study. Most often, an integrated approach is needed, the use of many methods for a comprehensive analysis of complex state and legal phenomena. Chapter 3. Theory of state and law in the system of the humanities and academic disciplines 1. The role and place of the theory of state and law in the system of the humanities The unity and integrity of the material and spiritual world determine the unity of all sciences. A particularly close relationship exists between the humanities (social) sciences. The humanities study society, man, human relations, man-made institutions and institutions, individual, group and social consciousness. Humanity, its dignity, rights and freedoms are at the center of the humanities. The fundamental issue of public life is the question of the state and law, their role and place in the life of society. This question cannot be the monopoly of any one science. All the humanities in one way or another affect it, hence the close interaction of the theory of state and law with philosophy, economic theory, sociology, political science, etc. It relies on their advanced achievements, occupies a place in the system of humanitarian knowledge, determined by the significance of state and law in the life of society. Theory of State and Law and Philosophy. Philosophy is the science of the general laws of nature, society and thinking, a system of knowledge about the general principles of being and consciousness, about the relationship of man to the world around him. The theory of state and law has, perhaps, the deepest and strongest ties with this science. The creative use of the highest achievements of philosophical knowledge largely determines the general scientific level of the doctrine of the state and law, which, in turn, equips philosophy with rich material that makes it possible to formulate general principles for the development of freedom and social progress. Appeal to the advanced achievements of philosophy in the study of problems of state and law allows researchers to avoid worldview errors, contributes to the correct formulation of new problems and a more conscious solution of "eternal" issues of state and law. The dependence between the philosophical foundations of the worldview and state-legal theories can be seen throughout their history. It is the philosophical worldview of this or that thinker that can be used for both progressive and reactionary influence on the formation of views on the state and law in society. Thus, the idealistic philosophical system of Hegel in the conditions of the Prussian monarchy contributed to the spread of anti-democratic views on the state, blind obedience to it. At the same time, Hegel's dialectic became an objective source of progressive scientific ideas about the state and law. True, idealism in philosophy does not always give rise to a reactionary interpretation of state-legal phenomena, just as their dialectical interpretation does not automatically lead to progressive political views. Philosophical worldview helps a deeper assimilation of the theory of state and law as an academic discipline. The dialectical worldview opens the way to understanding the internal inconsistency of the state and law, their multilateral impact on social processes. Theory of state and law and economic sciences. Economic sciences study the methods of production of material goods, forms of ownership, the economic life of a person and society, the distribution relations existing in it, etc., reveal the influence of the economic basis on social and political institutions. The science of state and law proceeds from the following thesis: the objective economic conditionality of state-legal phenomena is expressed primarily in the fact that each mode of production functions the more successfully, the more scope it is given by state-legal mechanisms. In a word, economic relations of any level of development require the most appropriate state and legal institutions. In this sense, we can talk about the economic predetermination of state institutions and legal norms, where economic and legal problems are directly connected. The state and law, arising in response to economic needs, themselves act as the most important factor in the effective functioning and even formation of relevant social relations. The state and law are connected with economic relations more directly, more closely than other parts of the social superstructure. It is in them that socio-economic needs and interests find a concentrated expression. In our country, the problems of the relationship between the economy and state-legal management (regulation) have acquired particular urgency and relevance in recent years. Hopes for an automatic (after the emergence of a spontaneous market) recovery of the economy did not come true and could not come true. The spontaneous development of economic processes leads to the breakdown and decline of the entire system of material production. World experience proves that political power can cause the greatest harm to economic development, undermine and squander the economic potential of the country. The results of such a detrimental effect of state power on our economy have become an obvious and bleak fact. This is a considerable fault of economic, and partly of legal science. Theory of state and law and sociology. Sociology is one of the humanities dealing with the problems of managing social life and the functioning of social systems. Therefore, it is associated with management, carried out through the state and law. Sociology also studies the patterns of people's social behavior and its motivation. Based on the achievements of sociology, on specific sociological research, the science of state and law can successfully solve the problems of increasing the social effectiveness of the rules of law, methods and guarantees for improving the state apparatus. Theory of state and law and political science. The main purpose of political science is the study of politics, political institutions, systems and processes. The state and law are inseparable from politics and the political life of society. Moreover, the state, its activity is by no means a special case of politics, not one of the individual, ordinary participants in political life. Political life as a whole is directly connected with state power, with its content and forms, methods of activity. Politics, according to the ancient Greeks, is the art of government. Political (state) power is the crown of politics, serves as the basis of order in society. All political parties and other political institutions are directly or indirectly associated with political power, therefore, they all actively interact with the state and law. Theory of state and law and social psychology. The theory of state and law, which studies specific forms and methods of influencing people's behavior, cannot but be interested in the socio-psychological characteristics of social life. Moreover, the study of the formation of all types and levels of legal consciousness, law-making, the content of law, the effectiveness of its impact on the consciousness, will and behavior of people is impossible without taking into account the achievements of social psychology. Social psychology is designed to help the science of the state and law to establish the most typical consequences of the activities of state and legal institutions. Fear of rampant crime, public apathy, chauvinistic passions, general uncertainty, suspicion, hysteria, passivity, on the one hand, and public safety, efficiency, confidence in the future, organization and high discipline are two poles of the states of social psychology, which not only differently affect the forms, functions of the state, the level of development and the effectiveness of law and legal regulation, but to a large extent are the results of their functioning. Almost all the main categories of state and law (power, authority, subjective rights and obligations, subordination, discipline, legality, bureaucracy, corruption, etc.) cannot be truly deeply disclosed without revealing their socio-psychological side. According to Denis Shevchuk, today it is important to use the data of psychological science on such patterns of human behavior as apperception (perception), which expresses the dependence of people's consciousness and behavior on their experience, on previously acquired knowledge, views. The mechanism of apperception ensures both the transfer of progressive traditions and skills, and conservatism, inertness, inertia in mass behavior. Hence the task of law-making is to create norms that would promote progressive and would prevent the negative action of this psychological mechanism. The same can be said about the psychological laws of mass assimilation, imitation, isolation, opposition of "oneself", "one's own", "others", "strangers". These psychological processes can be strengthened or weakened depending on how much they are facilitated or hindered by the state and law. Enriching state studies and jurisprudence with the latest achievements of all the humanities will help them to reveal the nature, essence and patterns of the movement of their subject, to choose correct, humanistically oriented cognitive landmarks, and to get closer to the needs of practice. 2. Theory of state and law in the system of legal sciences The complexity, versatility, dynamism of the state and law lead to the fact that their individual aspects, aspects are studied by many legal sciences. And any science necessarily includes the cognitive activity of people, and the more productive the results of research work, the more knowledge science accumulates. The system of legal disciplines can be divided into the following groups: 1) historical and theoretical sciences (theory of state and law, history of state and law, history of political and legal doctrines); 2) branch sciences (constitutional law, civil law, labor law, administrative law, criminal law, environmental law, criminal procedure law, civil procedure law, etc.); 3) applied sciences (forensic science, forensic statistics, forensic medicine, etc.); a special place is occupied by the science of international law. Historical and legal sciences closely adjoin the theory of state and law, represent its peculiar offshoot. They also study the state and law in general, the historical development of political and legal thought, but they focus on the factual side, on the historical concreteness of the state and law. The property of the subject of historical and legal sciences is only what is left in the past. Therefore, the theory of state and law uses the conclusions and achievements of the historical sciences, historical material as supporting, basic. At the same time, the isolation of historical material, its in-depth study by historical sciences frees from the need to reproduce it in the theory of state and law. The largest group is branch legal sciences, in which the most significant changes are taking place. So, today the role of civil law and, accordingly, the science of civil law is significantly increasing. The new Civil Code of the Russian Federation regulates the daily economic (property) life of both citizens and organizations. In it, any entrepreneur, any citizen can find answers to questions that arise in his daily life. The subject, content and conceptual relationship of the theory of state and law with the branch sciences is beyond doubt. In relation to them, the theory of state and law acts as a generalizing, synthesizing science. Firstly, it studies the state and law in general, finds out the general patterns of their emergence, development and functioning. The subject of any branch of science is set by the boundaries of certain social relations, the framework of the corresponding branch of law. Secondly, the theory of state and law explores issues common to all branch sciences (the doctrine of legal relations, offenses, legal responsibility, legal understanding, etc.). Thirdly, it plays a methodological role in jurisprudence. Branch sciences cannot do without its conclusions, scientific categories. The theory of state and law is much less interconnected with applied sciences. This is due to the fact that the latter do not fully belong to the legal sciences, since they include data from the natural, technical and other sciences in their content. For example, forensic medicine is the use of medical science in judicial activities, and forensic science relies on the achievements of technical sciences. 3. Theory of state and law as an academic discipline, its tasks and functions The concept of higher legal education is focused on the training of highly qualified, widely educated specialists capable of active creative participation in the state-legal life, possessing an appropriate political and legal culture. Narrow professional training is unacceptable here, since it not only impoverishes the intellectual potential of a lawyer, but also does not correspond to the nature of his professional activity as social and public. It is clear that judges, prosecutors, investigators, lawyers need to know well what is important for resolving various legal cases, i.e. the content of specific laws, the procedure for implementing legal procedures, etc. But all this can be truly understood and used only on the basis of deep scientific ideas about the state and law in general, the need for the rule of law, law in all spheres of society, the triumph of the rights and freedoms of man and citizen. Respect for human dignity, full, unconditional and immediate protection of the rights and freedoms of the individual, providing conditions for the free development of citizens is the primary duty of all state bodies in general and law enforcement in particular. Hence, the importance of the theory of state and law is clear, which, on a scientific basis, reveals the ideological spectrum of state-legal life and legal activity. It is necessary to distinguish between the theory of state and law as a science and an academic discipline. Firstly, the theory of state and law - the academic discipline is completely based on the theory of state and law - science. Therefore, the larger the scientific achievements, the more meaningful and complete the corresponding discipline. Secondly, their goals, objectives, subjects are different. So, the goal of the academic discipline is to bring to the students with the help of methodological techniques, the educational process knowledge already obtained by science and tested by practice, the goal of science is the increment, accumulation of new information by research scientists using the entire methodological arsenal. Thirdly, the academic discipline is more subjective than science. The system of the theory of state and law as a science is conditioned by the real system of state-legal phenomena studied by it and is as close as possible to it. The system of the theory of state and law as an academic discipline is largely derived from the discretion of the compilers of curricula, the number of hours allotted for its study and the personal qualities of the teacher. The theory of state and law is one of the most difficult academic disciplines studied in the first year. It is full of generalizations, abstract scientific provisions, concepts (categories). Of particular importance here are scientific definitions (definitions), which in a concise form reflect the essence of the analyzed phenomena. Therefore, along with textbooks, students should independently and in-depth study monographs, collections of scientific papers, articles in legal journals. As an academic discipline, the theory of state and law performs two main functions: it introduces students to legal education and provides them with proper general theoretical training. The first function is realized when the foundations of the theory of state and law are studied. Here students get acquainted with the initial concepts and provisions of state science and jurisprudence, which allows them to move on to the study of branch legal disciplines - constitutional, civil, labor, administrative, criminal law, etc. The second function is the development of students' abstract, analytical thinking, the formation of political and legal culture. Its implementation begins in the first year, and ends in the last, when the theoretical results of all training are summed up and students are ready to perceive a holistic picture of legal reality, to understand the possibilities of law and legal regulation in solving economic, social and other problems of society. Section two. Correlation of society, state and law Chapter 4. Society, its structure, social, political institutions and regulators 1. Society: its concept and structure In the scientific and educational literature, many definitions and characteristics of human society are given, but they all agree on one thing: society is a product of the interaction of people, a certain organization of their lives, an internally contradictory organism, the essence of which lies in diverse (economic, moral, religious, etc.) connections and relations between people, their associations and communities. This is a complex, self-developing system of connections between people united by economic, family, group, ethnic, estate, class relations and interests. In society, first of all, not biological, but social laws operate. Considering society as a system of social relations, the basis of which is economic (material) relations, allows, firstly, to approach it concretely historically, to single out various socio-economic formations (slave-owning, feudal, capitalist, socialist society); secondly, to reveal the specifics of the main spheres of public life (economic, political, spiritual); thirdly, to clearly define the subjects of social communication (personality, family, nation, etc.). Society appeared when people separated from the animal world. Man is its main premise and primary cell, because, as Aristotle said, man is a social being. Therefore, the most important feature of society is that it is a system of interrelations of rational beings. Interacting with society, a person develops himself and develops his social, essential properties and forces, and thereby becomes a personality and stimulates the progress of society. In different periods of historical development, society took on various forms, the degree of its maturity, its internal structure, that is, the economic, social class, and political structure, changed. Primitive society, for example, for a long time was more or less homogeneous collectivist, did not know social and other stratification. Gradually, the structure of society became more complex: with changes in economic relations, social communities, groups, classes, etc. appeared, having their own interests and characteristics. 2. Society and its social and political institutions Society cannot do without social and then political institutions, that is, stable social or political institutions, institutions, associations and communities that perform social or political functions necessary for society. As already noted, people are social beings, they cannot live, work, without uniting according to needs and interests, goals. In a word, social and political institutions arise due to biological, social, political and other reasons with an objective necessity. Historically, tribal communities were the first social institution. The clan was a group (community) of people united by consanguinity or alleged kinship, common property, joint labor and equal distribution. This social institution was very stable and viable. It ensured the survival of people who were still largely dependent on natural forces and could only exist on the basis of collective economic and social unity. Clans existed and functioned for many millennia, they united into larger social institutions - tribes. Later, religious associations (orders, etc.), trade and merchant guilds, and other social institutions appeared. Historically, the first political institution, the most important and largest, was the state. As society becomes more complex and democracy develops, new socio-production (cooperatives), socio-political (trade unions), political (political parties) and other institutions emerge. 3. Society and power Together with human society, social power arises as its integral and necessary element. It gives the society integrity, manageability, serves as the most important factor of organization and order. In other words, it is a systematizing element that ensures the viability of society. Under the influence of power, social relations become purposeful, acquire the character of managed and controlled relations, and the joint life of people becomes organized. Thus, social power is an organized force that ensures the ability of a particular social community - clan, group, class, people (ruling subject) - to subordinate people (subjects) to their will, using various methods, including the method of coercion. It is of two types - non-political and political (state). Power is a superstructural phenomenon, its nature, properties, functions are determined by economic relations, the basis of society. However, it cannot function apart from the will and consciousness of people. Will is the most important element of any social power, without which it is impossible to understand its nature and the essence of power relations. The foregoing is due to the fact that power means, on the one hand, the transfer (imposition) of one's will by those in power on those who are subject to it, and on the other hand, the subordination of those subject to this will. Will firmly connects power with its subject: power belongs to the social community whose will is embodied in it. There is no subjectless, i.e., belonging to no one, power and cannot be. That is why in the doctrine of power an important place is occupied by the concept of "ruling subject" - the primary source, the primary bearer of power. Power is also impossible without the objects of its influence - individuals, their associations, classes, society as a whole. Sometimes the subject and object of power coincide, but more often than not, the ruling and the ruled are distinctly different and occupy different positions in society. Emphasizing the importance of the will as one of the defining elements of power, one should not belittle its other structural elements, in particular, such as force. Power may be weak, but devoid of strength, it ceases to be real power, since it is not capable of putting the imperious will into practice. Power can be strong with the support and trust of the masses, that is, it relies on the power of authority. The ruling subject often uses the power of ideological influence, including deceit and populist promises, to impose his will on those subject to him. But power, especially state power, has subject-material sources of power - organs of violence, coercion, armed organizations of people. Power continuously affects social processes and is itself expressed, manifested in a special kind of relations - power relations, the essence of which lies, as already noted, in the unity of two manifestations: the transfer (imposition) of the will of the ruling subject to the subject and the subordination of the latter to this will. Power relations are distinguished by a pronounced purposefulness. The defining feature of power is the ability of those in power to impose their will on others, to dominate those who are subject. Hence the negative side of power, expressed in the possibility of its abuse and its arbitrary use. It often becomes the subject of sharp struggle and clashes between people, political parties, strata and classes. 4. Society, social regulation, order and disorder For centuries, people have dreamed of an ideal, harmonious society of goodness and justice. However, in reality, society is a more or less stable balance of forces, conflicts and agreements, rivalry and cooperation. There are two natural, but opposite tendencies in it - the desire for order and the desire for disorder. Order in society is a necessary condition for its normal functioning. This is settlement, stability, coherence, coherence of social relations, a certain harmony in people's behavior. The order reflects the achieved level of organization of social life, testifies to such qualitative indicators as regularity, rhythm, proportionality and coherence of various phenomena and processes in the sphere of material production, socio-political life, and everyday life. In addition, the state of public and personal peace and security, and the degree to which people are satisfied with the conditions necessary for the realization of socially significant and personal interests and needs, depend on the level of public order. In a word, order is a great boon for society and the individual. According to K. Marx, regulation and order are a form of consolidation of any mode of production, and therefore - its relative emancipation from mere chance and mere arbitrariness. The creators of the solidarity theory of law (O. Comte, L. Dyugi) believed that people have always had two instincts - solidarity and aggressiveness. Solidarity as a good follows from the social nature of man and manifests itself in harmony between people, in their common, mutually coordinated reasonable interests, in a stable social order. Aggression harms people, destroys order. Public order does not arise by itself, it is a consequence of the regulation, orderliness of social relations. To regulate (in social life) means to direct the behavior of people and their social communities, the activities of bodies and organizations, to introduce them into a certain framework, purposefully streamline them. The existence and development of social regulation, its place and significance in society are characterized by a number of patterns. First, each historically specific society objectively requires its own measure of social regulation. If the volume and intensity of regulation is less than the required measure, then spontaneity and disorganization are inevitable, undermining public order. On the contrary, excessive, i.e. beyond measure, regulation leads to overorganization, to the limitation of initiative and self-regulation. This measure depends on the level of maturity of society, the presence and severity of contradictions in it, the degree of development of social consciousness and culture, the strength of established traditions, etc. Secondly, as society develops in social regulation, the ratio of social and psychobiological factors of human behavior changes. The role of the social factor is gradually increasing. It has long been said that a person is not born good and not evil, not a criminal and not virtuous - that is what makes him the surrounding social environment. In addition, with the development of social freedom, a person can "reset" his criminal autobiography at any time. At the same time, the proportion of the psychological component that influences the individual behavior of a person (including his aggressiveness and selfishness), although it is reduced, does not completely disappear. Thirdly, with the complication of social life, its regulatory mechanisms quantitatively and qualitatively change, a whole system of regulatory norms appears. In the scientific literature, two main types of social regulation are distinguished: individual and normative. Individual regulation is the streamlining of people's behavior with the help of one-time personal regulatory actions, decisions related to individual cases, to specific individuals. This is the simplest type of social regulation, carried out by performing various operational decisions, tasks, teams of labor process leaders, parents, etc. It has undeniable advantages, because it allows you to solve certain life problems, taking into account the personal qualities of the performers. However, its significant shortcomings are also obvious: each time the problem needs to be solved anew; there is no single order, and there are also ample opportunities for personal discretion and subjectivity. Regulatory regulation - streamlining the behavior of people, the activities of bodies, organizations with the help of general rules, i.e. standards, samples, patterns, behaviors that apply to all cases of a given kind and to which everyone who finds themselves in the scope of such rules must obey. The emergence of normative regulation is a turning point in the formation of social regulation, a qualitative leap in its development. By means of general rules, a single, continuously operating order in society is achieved. With normative regulation, the possibilities for manifestations of subjectivism, the dominance of chance and arbitrariness are significantly reduced. It is true that, due to its abstract nature, it is not without flaws. Therefore, statutory regulation is usually carried out in combination with individual regulation. To ensure a stable social order, in addition to the constant work of regulatory mechanisms, considerable and active efforts of social and political institutions are required. Disorder in society is the opposite of social order, spontaneity, disorganization, chaos. It can be caused by deliberate actions in order to destabilize society, but it can also arise spontaneously, as a result of a weakening of order, and can lead society to disintegration. This means that order and disorder are the dialectical unity of opposites. In other words, social (stabilizing) and anti-social (destructive) forces oppose in various combinations in any society. Regulatory mechanisms and the authorities and institutions that ensure their action restrain destructive forces (criminal, extremist, anarchist, etc.), which are ready, in the presence of suitable conditions, to burst into the forefront of public life. The great benefits of organization, discipline, and a stable social order have been realized and recognized by the peoples of many countries. For example, the Japanese people are distinguished by high organization and adherence to clarity and order. This is undoubtedly one of the important reasons for the successful and sustainable development of Japanese society in the field of material production, scientific and technological progress, and culture. Unfortunately, the peoples of Russia are still far from a respectful and zealous attitude towards public order. And during periods of crisis, favorable conditions are created in society for the activation of antisocial forces. At the same time, it is our society that more than others needs continuity, stability, organization and order. 5. Primitive (pre-state) society For a long time our literature illuminated pre-state society, relying mainly on F. Engels's book The Origin of the Family, Private Property and the State. It was written on the basis of L. Morgan's fundamental research "Ancient Society" published in 1877, which traces the life of North American Indian tribes. By the end of the XX century. Thanks to the successes of archaeologists and ethnographers, ideas about primitive society were significantly enriched, the one-sided Eurocentric view of ancient history was overcome, and the history of all regions of the globe was included in the orbit of scientific understanding. Today, the scientific periodization of pre-state society is justified in a new way. For the theory of state and law, the identification of two main periods in the development of primitive society, and, consequently, two ways of its existence and reproduction, has a certain methodological value: - appropriating economy (hunting, fishing, gathering); - producing economy (agriculture, cattle breeding, metalworking, ceramic production). The first period basically corresponds to the maternal clan (matriarchy), the second - patriarchal (patriarchy). Any human society must be organized in some way, that is, institutionalized. Otherwise, it is doomed to turn into a herd, a crowd. Historically, the first form of organization of pre-state society was the tribal community. Personal, family connection united all members of the clan into a single whole. This unity was also strengthened by collective labor, common production and egalitarian distribution. F. Engels gave an enthusiastic description of the tribal organization. He wrote: "And what a wonderful organization this tribal system is in all its naivety and simplicity! Without soldiers, gendarmes and policemen, without nobles, kings, governors, prefects or judges, without prisons, without trials - everything goes on in its own established order" . Thus, the clan was at the same time the oldest social institution and the very first form of organization of pre-state society. Power in primitive society personified the strength and will of the clan or the union of clans: the source and bearer of power (the ruling subject) was the clan, it was aimed at managing the common affairs of the clan, all its members were subject (the object of power). Here the subject and object of power completely coincided, therefore it was by its nature directly social, that is, not separated from society and non-political. The only way to implement it was public self-government. There were no professional managers or special coercive bodies at that time. The highest body of public authority in the clan was the meeting of all adult members of society - men and women. The assembly is as ancient an institution as the genus itself. It solved all the basic issues of his life. Here, leaders (elders, leaders) were elected for a term or to perform certain tasks, disputes between individuals were resolved, etc. The decisions of the assembly were binding on all, as well as the instructions of the leader. Although the public authority did not have special coercive institutions, it was quite real, capable of effective coercion for violating existing rules of conduct. Punishment strictly followed for committed misconduct, and it could be quite cruel - the death penalty, expulsion from the clan and tribe. In most cases, a simple reproach, remark, and censure was sufficient. No one had privileges, and therefore no one managed to escape punishment. On the other hand, the clan, as one person, stood up to protect its relative, and no one could evade blood feud - neither the offender nor his relatives. The simple relations of primitive society were regulated by customs - historically established rules of behavior that became a habit as a result of upbringing and repeated repetition of the same actions and deeds. Already in the early stages of the development of society, the skills of collective labor activity, hunting, etc., acquire the significance of customs. In the most important cases, the labor process was accompanied by ritual actions. For example, the training of hunters was filled with mystical content, furnished with mysterious rites. The customs of the pre-state society had the character of undivided "mononorms", were at the same time the norms of the organization of social life, and the norms of primitive morality, and ritual and ceremonial rules. Thus, the natural division of functions in the labor process between a man and a woman, an adult and a child was considered both as a production custom, and as a norm of morality, and as a dictate of religion. Mononorms were initially dictated by the "natural-natural" basis of the appropriating society, in which man is also a part of nature. In them, rights and obligations seem to merge together. True, a special place was occupied by such a means of ensuring customs as taboo (prohibition). Having arisen at the very dawn of the history of human society, the taboo played a huge role in streamlining sexual relations, strictly forbidding marriage with blood relatives (incest). Thanks to the taboo, primitive society maintained the necessary discipline that ensured the extraction and reproduction of vital goods. Taboo protected hunting grounds, nesting places for birds and rookeries of animals from excessive destruction, provided the conditions for the collective existence of people. In a pre-state society, customs, as a rule, were observed by virtue of authority and habit, but when the custom needed to be reinforced by direct coercion, society acted as a collective carrier of force - obliging, expelling, and even dooming the violator (criminal) to death. Chapter 5 1. Causes and conditions for the emergence of the state and law The problem of the emergence of the state and law remains and, apparently, will remain debatable in science for a long time. Firstly, this most complex problem is based on various ideological, philosophical views and currents (for example, there is an opinion according to which the state and law have existed forever. For its supporters, there is no problem of the emergence of the state and law at all). Secondly, the historical and ethnographic sciences provide ever new knowledge about the causes of the origin of the state and law. Modern materialistic science connects the process of the emergence of the state and law (especially in European countries) mainly with the development of production, with the transition from an appropriating to a producing economy. As a result of evolutionary development, in order to satisfy his needs, man gradually moved from the appropriation of ready-made animal and plant forms to genuine labor activity aimed at transforming nature and producing tools, food, etc. It was the transition to a productive economy that gave impetus to three major divisions of social labor - the separation of cattle breeding from agriculture, the separation of crafts and the isolation of a layer of people employed in the sphere of exchange - trade (merchants). Such great events in public life had equally large and numerous consequences. In the changed conditions, the role of male labor has increased, which has become clearly a priority in comparison with female domestic work. In this regard, the matriarchal clan gave way to the patriarchal, where kinship is already conducted through the paternal, and not through the maternal line. But even more important, perhaps, was the fact that the tribal community was gradually beginning to break up into patriarchal families (farmers, cattle breeders, artisans), whose interests no longer completely coincided with the interests of the clan. With the emergence of the family, the decomposition of the tribal community began. Finally, it was the turn of specialization, inevitable in the division of labor, to increase its productivity. The surplus product, as a result of the growth of labor productivity, led to the emergence of an economic opportunity for the exchange of goods and the appropriation of the results of other people's labor, the emergence of private property, the social stratification of primitive society, the formation of classes, the emergence of the state and law. And yet the reasons for the emergence of the state and law are rooted not only in material production, but also in the reproduction of man himself. In particular, the prohibition of incest (incest) not only contributed to the survival and strengthening of the human race, but also had a multifaceted impact on the development of society, the structure of its internal and external relations, and culture. After all, to understand that incest leads to degeneration, puts the family on the brink of death - half the battle. It was much more difficult to eradicate it, for which severe measures were required to suppress the inevitable deviations from the taboo, which until recently did not exist. Therefore, there is reason to believe that tribal organs that support the prohibition of incest and its violent suppression within the clan, the development of ties with other clans for the purpose of interchanging women, were the most ancient elements of the emerging statehood. The tribal organization of society was transformed into a state in an evolutionary way, preserving historical continuity, passing through transitional stages. One of these transitional, pre-state forms was military democracy, where the organs of tribal social self-government are still preserved, but new pre-state structures are gradually gaining strength in the person of the military leader and his squad. Here appeared the beginnings of military coercion and suppression, because the traditional tribal organization of self-government was no longer able to resolve the contradictions that were increasingly destroying the centuries-old orders. The formation of the state is a long process, which went in different ways for different peoples. Nowadays, the prevailing opinion is that one of the main ones is the eastern path of the emergence of the state, the "Asian mode of production" (first - the Ancient East, then - Africa, America, Oceania). Here socio-economic relations and structures of the tribal system - the land community, collective property - turned out to be very stable, traditional. The management of public property became the most important function of the tribal nobility, which gradually turned into a separate social group (estate, caste), and its interests became more and more isolated from the interests of other members of society. Consequently, the eastern (Asian) version of the emergence of statehood differs from other variants mainly in that here the tribal nobility, who performed public positions, smoothly transformed into state bodies (state bureaucracy), and public (collective) property also gradually turned into state property. Private property was not essential here. The considered path of the emergence of the state was significantly influenced by geographical conditions, the need to perform large-scale public works (construction, operation and protection of irrigation systems, etc.), which predetermined the emergence of an independent and strong public authority. The Eastern states differed markedly from each other, although they had much in common. All of them were absolute, despotic monarchies, possessed a powerful bureaucracy, their economic basis was state property. Here, in fact, there was no clearly expressed class differentiation. The state simultaneously exploited the rural community members and managed them, that is, the state itself acted as the organizer of production. The process of the emergence of the state on the territory of Europe followed a different historical path, where the main state-forming factor was the class stratification of society, due to the intensive formation of private ownership of land, livestock, and slaves. According to F. Engels, this process took place in the most "pure" form in Athens. In Rome, the emergence of classes and the state was greatly influenced by the long struggle of two groups of free members of the tribal society - patricians and plebeians. As a result of the victories of the latter, democratic orders were established in it: the equality of all free citizens, the opportunity for everyone to be both a landowner and a warrior, etc. However, by the end of the XNUMXnd century. BC e. internal contradictions intensified in the Roman Empire, which led to the creation of a powerful state machine. On the issue of the emergence of the state on the territory of Western and Eastern Europe, two points of view have been expressed in the literature. Supporters of the first state that in this region, in the course of the decomposition of primitive relations, a feudal state was born (this applies primarily to Germany and Russia). Adherents of the second believe that after the decomposition of the tribal system, a long period precedes feudalism, during which the nobility is allocated to a special group, provides itself with privileges, primarily in the ownership of land, but the peasants retain both freedom and ownership of land. This period they call feudalism, and the state - feudal. Thus, at the stage of the producing economy, under the influence of the division of labor, the emergence of the patriarchal family, military conquests, the prohibition of incest and other factors, primitive society is stratified, its contradictions are exacerbated, as a result of which the tribal organization of social life is becoming obsolete, and it is replaced with the same inevitability. comes a new organizational form of society - statehood. 2. Features of the emergence of law The causes and conditions that gave birth to the law are in many respects similar to the reasons that gave birth to the state. However, there was a deeper continuity between the mononorms of primitive society and the norms of law than between the organs of tribal self-government and the organs of the state. Age-old customs, tested by many generations, were regarded as given from above, correct and fair, and were often called "right", "truth". The most valuable of them were sanctioned by the state and became important sources of law (customary law). The kings (rulers) of the early states, continuing the general social traditions of customary law, tried to support the principles of social justice in their laws: they limited wealth, usury, fixed fair prices, etc. This was reflected in the oldest legal acts - the laws of Hammurabi, XII tables, reforms Solon. True, there is no doubt that right from the early stages of its development, along with the performance of general social functions, played an important role as a normative-class regulator, that is, it regulated social relations in the interests of the economically dominant class. The emergence of law is a natural consequence of the complication of social relationships, the deepening and aggravation of social contradictions and conflicts. Customs no longer provide order and stability in society, which means that there is an objective need for fundamentally new regulators of social relations. Unlike customs, legal norms are fixed in written sources, contain clearly formulated permissions, obligations, restrictions and prohibitions. The procedure and procedure for ensuring the implementation of legal norms are changing, new ways of monitoring their implementation are emerging: if earlier the society as a whole, its public leaders were such a controller, then in the conditions of the state it is the police, the army. Disputes are resolved by the court. Legal norms differ from customs and sanctions: penalties for encroachments on the property of the social elite are significantly tougher, punishments for crimes against a person are differentiated depending on the status of the victim - free, slave, man, woman. Speaking about the features of the formation of law, it must be remembered that the process of the emergence of the state and law proceeded largely in parallel, with their mutual influence on each other. So, in the East, where the role of traditions is very large, law arises and develops under the influence of religion and morality, and its main sources are religious provisions (teachings) - the Laws of Manu in India, the Koran in Muslim countries, etc. In European countries, along with with customary law, extensive legislation and case law are developing, which are distinguished by a higher degree of formalization and certainty than in the East. 3. Basic theories of the origin of the state Theories about the origin of the state began to emerge along with the latter, reflecting the level of development of the economic system and social consciousness. Let's dwell on some of them. Theological theory is one of the most ancient. Its creators believed that the state exists forever by virtue of the divine will, and therefore everyone is obliged to humble themselves before this will, to obey it in everything. So, in the laws of King Hammurabi (ancient Babylon) it was said about the divine origin of the power of the king: "The gods put Hammurabi to rule the" black-headed ""; "Man is the shadow of God, the slave is the shadow of man, and the king is equal to God" (i.e., god-like) In ancient China, the emperor was called the son of heaven. In times closer to us, the idea of God-established state power continued to develop Christianity. "Let every soul be submissive to the highest authorities," says the letter of the Apostle Paul to the Romans, established by God." According to theological theory, the creator of everything on Earth, including the state, is God, but it is impossible to penetrate the secret of the divine plan, to comprehend the nature and essence of the state. Without touching upon the scientific nature of this premise based on agnosticism, we note that theological theory did not reject the need for the creation and functioning of an earthly state, ensuring proper law and order. Giving the state and state power a divine halo, it raised their prestige by its inherent means, severely condemned crime, and contributed to the establishment of mutual understanding and reasonable order in society. In our time, theology also has considerable opportunities for improving the spiritual life in the country and strengthening Russian statehood. The patriarchal theory was widespread in ancient Greece and slave-owning Rome, received a second wind during the period of medieval absolutism, and has reached our days with some echoes. At its origins was Aristotle, who believed that the state is a natural form of human life, that outside the state, communication between a person and his own kind is impossible. As beings, social people tend to unite, to form a patriarchal family. And the increase in the number of these families and their unification lead to the formation of the state. Aristotle argued that state power is the continuation and development of paternal power. In the Middle Ages, justifying the existence of absolutism in England, R. Filmer in his work "Patriarchy, or the Defense of the Natural Right of Kings" (1642), with references to the patriarchal theory, argued that initially God granted royal power to Adam, who therefore is not only a father of the human race, but also its ruler. The patriarchal theory has found fertile ground in Russia. It was actively promoted by the sociologist, publicist, theorist of populism N.K. Mikhailovsky. Prominent historian M.N. Pokrovsky also believed that the oldest type of state power developed directly from the power of the father. Apparently, not without the influence of this theory, the age-old tradition of faith in the "father of the people", a good king, leader, a kind of superpersonality capable of solving all problems for everyone, has taken root in our country. In essence, such a tradition is anti-democratic, dooms people to passively expect other people's decisions, undermines self-confidence, reduces social activity among the masses, and responsibility for the fate of their country. Paternalism, leaderism also gives rise to numerous ideological "squires" who are ready to praise the leaders in every way, to justify their most negative actions and decisions in the eyes of the people. This trend manifested itself most ugly in the days of Stalinist totalitarianism. The cult ideology not only justified, but also praised in every possible way the concentration of unlimited power in the hands of Stalin, immediately turning his every step into a "historical", "fateful", "decisive". The whole country was involved in this grandiose praise, almost epic flattery, permeated with the idea of infallibility, omniscience, omnipotence and omniscience of one person. But to the accompaniment of a deafening cult ideology, there was an unprecedented rampant lawlessness and arbitrariness. The human person was neither socially nor legally protected. The traditions of paternalism are still alive today. Often a statesman is voluntarily or unwittingly likened to the head of a large family, they place special hopes on him, they consider him the savior of the Fatherland with no alternative, and they are ready to give him excessively broad powers. The ideological "squires" have not gone into the past either. The patriarchal theory was criticized by many and at different times. In particular, even J. Locke wrote that instead of a scientific approach, we find "children's fables" in its provisions. It was called the "doctrine of copybooks", the anti-scientific biologization of such a complex phenomenon as the state. The theory of the contractual origin of the state also arose in the mists of time. In ancient Greece, some sophists believed that the state arose as a result of a contractual association of people in order to ensure justice. In Epicurus "for the first time there is an idea that the state rests on the mutual agreement of people ...". But if in the views of the philosophers of Ancient Greece we find only the beginnings of this theory, then in the works of a brilliant galaxy of thinkers of the XNUMXth-XNUMXth centuries. G. Greece, B. Spinoza (Holland), A. Radishcheva (Russia), T. Hobbes, J. Locke (England), J.-J. Rousseau (France) and others, it has received its full development. Supporters of this theory proceeded from the fact that the state is preceded by a state of nature, which they characterized in different ways. For Rousseau, for example, people in the state of nature have innate rights and freedoms; for Hobbes, this is the state of "war of all against all." Then, for the sake of peace and prosperity, a social contract is concluded between each member of society and the state being created. Under this agreement, people transfer part of their rights to state power and undertake to obey it, and the state undertakes to protect inalienable human rights, that is, the right to property, freedom, and security. The agreement of people, according to Rousseau, is the basis of legitimate power. As a result, each contracting party submits to the general will (the state), but at the same time becomes one of the participants in this will. Sovereignty belongs to the people as a whole, and the rulers are representatives of the people, obliged to report to him and replaced at his will. The theory of the contractual origin of the state does not answer the questions of where, when and how the social contract took place, who was its participant or witness. There seems to be no historical evidence to answer them either. In a word, this theory suffers from anti-historicism, but this does not deprive it of scientific value. She showed for the first time that the state arises (albeit due to objective reasons) as a result of the conscious and purposeful activity of people. This is in fact the first socio-political institution created by people, which has had and is having a huge impact on the life of individuals, groups, classes, and the whole society. It can be systematically improved, transformed, adapted to changing conditions. If we add to the above that the contractual theory laid the foundation for the doctrine of popular sovereignty, controllability, accountability to the people of all state power structures, their turnover, then it becomes clear that it is still relevant today. Hegel's doctrine of the state. A peculiar theory of the origin of the state and law was created by the largest representative of German classical philosophy G.V. Hegel (1770-1831). He argued that the basis of all phenomena of nature and society, and therefore the state and law, is an absolute spiritual and rational principle - the "absolute idea" ("world mind", "world spirit"). In his work Philosophy of Law, Hegel criticizes the theory of the contractual origin of the state from the standpoint of objective idealism. He recognizes the merit of Rousseau in that he saw the basis of the state in the general will, but Rousseau's mistake, according to Hegel, lies in deriving the general will from the will of individuals, while the will of the state is something objective, in itself a reasonable beginning, - independent in its basis from the recognition of the will of individuals. Being an objective idealist, Hegel deduced the state and law from the absolute idea, from the requirements of reason. He challenged the thesis of the supporters of the contract theory that the state was created by people to ensure and protect the freedom of the individual and property. According to Hegel, the state is not an insurance institution, it does not serve individuals and cannot be their creation. The state is the highest form of realization of morality. It does not serve anyone's interests, but is an absolute end in itself. In other words, the state does not serve, but dominates, it is not a means, but an end, an end in itself, the highest of all ends. The state has the highest right in relation to the individual, and the highest duty of the latter is to be a worthy member of the state. Hegel rejects popular sovereignty as the foundation of the state and the idea of democracy that follows from it. The supreme power, according to Hegel, cannot express the interests of the people, since the people not only do not know what the "reasonable will" wants, but does not even know what they themselves want. Thus, Hegel's doctrine of the state was directed against the theory of the contractual origin of the state, natural and inalienable human rights, and ultimately against the ideas and goals of the bourgeois-democratic revolution. In fact, the Hegelian formula "Everything that is real is reasonable" justified the feudal-absolutist system of the Prussian state. If the ideologists of the revolutionary bourgeoisie (Locke, Rousseau, and others) developed views on the state free from religion, then Hegel revived the religious and theological teaching about it in a refined mystical form. In his teaching, the state is portrayed as the embodiment of the highest moral values, he creates a genuine cult of the state, subordinating a person completely to it. The theory of violence (conquest) arose and became widespread in the late XNUMXth and early XNUMXth centuries. Its founders, L. Gumplovich, K. Kautsky, E. Dühring, and others, relied on well-known historical facts (the emergence of the German and Hungarian states). The mother of the state, argue the supporters of the theory of violence, is war and conquest. Thus, the Austrian statesman L. Gumplovich wrote: “History does not show us a single example where the state would arise not with the help of an act of violence, but in some other way. In addition, this was always the violence of one tribe over another, it was expressed in the conquest and the enslavement by a stronger alien tribe of a weaker, already settled population." Gumplovich transfers the law of animal life to human society, thereby biologizing social phenomena. According to him, a complex law of nature reigns over the actions of wild hordes, societies, states. K. Kautsky, developing the main provisions of the theory of violence, argued that classes and the state appear together as products of war and conquest. “The state and classes,” he wrote, “begin their existence at the same time. The tribe of victors subjugates the tribe of the vanquished, appropriates all their land and then forces the defeated tribe to systematically work for the victors, pay tribute or taxes to them. The first classes and states are formed from tribes soldered together by an act of conquest" F. Engels harshly and in many respects rightly criticized this theory, which exaggerated the role of violence and ignored socio-economic factors. In order for a state to emerge, a level of economic development is needed that would make it possible to maintain the state apparatus and produce appropriate military weapons. If such economic conditions do not exist, no violence by itself can lead to the emergence of the state. At the same time, it is indisputable that violence, conquest played an important role in the state-forming process. It was not the root cause of the formation of the state, but served as a powerful catalyst for this process. The Marxist theory of the origin of the state is best described in the work of F. Engels "The Origin of the Family, Private Property and the State", the very title of which reflects the connection between the phenomena that caused the emergence of the analyzed phenomenon. On the whole, the theory is notable for its clearness and clarity of its initial propositions, logical harmony, and undoubtedly represents a great achievement of theoretical thought. Marxist theory is characterized by a consistent materialistic approach. It connects the emergence of the state with private property, the division of society into classes, and class antagonism. Marxism expresses the essence of the question in the formula "The state is the product and manifestation of irreconcilable class contradictions." There is no reason to deny the influence of classes on the emergence of the state. But there is also no reason to consider classes as the only root cause of its appearance. As already noted, the state was often born and formed before the emergence of classes, in addition, other, deeper and more general factors also influenced the process of state formation. 4. Basic theories of the emergence of law The doctrines of the origin of law are usually closely related to the concepts of the origin of the state, although they contain a lot of specifics. Often the problems of law formation are considered in unity with the problems of its nature, essence, purpose of law and legal regulation. Theological theory proceeds from the divine origin of law as an eternal, expressing God's will and higher reason of the phenomenon. But it does not deny the presence of natural and human (humanistic) principles in law. Many religious thinkers argued that law is a God-given art of goodness and justice. Theological theory was one of the first to link law with goodness and justice, and this is its undoubted merit. However, the theory under consideration is not based on scientific evidence and arguments, but on faith. The theory of natural law (common in many countries of the world) is distinguished by a great pluralism of opinions of its creators on the issue of the origin of law. Supporters of this theory believe that in parallel there are positive law created by the state through legislation, and natural law. If positive law arises at the will of people, the state, then the reasons for the emergence of natural law are different. Until the beginning of the bourgeois era, the prevailing view was about the divine origin of natural law as supreme and immutable. With the advent of capitalist relations, many thinkers have ceased to associate natural law with the name of God. Thus, the most prominent representative of this theory, G. Greece, argued that the mother of natural law is the very nature of man, that it follows from the immutable nature of man. In a person, it manifests itself in the form of the voice of his conscience, a person learns natural law, referring to it. According to Voltaire, natural law follows from the laws of nature, it is inscribed in the heart of man by nature itself. Natural law was also derived from the eternal justice inherent in people, from moral principles. But in all cases, natural law is not created by people, but arises by itself, spontaneously; people somehow only know it as a kind of ideal, a standard of universal justice. In natural law theory, the anthropological explanation of law and the causes of its occurrence dominates. If law is generated by the immutable nature of man, then it is eternal and unchanging as long as man exists. However, such a conclusion can hardly be considered scientifically substantiated. The founders of the historical school of law in Germany in the XNUMXth-XNUMXth centuries. (G. Hugo, F. Savigny, G. Puchta) argued that law originates and develops historically, like a language, and is not decreed by the legislator. It follows from the "national", "people's" consciousness. The historical school of law merges with religious beliefs. So, G. Pukhta, argued that "right is from God, who has invested in the nature of nations the power to create law." The creator of the normative theory of law, G. Kelsen, derived law from law itself. Law, he argued, is not subject to the principle of causality and draws strength and effectiveness from itself. For Kelsen, the problem of the causes of the emergence of law did not exist at all. The psychological theory of law (L. Petrazhitsky and others) sees the causes of law formation in the psyche of people, in "imperative-attributive legal experiences." Law is "a special kind of complex emotional-intellectual mental processes that take place in the sphere of the individual's psyche." It seems that there is no reason to deny the influence of the psychological factor on the emergence and functioning of law, but there are even fewer reasons to consider the mental experiences of people as its root cause. The Marxist conception of the origin of law is consistently materialistic. Marxism convincingly proved that the roots of law lie in the economy, in the basis of society. Therefore, law cannot be higher than economics; it becomes illusory without economic guarantees. This is the undoubted merit of Marxist theory. At the same time, Marxism just as rigidly connects the genesis of law with classes and class relations, and sees in law only the will of the economically dominant class. However, law has deeper roots than classes; its emergence is also predetermined by other general social causes. 5. Correlation between society and the state Society and the state, their relationship is a cardinal problem for the science of the theory of state and law, which, despite its undoubted importance and relevance, has been poorly studied. For a long time, scientific thought made no distinction at all between society and the state. Only with the onset of the bourgeois era did scientists begin (although at first only terminologically) to separate the political state and society, civil society and the rule of law, to consider some aspects of their interaction. Marxism interprets the relationship between society and the state mainly from the point of view of the doctrine of the basis and superstructure. Society arose long before the state and for a long time did without it. The objective need for a state appeared as the internal structure of society (social stratification) became more complex, contradictions aggravated in it due to the mismatch of interests of social groups and an increase in the number of antisocial elements. Consequently, the state came to replace the obsolete tribal organization as a new form of organization of a changed and more complex society. The process of the emergence of the state was, apparently, semi-conscious, semi-spontaneous. The entire experience of world history proves that a society with a complex structure, torn apart by contradictions, is immanent (intrinsic) with a state organization. Otherwise, he is inevitably threatened with self-destruction. This means that the state is an organizational form of a structurally complex society, which here acts as a state-organized society. The state is a social institution of the whole society, it performs many functions that ensure the life of the latter. Its main purpose is to manage social affairs, to ensure order and public safety. The state opposes anti-social, destructive forces, and therefore must itself be a powerful organized force, have an apparatus (mechanism) of control and coercion. In other words, in its deepest essence, the state is a general social and constructive phenomenon, which is the reason for its great viability. It becomes political and class-based gradually, as classes and antagonistic relations develop in society. With the split of society into classes, with the emergence of class antagonisms, the economically dominant class subjugates the state. But even under these conditions, it performs, to a certain extent, constructive social functions. With the advent of the state, a complex and controversial history of its interaction with society begins. As a form of organization of society and a governing system, the state performs functions in the interests of the whole society, resolves the contradictions that arise in it, and overcomes crisis situations. However, sometimes it can also play a destructive role - to rise above society, to state it, that is, to penetrate into all public spheres, fetter them, weaken and destroy the social organism. But in general, the state moves forward along with society, gradually becoming more modern and civilized, while maintaining relative independence in relation to society. It is in the dialectical unity of the determining influence of society on the state and the relative independence of the latter that the essence of their contradictory interaction, which has a fundamental methodological significance, lies. Moreover, the degree of such independence of the state, for many reasons, can vary from minimal to excessive. The necessary and reasonable measure of it is ultimately determined by the objective needs of each historically specific society. The relative independence of the state and its organs is natural, necessary and socially justified. Without it, there can be no active and purposeful influence of the state, its apparatus on society as a whole or on individual public spheres. "The concept of "relative independence of the state", - emphasizes V.V. Lazarev, - is intended to highlight the features of the development and functioning of state forms, in contrast to economic and socio-cultural forms. This concept, finally, is intended to reflect the activity of the state in all spheres of public life. "The independence of the state is manifested in the freedom of choice when it adopts managerial and other acts, in choosing ways and methods for solving problems facing society, in determining the strategy and tactics of state policy. Are there limits to the independence of the state in relation to society? There are such limits, but they are also relative, mobile and evaluative. It is known that any society has numerous objective needs. If the policy of the state meets these needs, then its results will be approved by society. On the contrary, the activities of the state, contrary to these needs, can cause harm to society, cause crisis phenomena in it. The above means that the state has gone beyond the limits of its independence, its policy is becoming anti-social. Consequently, the independence of the state is balanced, limited by the control of society over its activities, as well as the assessment of this activity. The above concerns, first of all, civil society and the rule of law. Civil society as a system of social, socio-economic, socio-political associations of citizens (institutions, structures) operating on the basis of self-government, and the rule of law, where state power functions on a legal basis, within the framework of the law, are logically and essentially interconnected. The rule of law is independent to the extent that it serves the interests of civil society, which in turn stimulates the development of a democratic state and exercises flexible control over its activities. Relative independence is associated with the impact of the state on society and society - on the state. In this impact, the leading role undoubtedly belongs to society, which acts as the socio-economic basis of the state, which determines its nature, power and capabilities. Non-democratic (undeveloped) societies also correspond to undeveloped states, whose power is concentrated in executive-compulsory and punitive bodies. Such states often acquire strength that greatly exceeds the objective needs of society, gain excessive independence, become the center of political, economic and spiritual life, rise above society. Omnipotent uncontrolled power is concentrated in the hands of the dictator and his entourage or group of people. This is how tyrannical dictatorial states were formed, and in the modern era - authoritarian and totalitarian states. A democratic society corresponds to a democratic (developed) state that ensures the integrity of society, the order and organization of public life on the basis of material and moral incentives and methods, and in which bodies and institutions of a constructive and creative nature are fully developed. A civilized civil society provides a democratic procedure for the formation of the most important state bodies, exercises flexible control over their activities on the basis of law and law, and ultimately puts at the service of itself and the person the entire creative potential of the rule of law. The impact of society on the state is considered to be a direct link, and the impact of the state on society is the reverse. The multifaceted feedback impact of a developed state on society is a key but insufficiently studied problem, the main thing in which is the relationship between conscious state-legal regulation of socio-economic life and spontaneous market self-regulation. With the help of conscious state-legal regulation, market self-regulation is limited in a certain way. Otherwise, it will inevitably develop into a market element. But the market element and the market economy are far from the same thing. Hence the complex and important problem - to find a more or less optimal ratio between targeted regulation and market self-regulation. But this ratio is by no means constant. In every country and at every time it is mobile and depends on numerous causes and conditions. So, in the 20-30s. destructive crises and protracted depressions, provoked by the elements of the market, brought to the brink of death many previously powerful bourgeois powers. And one of the first who put into practice the theory of D. Keynes about the need for flexible state intervention in the economy, who realized that the market is not a perfect economic mechanism, was US President F. Roosevelt. In 1933-1938. his administration implemented a set of state-legal measures aimed at balancing conscious regulation and market self-regulation, which entered American history under the name "New Deal". Many other states have followed this path. Around the same time, another trend began to be traced in the USSR. Here, the economic potential of the country has almost completely become an object of state ownership. Society gradually turned into a single "state factory", controlled from the center by command and bureaucratic methods. At the same time, it was a rather strong state that solved major problems under extreme conditions: a powerful industrial economy was created in a historically short period of time, public education and science were successfully developing, and the military-industrial complex occupied leading positions in the world. However, total nationalization fettered the living creative forces and opportunities of society, which was facilitated by weak motivation to work and chronic mismanagement, complemented by the subjectivism and voluntarism of the party-state elite. These factors gave rise to a systemic crisis that engulfed all spheres of society. The way out of the crisis was very difficult. For several years now, the country has been searching for ways to balance market and state-legal mechanisms. But the extremes and mistakes allowed, the inability and unwillingness to draw conclusions from them still hinder finding optimal solutions. 6. Society and law Law arises as a result of the objective need of a more complex, internally contradictory society. With its regulatory influence, it ensures organization, stability and legal order in society. Having arisen due to objective reasons, law begins to actively interact with society. In this interaction, the leading role undoubtedly belongs to society, which determines the content of law and decisively influences its development. Therefore, law cannot be higher than the achieved economic and spiritual level of a given society and develops along with it. At the same time, law absorbs everything socially valuable from the customs that prevail in society, morality and religion, absorbs the achievements of world culture and civilization. As a result, it acquires significant independence in relation to society and gets the opportunity to actively influence it. With the help of law in society, the necessary legal order is ensured, social conflicts and contradictions are resolved. In a word, law serves as a kind of hoop that keeps society from self-destruction. Law as the art of goodness and justice, the embodiment of the achievements of world culture and civilization, brings information about the good and fair to society and constantly nourishes it with humanistic ideals and values. At the same time, it drives out of society alien attitudes and habits. Law serves as a measure of public and personal freedom. Just as there are no rivers without banks, in the same way there is not, and cannot be, immeasurable, boundless freedom. Freedom without borders is self-will, permissiveness, lawlessness, that is, the denial of freedom. Within the boundaries of law, legal norms, people, their associations and organizations can freely act and act at their own discretion. Legal norms perform an important and necessary function of coordinating the various interests of people, their associations, large and small teams, as well as finding and making agreed, compromise solutions. Law does not supplant other social regulators, it is an essential element in the unified normative system of society, it becomes the regulator of the most important (commodity-money, etc.) social relations. In a society split into classes, torn apart by irreconcilable contradictions, law is the spokesman and conductor in the life of the will of the ruling oligarchy. Under such conditions, its humanistic ideals and values fade, it acquires despotic and tyrannical features. On the contrary, in a democratic society the role of law and legal regulation immeasurably increases, and its humanistic potential is fully realized. Thanks to law and legal procedures, the broad masses of the people get access to material and spiritual benefits, to the mechanisms of power, legal forms of expression of will and realization of their interests. A society permeated with legal principles acquires the quality of a legal one. 7. Man, state and law Ideally, the state should serve a person, create all the necessary conditions so that he can develop and show his abilities and talents to the maximum, because a person is the highest of all world values, the measure of all things. In reality, the relationship between the individual and the state is much more complex and highly contradictory. For centuries, relations of alienation and enmity have developed between man and the state. For the slave and the subject, the slave-owning and feudal state acted as an alien and hostile force. They had no rights and freedoms, but only had obligations to the state and therefore could not become individuals. With the advent of the era of capitalism, the relationship between the individual citizen and the state changes dramatically. A citizen becomes a bearer of rights and freedoms, which give him an autonomous status independent of the state. The state is obliged to protect and guarantee these rights and freedoms. The development of civil rights and freedoms was greatly influenced by the liberal democratic doctrine, which focused on the personal aspect of democracy, on the inviolability of inalienable human rights and freedoms, on limiting state interference in a person’s personal life, on a person’s ability to file a complaint against the state and its bodies to an independent court. True, there are no grounds for idealizing the relationship between the citizen and the capitalist state. And here anti-democratic (fascist and authoritarian) regimes arose that turned a person into an appendage of the state machine; the state does not always protect a person from poverty, social and national discrimination. In the Soviet state, measures were taken to provide workers with significant socio-economic rights, but in general, the legal status of a person was largely curtailed and poorly protected. The Stalinist totalitarian regime assigned a person the role of a cog in the state machine, made him completely defenseless before the state. And in the post-Stalin period, the interests of the state were placed above the interests of the individual. The judicial protection of personal rights and freedoms was weak. And yet it is impossible to say that the Soviet state did not care about man, about the development of his spiritual and physical strength. Free education, medical care, physical culture and sports, confidence in the future - all this and much more was a reality. The Constitution of the Russian Federation enshrines such relationships between the individual and the state, which generally correspond to the modern understanding of democracy. In a democratic state, power authorities are necessary to ensure that any person is protected from arbitrariness and violence, feels his dignity, and acts as a full partner of the state. In other words, the full power of the state must ensure the protection and protection of the rights of the individual. The Constitution emphasizes that the generally recognized principles and norms of international law and international treaties of the Russian Federation are an integral part of its legal system. Therefore, state bodies and officials are obliged to build their activities in accordance with them. However, with the adoption of the Constitution, the gap between the wide range of human and civil rights and freedoms enshrined in it and the degree of their guarantee and protection of the individual has increased. This gap will be eliminated, and human rights and freedoms will become real only after society emerges from the crisis in the economy, politics, and spiritual life. Chapter 6. State-legal impact on the economy, politics and culture 1. State-legal impact on the economy As an object of state-legal influence, the economy is a complex and developing phenomenon. Archaeologists have found that around the XNUMXth-XNUMXrd centuries. BC e. in the life of mankind there has been a transition from an appropriating to a producing economy. For the appropriating economy (hunting, fishing, gathering fruits of wild plants), it is characteristic that nature itself acts as a producer. Human consumption products are not produced, but mined. True, in order to get an animal or catch a fish, fishing gear was needed, which needed to be made, produced. Thus, some elements of production are also characteristic of the appropriating economy. A productive economy meant a qualitative leap: with the advent of agriculture, cattle breeding, and handicrafts, a person, or rather, his labor, is increasingly becoming a producer of consumer products, gradually acquiring the features of a defining element of the production process. Productive labor brought to life a new type of social relations - economic. In a productive economy, human labor is organically combined with the action of natural forces. Nature operates in artificial, man-made conditions. The rational force of a person is "embedded" into the system of acting natural forces, which is a catalyst for their effectiveness. The natural process becomes an element of human production activity. The economy is a system of relations for the production, distribution, exchange and consumption of material goods. The cycle of economic relations begins with the production of material goods and ends with their consumption. Relations associated with the distribution and exchange of manufactured products are of an intermediate nature. The formation of economic relations gave rise to new institutional forms of their consolidation, stabilization, development. The state and law are socio-political institutions brought to life by the economy, the needs of its development and regulation. Economics has closer ties with law, so we first consider the impact of law on the economy. First of all, it must be emphasized that law is the most adequate form of economic relations. The latter can function normally only and exclusively in a legal form. All other forms (traditional, religious-moral, directive-state) are not optimal, because they do not meet the needs of a market economy, distort or simply reject market principles as immoral, anarchic, contrary to the spirit of the people, etc. Thus, law is not something external to the economy. Law is a natural form of economic relations. Economic relations, like any other social relationships, can function stably if they are fixed in a normative form. We have already noted that the normative forms are diverse, but among them only the legal one (this is shown by historical experience) is the most consistent with the essence of economic relations, their market nature. A single legal basis for all relations of the economic cycle is the right of ownership. At the same time, human labor is the main object of property in the sphere of economics. In this regard, things, money, securities and other objects of economic turnover have value not in themselves, but as carriers or signs, symbols of a certain value, labor embodied in them. Things as objects of property rights are secondary, they are carriers of materialized labor that gives them value. And most importantly: the exchange of labor activity, the results of labor (things, money, etc.) is carried out on the basis of private law between equal owners. State intervention in these relations can be positive if the violated rights of one of the parties are protected through such interference, and negative if the freedom of the owner, i.e., his rights, is limited. Law is a way of self-regulation of the economy. The economy as the production of goods and services has an objective content. This content is determined, on the one hand, by the nature of the needs of the population, and, on the other hand, by the level of development of technology, labor productivity, and natural conditions. But how, how does an individual producer get the information about what needs to be produced? Such questions do not arise under the conditions of the traditional, subsistence economy characteristic of feudalism. The regulatory function of law is not needed here either. In a market economy, the situation is different. The price in the market of goods and services is regulated by the ratio of supply and demand. But for this, all owners must be legally free, that is, they must independently decide what to produce, in what quantity, and at what price to sell. Legal freedom is a necessary condition for identifying economic necessity. It enables the manufacturer to hear market signals and take them into account. The producer himself regulates the economic aspects of his activities and does so by right and thanks to the right by which his freedom is secured and protected. So, law does not just affect the economy, it is an immanent part of it. Moreover, there is reason to believe that the formation of law as a regulatory system ends with the advent of a developed market economy. This happened in Europe in the XNUMXth century. and was expressed in the formation of the Anglo-Saxon and Romano-Germanic legal systems. The impact of the state on the economy is different. If law affects the economy, so to speak, from within, being the optimal form of the economy and the only possible form of a market economy, then the state provides the external conditions for its functioning. First, the state performs the function of protecting the country from attack from outside and thereby protecting the economic space within the country. Secondly, it ensures the unity of society and its relative stability in conditions when society breaks up into classes and social strata with different, sometimes opposing interests. The internal unity and stability of society is also a necessary prerequisite for the normal functioning and development of the economy. Thirdly, the state also acts as a subject of economic relations, taking on some economic functions that ensure the integrity of the country's economic system. For example, from time immemorial, the state takes care of money circulation, has a budget, finances education, culture, etc. Fourthly, with the complication in the course of the historical development of economic relations, the state intervenes more and more actively in economic life in order to prevent the negative trends that arise in a market economy. Thus, in the developed countries of the West, state regulation in the sphere of the economy is recognized as useful and necessary. In this case, we are talking not just about the state, but about the state-legal impact on the economy using public law. The directions of such influence are diverse: - fight against monopoly; - control over the quality of products in terms of their safety for the life and health of consumers; - compliance with environmental requirements in the production process, etc. When the impact of the state on the economy is excessive, it becomes negative, because it interferes with its free functioning and development. The extreme manifestation of such an impact is the nationalization of the economy, in which the state becomes the main owner of the means of production and takes over the management of the economy. The fallacy of such a system is as follows. First, the state "turns off" the operation of automatic mechanisms for coordinating the demand and supply of goods and services, i.e., the interests of the consumer and the producer. In a market system, the entrepreneur produces what the consumer needs. Otherwise, he will be ruined. In other words, the consumer dictates what and how much to produce. The state-owner takes this function for itself, carrying out production planning. The opinion of government officials about what society needs, the consumer, becomes decisive for the manufacturer. The collective mind of officials of the state apparatus, which does not correspond to the collective desire of consumers, gives rise to disproportions in the social economy, i.e., the production of products that no one needs and a shortage of what is needed. Secondly, the nationalization of the economy gives rise to a lack of economic responsibility of enterprises, plants, and factories. Economic results are not of particular importance to them, because the state takes profits from profitable enterprises, and provides the necessary financing to unprofitable ones. No company can go bankrupt. Only the state as a whole can go bankrupt. However, if the country is rich in natural resources, it is not so easy to reach this line. The state is an organization that only spends without producing anything. Of course, it performs useful functions that society cannot do without. Their costs are, so to speak, the normal cost of public services. But the state, using its power, can impose an excessive tribute on society, and then the costs become a heavy burden on the economy and hinder its development. The most typical excessive costs are the militarization of the economy, the maintenance of a huge army, a large apparatus of officials, etc. Indicators of exorbitant government spending are direct and indirect taxes that rob the population and stifle the economy, rapid inflation and other negative phenomena. Thirdly, the excessive influence of the state on the economy is expressed in the excessive administrative regulation of economic relations. This infringes on economic freedom, leads to corruption of the state apparatus, to the emergence of a shadow economy. The dominant position of the state in the economy gives it some advantages. The main one is the ability to very quickly and freely concentrate all the necessary resources (material, financial, labor) to solve certain major problems: the production of weapons, the development of virgin lands, the construction of new cities, the maintenance of giant industrial construction projects, the implementation of space projects, etc. But the shadow side of such "achievements" is the decline in the living standards of the population, the lack of democracy, the lack of rights of the individual, the neglect of the environment, etc. At the end of the XNUMXth century, humanity faces the problem of how to organically combine the market economy, social policy and ecology. In a civilized society, the economy must be social and environmentally friendly. Such a transformation of the economy is possible only with the positive impact of the state and law on it in conditions where the highest value in society is the dignity and rights of a person and the rule of law is functioning. 2. State-legal impact on politics Politics is a phenomenon and concept that is broad in scope and complex in content. Everyone comes into contact with it in one way or another, and, consequently, everyone has this or that idea of what kind of phenomenon it is. Real politics can be carried out at different levels and on different scales: in a district, city, region, republic, country as a whole. Politics can be federal and regional, local, internal and external, dictatorial and democratic, popular and anti-people, etc. In terms of state-legal influence, we are primarily interested in politics on a national scale, nationwide politics. It can be briefly defined as a strategic course for the development of the country. There are three main types of policy activities: - development of a strategic course (policy); - choice of strategic course; - implementation of the chosen strategic course. In the developed countries of the West, parties are engaged in the development of a strategic course. Then voters, voting for this or that party, carry out a choice of a political course. Finally, the party that wins the election forms the government and implements its program through the mechanism of state power. The foregoing makes it possible to determine the optimal variant of the state's influence on politics. The development and choice of a political course is carried out by society, while the state acts as an effective tool for implementing policy with the help of the apparatus of control and coercion, through the legislature and justice. However, this is possible only in a developed civil society, where there is economic, political and spiritual freedom. If we look at the relationship between politics and the state in historical terms, as well as in modern non-democratic states, which are still the majority in the world, it turns out that the interaction between politics and the state is still far from optimal. In countries with an undeveloped civil society, the main deviation from the optimal variant of the division of functions in politics between parties, people and the state is that the state dominates, dominates in the sphere of politics, i.e., not only implements, implements the political course, but also carries out the choice of this course and develops it, thereby infringing on the political rights and freedoms of a person. In the history of society, the state was the first instrument, an instrument of politics, that is, politics appeared with the emergence of the state. And only gradually other social institutions are being formed: unions, public organizations, parties that have begun to participate in political life, to influence the development and implementation of policies. Together with the state, they began to constitute the political system of society. This process can be called the formation of civil society in the sphere of political life. In a free democratic society, the people are the subject of political power, and the institutions of civil society are the main means of its implementation. Through the institutions of civil society (parties, social movements and organizations, the electoral system), the state apparatus is controlled, which is the main instrument for implementing policy. So, the impact of the state on politics can be different depending on the degree of development of civil society and its institutions. The more political functions the state assumes, the less of them remains for civil society, and vice versa. Historically, civil society is gradually formed, strengthened, and the state, as far as this, cedes to it such political functions as the development of political programs, the choice of a political course. This process takes place in struggle and contradictions. The state is not just an apparatus of power, it is also a class of officials with their own interests that do not coincide with the interests of society as a whole. Of course, the layer of managers usually does not feel the desire to transfer any of its power functions to civil society, to the people. The content of the policy, that is, the issues on which the strategy of action is developed, is diverse: the economy, issues of war and peace, social, national, environmental problems, the constitutional system, the territorial structure of the state, the improvement of legislation, etc. It is obvious that politics - business of the whole society, and not just the supreme power. The state, as the bearer of sovereign power, is responsible for the implementation of the political course in all directions and acts by governing and coercion. The success of these actions depends on how much the implemented policy meets the interests of society, how much society is in solidarity with the authorities. Law influences politics in several ways. First of all, through public law (constitution and constitutional laws), the political system of society, the mechanism of the functioning of the political system (suffrage, parties and their status, separation of powers, etc.), political freedoms of citizens are fixed. As a result of the impact of law on politics, all types of political activity are carried out as the rights of the relevant subjects, and not as a manifestation of their strength, authority or other qualities. Further, the law gives legitimacy to political decisions, as well as to public authorities. Legitimacy provides the authorities with the support of the population even if they make unpopular decisions. Opposition to the authorities is considered unacceptable, illegal. And, finally, the law provides, guarantees the political freedoms of a person, their implementation. 3. State-legal impact on culture The state and law are in a complex and ambiguous interaction with culture. The term "culture" is ambiguous. The most important are the following values: - this is a historically defined level of development of society, the creative forces and abilities of a person, expressed in the types and forms of organizing the life and activities of people, in their relationships, as well as in the material and spiritual values \uXNUMXb\uXNUMXbcreated by them. Distinguish between material and spiritual culture, and in a narrower sense, this term refers to the sphere of the spiritual life of people; - this is the level, degree of development of any branch of knowledge or activity (political culture, legal culture, culture of speech, etc.); - this is a characteristic of certain historical eras (the culture of the ancient world, etc.), peoples or nations (for example, Russian culture); - the degree of social, mental and moral development of someone (for example, the culture of police officers). In its most general form, culture is everything that is created by man, has a basis in the spirit of man, is the result of his creativity. Both the state and law should be attributed to such values. Moreover, the emergence of the state marked a leap in the development of culture - the transition from barbarism to civilization. The foregoing means that the state has had a particularly profound impact on culture and its development. It should be noted that the recognition of the state as a cultural value was asserted with difficulty. And not only the ideologists of Marxism are "guilty" here, who saw in the state (as well as in law) only a social evil that should disappear, move, in the words of F. Engels, to the museum of antiquities along with a spinning wheel and a bronze axe. Considerable "merit" in the treatment of the state belonged, for example, to the religious thinkers of pre-revolutionary Russia. So, N.A. As early as 1907, Berdyaev interpreted the state as one of the temptations of the devil, arguing that the human person is sacrificed to the state. Of course, the stated assessments of the state were not accidental. They are explained by the fact that coercive force most often turned against the individual, limited and infringed on his freedom. The managerial nature of the state and its function of ensuring the integrity of society remained in the shadow. The state as a power structure acted where civil society and a developed legal system would later operate. Neither K. Marx nor V.I. Lenin, nor N.A. Berdyaev did not foresee this, history convincingly refuted their forecast about the withering away of the state. In the second half of the XX century. in a developed civil society, the value of the state as a cultural phenomenon increases. The state is increasingly becoming a factor in the formation and protection of human freedom, the development of its material and spiritual culture. The state takes care of the education of the younger generation, promotes the development of the general and professional culture of its citizens. In addition, the state guards and protects the cultural values accumulated by mankind. The state has the greatest influence on the political culture, the bearers of which are society, parties and political leaders, citizens. The development of political culture, in turn, forms the most important prerequisite for the development and normal functioning of the political system of society, all branches of state power. The state also takes care of the development of spiritual culture, supporting and financing libraries, museums, theaters and other cultural institutions. Law creates optimal conditions for creativity, for the creation of cultural values, for the cultural development of man. For example, in Part 2 of Art. 44 of the Constitution of the Russian Federation it is written: "Everyone has the right to participate in cultural life and use cultural institutions, to have access to cultural values." On the basis of law, a special layer of culture is formed - a legal culture, the carriers of which are society as a whole, state bodies and officials, social groups, politicians, citizens. For Russia, the development of a legal culture is an urgent problem, because for centuries in our country there was widespread disregard for the law, which took an extreme form in the Soviet period, called legal nihilism. Chapter 7. State and law in the political system of society 1. General characteristics of the political system of society The political system of society is a system of interconnected and interacting associations (organizations) of people based on various forms of ownership, reflecting the interests and will of social classes, strata, groups and nations, exercising political power or fighting for its implementation within the framework of law through the state. The components of the political system are: a) a set of political associations (the state, political parties, socio-political organizations and movements); b) political relations that develop between the structural elements of the system; c) political norms and traditions that regulate the political life of the country; d) political consciousness, reflecting the ideological and psychological characteristics of the system; e) political activity, covering the actions of specific people as representatives or members of political associations. Using various methodological techniques (approaches), it is possible to identify a number of criteria that allow substantiating and deciphering the above definition of a political system. From the standpoint of the genetic approach, the objective conditionality of political phenomena by economic and social factors is of great criterion importance. The criterion of economic determination of policy is manifested primarily in the relations of property and production, and, on the contrary, the reverse influence of politics on the economy is most possible in relations of distribution and management. The criterion of social conditionality of political phenomena indicates that they are the result and means of social development. Any political phenomenon is inseparable from people. People, as concrete material and spiritual beings with reason, create political ideas, develop political norms, establish connections between themselves, that is, it is people who create politics, and not some abstractions. The criterion of social interest reveals the relationship of the political system and its elements with certain social groups, strata, classes, nations. The needs and interests of these groups, strata, etc., are the decisive motivational factors in the formation of political organizations. The institutional approach makes it possible to designate stable and real characteristics of political phenomena in time and space. The essence of this approach reflects an organizational criterion designed to show that individual individuals themselves cannot act as elements of a political system. People are born as socio-biological, but not political beings. In this regard, they represent the "material" from which, under appropriate historical conditions, in the presence of certain social qualities, the elements and the system as a whole are formed. Such conditions are the processes of division of labor, the formation of property unequal social strata, groups and classes, and the qualities are universal, class, group, national solidarity. A materialistic understanding of historical processes leads to the conclusion that in reality the "political" naturally requires organizational formalization. We can say that the organizational criterion characterizes to a certain extent the social forms of movement of the material, human basis of the political system. The political in its development becomes real, tangible only in specifically materialized forms, institutions, institutions (the state, parties, movements). And the individual acts in the form of a citizen, deputy, member of a party, organization. A systematic approach to the study of political phenomena makes it possible to present them as an integral system capable of influencing its structural elements and interacting outside - with society, other political systems, with the outside world. The system criterion makes it possible to single out such qualities of the political system and its components as hierarchical structure, homogeneity of elements, institutional compatibility, the presence of various connections, the conditionality of elements as a whole, the autonomy of their behavior. The main criterion characterizing the dynamics and statics of the system itself is its integrity, since the development of the system is a process of achieving integrity. The substantive (essential) approach helps to identify the fundamental principle of everything political, what all political phenomena (ideas, norms, relations, processes, institutions) are based on. The meaning of the concept of "substance" in various branches of science is not the same. In chemistry it is an element, in biology it is a living protein, in political economy it is labor, in philosophy it is matter. In political science, political power is considered as a substance, and the political system is considered as a mechanism for its implementation. The essential criterion (power) is a cross-cutting one for the political system at all stages of its existence, regardless of economic, geographical, religious, national and other factors. Political power can be characterized as a system of strong-willed relations of class society, which are determined by the interests of social strata and classes, expressed in the activities of political organizations. It has several levels of functioning and implementation. First, it is the power of specific political associations (political parties, socio-political organizations and movements). It is implemented through their organizational governance structures. This - institutional - level of political power is the most visible and real. Secondly, it is possible to designate a coalition level of power, reflecting the totality of power aspirations or several socially homogeneous political organizations, or a bloc of political organizations, or a bloc of parties and associations that reflect the interests of various social communities. In such a case, power is exercised through temporary or permanent bodies such as round tables, councils of parliamentary factions. Thirdly, it seems necessary to single out the general political level of power. Here are concentrated the results of the political consensus reached in the course of rivalry and cooperation of various political forces. If such results are reflected in legal acts, then political power coincides with state power and is exercised by the state. In other cases, it is implemented through political bodies, as a rule, of a multi-temporal nature (conferences of national accord, popular, domestic fronts, etc.). A concrete historical approach, depending on the spheres of society's life, allows us to single out socio-economic (types and form of ownership of tools and means of production, the nature of labor, the basic principles of management), socio-structural (the presence or absence of certain classes, strata), socio-cultural (the level of education of the population, the reality of the comprehensive development of the individual), political (the reality of self-government of the people, the class affiliation of political power), legal (the range of democratic rights and freedoms of citizens enshrined in the law, the availability of guarantees for their implementation, the legitimacy of political power, the state of law and order) criteria . Thus, the polystructural nature of the real world, human society determines the variety of relevant criteria, and the understanding that political phenomena in their totality constitute a system characterized by constant movement predetermines their complex and dialectical use. Political systems "live", function in time and space, as they represent one of the main forms of movement of social class matter. They can be classified according to various bases. In particular, depending on the political regime, democratic and totalitarian political systems are distinguished. From the standpoint of Marxist theory, having the category "socio-economic formation" as the basis for classification, the political systems of slave-owning, feudal, bourgeois and socialist society are singled out. Accounting for geographical, territorial factors allows us to speak of European, Asian, North American and other regional systems. National, religious, linguistic, common and special features predetermine the characteristics of Arab, Hindu, Muslim and other political systems. Within the political system of a particular society, its structural elements can also act as peculiar political systems-formations: the state, political parties, socio-political associations. 2. Patterns of development of the political system of society Characteristics of the development of the political system (including aspects of the emergence, functioning, structure and immediate development) through the prism of criteria means the initial stage of the categorical level of knowledge of this process. Here the fixation of quantitative and qualitative changes, the transition from lower to higher forms of movement is ensured, the correspondence of theoretical positions to historical practice is checked. The next stage involves a more in-depth study of this process, namely: the isolation and classification of the patterns of development of the political system of society. The patterns of development of the political system are objective, stable, recurring connections that characterize the essential unity and dynamism of political phenomena at various stages of life. Ultimately, they are the objective results of the subjective socio-historical activity of people, lining up through many accidents and deviations into specific sustainable trends. The political system, like any complex phenomenon, consists of opposite sides that are in a relationship of contradiction. The resolution, overcoming of such contradictions is the internal source of its self-development. Of great importance for the development process are internal contradictions of an objective nature, immanent in any political system. The resolution of such contradictions does not mean their elimination by eliminating one of the opposite sides, but the acquisition by the latter each time of a qualitatively new, higher form of movement. An example is the activity of a democratic state to overcome one of the main contradictions of class society - between the state and the citizen. As it develops, the state, under the influence of democratic institutions of civil society, creates a set of political and legal institutions and regulatory regimes that ensure the freedom and development of the individual. This is reflected in constitutions and other legal acts. There is a constant struggle to change the balance between the needs of citizens in self-government and counteraction to this by the bureaucratic apparatus of the state in the direction of increasing the degree of participation of the masses in the management of state affairs. Contradictions of a subjective nature, caused by the discrepancy between the ideological and political, psychological and legal attitudes of individuals, organizations with morality, law and order prevailing in society, are resolved either by destroying, eradicating negative manifestations, or by reaching a consensus between the parties concerned. The emergence and resolution of contradictions in the political sphere of the life of society is a real process that correlates with temporal, spatial and other parameters of the internal and external order. This is a process that causes the crystallization of the patterns of development of the political system. Among all the diverse bases for the classification of political patterns developed by science, such criteria as institutionality, depth and universality of their historical action, and class essence are of the most general importance. They make it possible to distinguish general historical patterns that operate within the framework of the political history of mankind and characterize the past, present and future of political forms of the movement of social class matter in general. This is the conditionality of political phenomena by economic and social-class factors; strengthening the political structure of society; interaction of political and legal institutions; increasing the role of law in society, etc. Interformational patterns are inherent in two or more socio-economic formations. For example, political systems of all types are characterized by social class, interethnic, racial conflicts and transitions from one type of system to another through social revolutions, coups in a peaceful and non-peaceful way. The peaceful coexistence of various types of political systems is natural in the conditions of the nuclear age. According to Denis Shevchuk, patterns within the same socio-economic formation reflect the essential, stable connections of political systems of the same type. The political systems of bourgeois countries are characterized by: regimes of pluralistic democracy, separation of powers, two- or multi-party system. For the political systems of the socialist countries, the establishment of the dictatorship of the proletariat and the leading role of the proletarian party, the bureaucratization and merging of the party and state apparatus, the declaration of democracy and self-government, etc., act as regularities. In the political system of a particular society, one can single out system-wide patterns that characterize the system as a whole, and intra-organizational patterns that express the links between its structural elements and components. These are the inevitability of the economic integration of all the constituent parts of the system, the conditionality of the formation of political parties by the social stratification of society, the continuous growth and bureaucratization of the state apparatus and the constant struggle for its reduction, etc. In doing so, keep in mind the following: - firstly, the named regularities (general historical, interformational, formational) are somehow refracted in their own regularities of a particular political system; - secondly, the laws of individual elements and components of the system cannot contradict the system-wide laws, but their interaction does not develop only on the basis of the ratio of the part and the whole, but expresses a complex dialectic of various horizontal and vertical, internal and external links. 3. The state in the political system of society In historical terms, the state can be considered the first political organization. It is natural that the term "politics" and the words derived from it originate from the word "policies", which the ancient Greeks used to designate their city-states. Different peoples of the state arose in different ways, at different stages of development, in different historical periods of time. But common to all of them were such factors as the improvement of the tools of labor and its division, the emergence of market relations and property inequality, the formation of social groups, estates, classes, people's awareness of common and group (class) interests. The state became the first, but not the last and not the only political organization of class society. Objectively established human relations gave rise to new political forms of the movement of social matter. History shows that along with the state and within its framework, various kinds of non-state associations arise, reflecting the interests of certain classes, estates, groups, nations and participating in the political life of society. For example, Aristotle mentions the parties of the mountains, the plains and the coastal part of the city of slave-owning Athens. In the conditions of a feudal society, various associations of owners - communities, guilds, workshops - exerted a significant influence on the exercise of political power. A special role in this regard was played by church institutions, which acted as the organizational and ideological support of the ruling classes. In bourgeois and socialist society, in addition to the state, there are various kinds of political parties, trade unions, women's and youth public associations, organizations of industrialists and farmers, reflecting in their activities the interests of certain social forces and influencing politics. And yet the state occupies a central place in the political and social life of any country. The foregoing is due to the following. 1. The state acts primarily as an alternative to the fruitless struggle between various social groups, strata, classes with their conflicting interests. It prevented the self-destruction of human society at the earliest stage of our civilization and prevents it today. In this sense, it "gave life" to the political system of society in its modern sense. At the same time, none other than the state, throughout the history of mankind, plunged its subjects a thousand times into internecine and regional armed conflicts, wars, including two world wars. In some cases (as an aggressor), the state was and is an instrument of certain political groupings, reflecting the interests of the ruling strata, classes of society. In other cases (as a defender), it often expresses the interests of the whole people. 2. The state can be viewed as an organizational form, as a union of people united for living together. Historical, ideological, socio-economic ties between individuals and the state receive a concentrated expression in the political and legal category of citizenship. Each of the members of the "state community" is interested in its existence, since personal independence and freedom in communicating with fellow citizens, the protection of the family and property, and the guarantee of security against intrusion into private life from the outside are provided by the state. As a citizen, an individual acquires stable primary political qualities, which become the basis for his participation in the political life of the country, in the activities of socio-political associations and movements, political parties, etc. In other words, first of all, through the state, the individual "is included" in the political system of society . At the same time, there is a complex of contradictions between the state and individual citizens (regardless of which class they belong to), which is generally characterized as one of the main internal contradictions of the political system of society. These are contradictions between democracy and bureaucracy in the sphere of legislative and executive power, between trends in the development of self-government and the limited possibilities for its implementation, etc. These contradictions become sharply aggravated when the state pursues a pronounced class, national, racial policy in relation to citizens who do not belong politically. dominant social groups. 3. Among the factors that led to the emergence of the state, an important place is occupied by the social class stratification of society. It follows that the state is the political organization of the economically dominant class. And yet, the Marxist-Leninist characterization of the class essence of the state as an organ of suppression correctly reflects only a special state in the development of society, when such class tension arises in it (caused, as a rule, by military conflicts, an economic and spiritual crisis), which is capable of blowing up society, leading him into a state of chaos. In the usual normal periods in a class society, general social ties prevail, stronger and more creative than class antagonisms. The thought of F. Engels that in the real world metaphysical polar opposites exist only during crises, that the whole great course of development takes place in the form of interaction, remains worthy of attention. The state, by virtue of its social purpose, cannot be constantly functioning in the regime of domination and violence. As history testifies, the activities of states of this type (despotic, authoritarian) have their own time limits, which, as civilization develops, are increasingly narrowed. The class character of the state connects it with other political phenomena. Therefore, the state and the political system as a whole face the same tasks: to introduce the class struggle into the mainstream of a civilized political struggle based on the principles of democracy and law; to direct the efforts of the opposing strata, classes and their political organizations towards a constructive solution of general social, and therefore, at the same time, class problems. 4. The state was the first result of the political activity of people, organized in some way and representing the interests of certain social groups and strata. This led to his claims to the universality of the coverage of political phenomena, and the signs of territoriality and public authority made the significance of the state as a form of political hostel of various social and national entities, as well as various organizations and parties expressing their interests, real. Statehood is a form of existence of a class society. In this regard, the state plays the role of a supra-class arbitrator. By law, it establishes the "rules of the game" for political parties and public associations, tries to take into account in its policy the range of their diverse, sometimes antagonistically conflicting interests. A democratic state seeks to ensure not only a normal peaceful political coexistence, but also a peaceful change of state power, if such a historical need arises. The state as a form of political community in terms of territory coincides with the political system of society. According to the content and functional characteristics, it acts as an element of the political system. 5. The state is the most important integrating factor that links the political system and civil society into a single whole. By virtue of its social origin, the state takes care of common affairs. It is forced to deal with general social problems - from the construction of homes for the elderly, communication devices, transport arteries to energy, environmental security for future generations of people. As the main owner of the means of production, land, its subsoil, it finances the most capital-intensive branches of science and production and bears the burden of defense spending. As a body that manages public affairs, the state through the apparatus, material appendages (police, prison, etc.) maintains a certain integrity of the political system, ensures the rule of law in society. Of course, a lot of contradictions arise here, which can be conditionally reduced to an exaggerated understanding of the role of the state in the life of society and downplaying the importance of the individual. Therefore, only that state can be considered social and democratic, in which conditions are created for the realization of human rights and freedoms. For the political system of society, the sovereign nature of state power has an important consolidating value. Only the state has the right to act inside and outside the country on behalf of the people and society. The entry of the political system of a particular society into the world political community will largely overestimate the realization of the sovereign qualities of the state. 6. The political system due to the mobility of economic, social and class relations, ideological variability! and the psychological aura is in constant motion. All its elements and components work, as it were, equally, linking and coordinating the interests of social groups, and developing political decisions. When emergency social situations arise (natural disasters occur, the form of government or the political regime changes), a special role in resolving them is assigned to the state. Moreover, in this case, we are talking not just about the state, but about its substantial manifestation - state power. Only legitimate state power can ensure a relatively painless and bloodless transition to a new state of society. Any political activity is ultimately connected in one way or another with state power. One can argue about what factors underlay the emergence of the state, whose interests are expressed by certain modern state formations. But it is an axiom that the state power is the quintessence of the result of the political activity of people and their associations. And no matter what was recorded in the program documents of various political parties of different times, one thing is clear: they need state power to implement declarative or secret goals. The most essential thing in the state is not the possibility of uniting people, not the territory, but the possession of power. Therefore, it is extremely important for the whole society to create a clear, smoothly operating legal mechanism for the formation and exercise of state power. 4. Law and political system of society Historically, law precedes political phenomena. Its origin and development can be schematically represented as follows. Man, having appeared on Earth as a species and each time appearing personally, protects his life, freedom, property (first instinctively, and then consciously), i.e. in the modern sense, in fact, realizes his rights to life, freedom, property. At the same time, contradictions arise between people and, as a result, the need to bring the freedom of one person into line with the freedom of another, limiting the freedom of both. Fixing the limits of the action of freedom and checking them by the practice of communication means establishing a measure of freedom of expression of will and actions of each individual, the emergence of a norm of behavior in accordance with this measure. For millennia, the named facets of human existence - life, freedom, property and their protection - were inseparable and had a specific, personified character, which determined the casual way of regulating relations between people. Life situations are quite often repeated, and therefore, in the process of communication between people, habits, stereotypes gradually began to develop, which, on the one hand, ensured freedom of action, and on the other hand, limited it to reasonable and fair (from the point of view of the social majority or a certain social force) framework . A generally accepted measure was established, that is, a norm (rule) common to a certain circle of people (family, clan, etc.). At first, these nature-conditioned rules of life existed in the form of mononorms, combining religious, moral, aesthetic, and ecological principles. They were not divided into rights and obligations and were of an organizational and regulatory nature. In the era of the appropriating economy, they regulated the extraction and distribution of food, fixed the order and structure of government bodies, procedures for resolving disputes, performing rituals, rituals, etc. In other words, such mononorms performed almost the same functions as modern legal norms. And although, due to habit and tradition, they were performed mostly voluntarily, there were sanctions for their violation - censure, expulsion from the tribe, bodily harm, and the death penalty. The subjects of the application of mononorms were relatives, older in age, society as a whole. Legends, myths, and legends served as the main form (source) of preserving and transmitting normative material to subsequent generations. It is noteworthy that already at this stage of human development, there were three main methods of regulation that have survived to this day - prohibitions, permissions and positive obligation. For example, prohibitions (taboos) under pain of the gravest punishments forbade exterminating animals of certain species, climbing the "sacred mountain", and entering into consanguineous marriages. Permissions regulated the terms and places of harvesting fruits, the use of common tools and means of hunting and fishing. Positive obligation was aimed at organizing the necessary behavior in the process of cooking, building dwellings, kindling fires and maintaining fire, making tools, vehicles. In the era of the formation of a producing economy, i.e. with the emergence of agriculture, cattle breeding and crafts, the gradual stratification of society into groups, layers and classes, the splitting of mononorms into proper legal, moral and religious norms begins. In addition, norms appear that are determined by the specifics of agricultural production, everyday life, religious ceremonies, and social differentiation of society. With the birth of writing and crafts, with the development of human knowledge about natural phenomena, the acquisition of production experience, there is an accumulation of norms that determine what is necessary, what can and cannot be done by people in appropriate circumstances. There is a need to streamline, ensure the stability and inevitability of their application, i.e., the need to fix legal norms (on stone, clay and wooden tablets), systematize them (according to areas of activity, religious rites) and ensure their implementation (coercive measures, religious fear , authority). One of the first systematized legal "acts" in the history of mankind were agricultural calendars, reflecting a person's understanding of the cyclical nature of cosmic and terrestrial phenomena and compiled in accordance with the movement of celestial bodies (stars, sun, moon). Solar, lunar agricultural calendars in early agricultural societies (Mesopotamia, Egypt, etc.), regardless of their actual origin (cosmic or natural earth), were at the same time the greatest achievement of human civilization and a new stage in the awareness and development of law. With the strengthening of the state as the main form of organization of society, new written sources of law (laws, codes, codes of laws) appear. Physical and social inequality, historical, demographic and other factors predetermine the different content of legal norms. A number of ancient legal acts (the laws of Hammurabi, the reforms of Solon, the laws of Manu) reflected attempts at a socially just solution of issues. In other sources (Laws of 12 tables, Salichnaya Pravda, Russkaya Pravda), the estate-class nature of legal regulation is quite clearly expressed. Thus, Russian Pravda provided for the murder of a slave, a reward to his master in the amount of 5 hryvnias, for the murder of a free person - 40 hryvnias, and for the murder of a princely combatant - a double virs of 80 hryvnias. In the period of modern history, the structuring of social systems is increasing, the role of the state in law-making activity is increasing, and actual relations are becoming more complicated. All this determines some features of legal norms. They become specialized, there is a need for their complex application in the regulation of social relations (material and procedural norms, norms of public and private law, etc.). A more stable character is acquired by logically verified and tested internal and external systemic links between the elements of norms, legal structures of various levels, institutional formations are being formed, the role of legal consciousness in law-making and law-realizing activities is becoming more and more noticeable. Thus, certain systems of interrelated and interacting norms (rules of conduct) were formed, reflecting the measure of human freedom, associations of people in a particular society. The meaning and role of law in the political system of society make it possible to understand the following aspects of their relationship. 1. Law is the result of the activity of a person, society and the state, denoting the limits of human freedom. In a state-organized society, such limits (facets) of freedom are enshrined in official normative documents and ensured by the power of the state and the authority of society. Therefore, all structural elements of the political system, including the state itself, are forced to adjust their political claims, taking into account these limits. 2. Law carries a social value potential, being one of the components of the normative basis for the organization and functioning of society. Within its framework, political institutions are established, the powers of the structural elements of the political system are determined. Relations concerning state power, the relationship between state bodies, political parties, public associations and citizens, with other states are clothed in a legal form. In other words, law acts as a highly effective and expedient means of regulating the most important social relations. 3. Law is a kind of battery of volitional aspirations of people: individuals, social groups, classes, society as a whole. In law, the highest consensus (consent) of all wills is achieved, which determines the measure of freedom of each individual and association in society. Due to its structured and systematic nature, law can accumulate volitional aspirations at different levels of the social organism and therefore act as a form of realization of the socio-political autonomy of individuals, their collectives, national and religious communities. 4. Law plays the role of a connecting and mediating link between the political system and civil society. On the one hand, it collects and absorbs a variety of social information (legally and politically significant), and on the other hand, it translates political demands into the language of strictly defined and state-provided rules of conduct, creates procedural forms for translating them into human activity. The texts of regulatory legal acts usually combine a general political and legal assessment of regulated social relations, which is very important for the correct understanding and application of the law, strengthening the rule of law and order in the country. 5. Law is a necessary stabilizing factor in the political system. The orderliness and stability of political relations regulated by law are ensured by the fact that the rules of law are not of a one-time nature. They are designed for a long-term existence and are implemented in strictly regulated procedural forms. 6. The sources of law are not only the normative acts of the state, but also customs, precedents, as well as decisions (laws) adopted at a national referendum. In these cases, the regulatory and preventive power of law acquires a general social, general civil character, going beyond purely political phenomena. In conclusion of this and as a prologue to the next chapter, we note that law and the state are the result of the development of our civilization, the achievement of a universal culture. Associated with them are social progress, the exercise of natural and acquired human rights and freedoms, and the formation of a democratic legal regime. The need of a person and society for the further development of the state and law, the increasing social value of the latter necessarily determine the emergence of the idea and the real processes of the formation of civil society and the rule of law. Chapter 8. Civil society and the rule of law 1. The concept of civil society The category "civil society" historically reflects a special section of the development of mankind, characterized by the desire of thinking people of every time to create a model of an ideal social order, where reason, freedom, prosperity and justice would reign. The formation of civil society has always been linked in one way or another with the problems of improving the state, raising the role of law and law. So, in the ancient world, this was objectively served by the theory of eidos (the idea of the state) of Plato. One should also consider Aristotle's statement that the state is a set of citizens sufficient for self-sufficient existence, that is, nothing more than civil society. Cicero, justifying the legal equality of people, wrote: "... the law is the connecting link of civil society, and the right established by law is the same for everyone ...". At this stage of human development, civil society was completely identified with the state. This continued for quite a long time and was due to the level of development of economic and socio-political relations (primitive forms of the division of labor, the initial stage of the development of commodity-money relations, the nationalization of public life, the caste nature of the social structure). The consistent development of social relations also predetermined the transformation of scientists' views on civil society. At the turn of the XVI-XVII centuries. in the works of N. Machiavelli, G. Greece, T. Hobbes, J. Locke, C. Montesquieu, J.-J. Rousseau was already motivated by the correspondence to civil society not of all, but only progressive, in their opinion, forms of government based on natural law, contractual principles. In particular, J. Locke believed that "absolute monarchy ... is incompatible with civil society and, therefore, cannot be a form of civil government at all." Machiavelli believed that the best form of state is a mixed one, consisting of a monarchy, aristocracy and democracy, each of which is designed to restrain and protect the others. We find a philosophical description of the foundations of civil society in I. Kant. He considered the following ideas to be the main ones: a) a person must create everything on his own and must be responsible for what he has created; b) the clash of human interests and the need to protect them are motivating reasons for the self-improvement of people; c) civil freedom, legislatively secured by law, is a necessary condition for self-improvement, a guarantee of the preservation and elevation of human dignity. These ideas can certainly be put in the basis of the theory of civil society. Kant, transferring the concept of antagonism between individuals as a stimulus for their self-development to relations between states, concludes that for humanity the greatest problem that nature forces it to solve is the achievement of a universal legal civil society. W. Humboldt, accepting the philosophical teachings of Kant, tried to show the contradictions and differences between civil society and the state using concrete examples. To the first he attributed: a) a system of national, public institutions formed by the individuals themselves; b) natural and common law; c) a person. The state, unlike civil society, consists, in his opinion: a) from the system of state institutions; 6) positive law issued by the state; c) a citizen. Hegel played an important role in shaping ideas about civil society, defining it as a sphere of private interest. Here he also included the family, class relations, religion, law, morality, education, laws and the mutual legal relations of subjects arising from them. Hegel assigned a special role to individuals opposing each other. "In a civil society, everyone is a goal for himself, all others are nothing to him. But without a relationship with others, he cannot achieve the full scope of his goals." K. Marx and F. Engels gave a materialistic description of the analyzed phenomenon and the category that reflects it. They wrote: "Civil society embraces all the material communication of individuals within a certain stage of development of the productive forces. It embraces the entire commercial and industrial life of a given stage and to that extent goes beyond the boundaries of the state and nations, although, on the other hand, it must again act outside in the form of a nationality and be built inside in the form of a state. An analysis of historical data and the above judgments shows that the process of the formation of civil society is complex and contradictory. It covers dozens of centuries, starting with the emergence of elements of civil society in the ancient world (Athens, Rome), covers such "centers" of the Middle Ages as the free cities of Lübeck, Novgorod, and goes to the developed social systems of Europe and America in modern times. The formation of civil society depends on the degree of development of economic and legal relations, the reality of personal and economic freedom of individuals, the effectiveness of the mechanism of public control over state power structures. The qualities of civil society are inherent in any social system, but may have a different degree of development. So, for a certain period of time they are in their infancy, in the conditions of a totalitarian state they can be temporarily suppressed, they are in a state of compressed spring, with a pronounced class character of the social system, they are dosed and only when social equilibrium is achieved and in conditions of democratic legal statehood they receive development and become dominant. The modern understanding of civil society assumes that it has a complex of essential features. The absence or underdevelopment of some of them makes it possible to determine the state of "health" of the social organism and the necessary directions for its self-improvement. Let's consider these signs in more detail. Civil society is a community of free individuals. In economic terms, this means that each individual is an owner. He really possesses the means that a person needs for his normal existence. He is free to choose forms of ownership, determine the profession and type of labor, and dispose of the results of his labor. In social terms, the belonging of an individual to a particular social community (family, clan, class, nation) is not absolute. It can exist independently, has the right to sufficiently autonomous self-organization to meet its needs and interests. The political aspect of the freedom of an individual as a citizen lies in his independence from the state, i.e., in the possibility, for example, to be a member of a political party or association that criticizes the existing government, the right to participate or not to participate in the elections of state authorities and local self-government. Freedom is considered secured when an individual, through certain mechanisms (court, etc.), can limit the willfulness of state or other structures in relation to himself. Civil society is an open social education. It provides for freedom of speech, including freedom of criticism, publicity, access to various kinds of information, the right to free entry and exit, a wide and constant exchange of information and educational technologies with other countries, cultural and scientific cooperation with foreign state and public organizations, assistance to the activities of international and foreign associations in accordance with the principles and norms of international law. It is committed to general humanistic principles and is open to interaction with similar entities on a planetary scale. Civil society is a complex structured pluralistic system. Of course, any social organism has a certain set of systemic qualities, but civil society is characterized by their completeness, stability and reproducibility. The presence of diverse social forms and institutions (trade unions, parties, associations of entrepreneurs, consumer societies, clubs, etc.) makes it possible to express and realize the most diverse needs and interests of individuals, to reveal all the originality of a human being. Pluralism as a feature that characterizes the structure and functioning of the social system is manifested in all its areas: in economics, this is a variety of forms of ownership (private, joint-stock, cooperative, public and state); in the social and political - the presence of a wide and developed network of social formations in which the individual can manifest and protect himself; in the spiritual - the provision of ideological freedom, the exclusion of discrimination on ideological grounds, a tolerant attitude towards different religions, opposing views. Civil society is a self-developing and self-governing system. Individuals, uniting in various organizations, establishing various relationships among themselves, realizing their sometimes conflicting interests, thereby ensure the harmonious, purposeful development of society without the intervention of the state as a political power. Civil society has its own internal sources of self-development, independent of the state. Moreover, thanks to this, it is able to limit the power of the state. One of the important characteristics of the dynamics of society is civil initiative as a conscious and active activity for the benefit of society. In combination with such moral categories as civic duty, civic conscience, it serves as a reliable means for the further progressive development of civil society. Civil society is a legal democratic society, where the connecting factor is the recognition, provision and protection of the natural and acquired rights of man and citizen. The ideas of civil society about the rationality and justice of power, about the freedom and well-being of the individual correspond to the ideas of the priority of law, the unity of law and law, and the legal differentiation of the activities of various branches of state power. Civil society on the way to legal develops together with the state. The rule of law can be considered the result of the development of civil society and a condition for its further improvement. The modern civilized view of these problems is that the rule of law does not oppose civil society, but creates the most favorable conditions for its normal functioning and development. Such interaction contains a guarantee of the resolution of emerging contradictions in a civilized way, a guarantee of the exclusion of social cataclysms, a guarantee of the non-violent progressive development of society. Civil society is a free democratic legal society focused on a specific person, creating an atmosphere of respect for legal traditions and laws, general humanistic ideals, ensuring freedom of creative and entrepreneurial activity, creating the opportunity to achieve well-being and the realization of human and civil rights, organically developing mechanisms for restriction and control for the activities of the state. Reality of the XX century. - Russian civil society. However, many of its features and qualities are still in the stage of deployment and formation. Today, this process is complicated by the instability of socio-political structures, slow access to civilized market relations, the absence of a wide social layer of owners, and the low efficiency of the mechanism of legal protection of the individual. And yet, despite these difficulties and various kinds of cataclysms, the formation of civil society in Russia is in line with world development, retaining the positive experience of its own past, preserving its original features. With the adoption of the new Constitution of the Russian Federation on December 12, 1993, the process of formation of civil society and the rule of law received a powerful impetus and certain legal guarantees for its implementation. The fundamental ideas of civil society were fixed constitutionally. Man, his rights and freedoms are declared the highest value, and the recognition, observance and protection of the rights and freedoms of man and citizen is the duty of the state. The division of powers into legislative, executive and judicial was proclaimed, guarantees of local self-government bodies were established. The further development of civil society in Russia depends on the reasonable and consistent denationalization of property, the reduction and neutralization of the bureaucracy, the formation of a multi-party system, the creation of a system of incentives for the development of production, the development of optimal social programs, etc. One of the effective levers in this regard is legal regulation fundamental relations of civil society, the significance of which lies in the solution through law of three main goals: - put a barrier to excessive interference of the state in the affairs of civil society and the private life of a citizen; - fix the obligations of the state to civil society; - ensure the implementation of constitutional provisions on the rule of law. 2. Structure of civil society Structure is the internal structure of society, reflecting the diversity and interaction of its components, ensuring the integrity and dynamism of development. The system-forming principle that generates the intellectual and volitional energy of society is a person with his natural needs and interests, outwardly expressed in legal rights and obligations. The constituent parts (elements) of the structure are various communities and associations of people and stable relationships (relationships) between them. The structure of modern Russian civil society can be represented in the form of five main systems, reflecting the corresponding spheres of its life. These are social (in the narrow sense of the word), economic, political, spiritual, cultural and information systems. The social system covers the totality of objectively formed communities of people and the relationships between them. This is the primary, fundamental layer of civil society, which has a decisive influence on the life of its other subsystems. First of all, here it is necessary to designate a block of relations related to the continuation of the human race, the reproduction of a person, the extension of his life, and the upbringing of children. These are the institutions of the family and the relationships conditioned by its existence, which ensure the connection of the biological and social principles in society. The second block consists of relations that reflect the purely social essence of a person. These are concrete relations of a person with a person, both directly and in various groups (clubs, public associations, etc.). The third block is formed by indirect relations between large social communities of people (groups, layers, classes, nations, races). The economic system is a set of economic institutions and relations that people enter into in the process of realizing the relations of ownership, production, distribution, exchange and consumption of the total social product. The primary layer here is property relations, penetrating the entire fabric of economic relations and the entire cycle of social production and consumption. In the Russian Federation, private, state, municipal and other forms of ownership are recognized and protected in the same way. The relations of production of material and non-material goods constitute the second most important structural layer for the social system. The basis of production is the creative work of members of society, therefore, labor relations are an integral part of economic relations. A more mediated and abstract nature are relations of production, which, due to their specificity, become independent of the will and consciousness of a particular person. The structural elements of the economic system are private, municipal, joint-stock, cooperative enterprises, farms, individual private enterprises of citizens. The relations of distribution, exchange, consumption of the total social product are an important part of the economic system, although they also function to a certain extent within the framework of another system - the social one. The political system is made up of integral self-regulating elements (organizations) - the state, political parties, socio-political movements, associations and relations between them. An individual politically acts as a citizen, deputy, member of a party, organization. The deep, essential layer here is the relations about power that permeate the political system in all its environments, at all stages of its existence. Power relations are very diverse: these are relations between the state and other structural elements, between state bodies and institutions, etc. A special place is occupied by relations that develop in connection with the activities of political parties, the ultimate goal of which is always political (state) power. In addition to purely power relations, there is a whole range of political relations covering the problems of unification of citizens in socio-political organizations, freedom of speech, guarantees of citizens' electoral rights, the functioning of forms of direct democracy, etc. The spiritual and cultural system is formed from the relations between people, their associations, the state and society as a whole about spiritual and cultural benefits and the corresponding materialized institutions, institutions (educational, scientific, cultural, religious) through which these relations are realized. The basic block in this area is formed by relations related to education. Education is the foundation for the development of the human personality. Its condition characterizes the prospects for the development of a particular society. Without education, not only the spiritual and cultural sphere, but also the social system as a whole cannot function normally. The relations that determine the emergence and development of science, culture, and religion are vital for a person and society. The ways of forming these relations are diverse, their impact on a person is ambiguous, but the consolidating factors are their focus on the preservation of historical experience, general humanistic traditions, the accumulation and development of scientific, moral, spiritual, cultural values. The information system is formed as a result of people's communication with each other directly and through the media. Public, municipal and private organizations, institutions, enterprises, as well as citizens and their associations engaged in the production and release of mass media can act as its structural elements. Information relations are cross-cutting, they permeate all spheres of civil society. When characterizing the structure of civil society, three circumstances should be kept in mind. Firstly, the above classification was undertaken for educational purposes and is conditional. In fact, these structural parts, reflecting the spheres of society's life, are closely interconnected and interpenetrating. The unifying factor, the epicenter of the diverse connections between them, is a person (citizen) as a set of social relations and a measure of all things. Secondly, when studying social, economic and other systems as relatively independent phenomena, one should not underestimate other structural components (ideas, norms, traditions). Thirdly, it is necessary to see that the binding, ordering factor in the structure and process of the life of a social organism is law with its natural general humanistic nature, supported by progressive, democratic legislation, that the logic of the development of civil society inevitably leads to the idea of legal statehood, a legal democratic society. 3. The emergence and development of the doctrine of the rule of law The origins of the idea of the rule of law should be sought in those times when human civilization was in its cradle. Even then, a person tried to understand and improve the forms of communication with his own kind, to understand the essence of his own and others' freedom and lack of freedom, good and evil, justice and injustice, order and chaos. Gradually, the need to limit one's freedom was realized, social stereotypes and common rules of behavior (customs, traditions) for a given society (clan, tribe), provided by the authority and way of life itself, were formed. In the process of communication and realization of natural human rights to life, freedom, property, the norms of natural law crystallized. It served as the main and direct regulator of relations between the individual and society, and up to a certain point successfully harmonized them. With the advent of the state, this unique product of human activity in all respects, the situation has changed. It tried to make natural law its property and usurp the very possibility of "creating" legal norms. The state became an intermediary between the individual and society and, using the humanistic principles of law, made it the main instrument for achieving its goals. Mankind was forced again to look for the optimal forms of correlation already between the individual, the state and civil society, the ways of a reasonable combination and satisfaction of their needs and interests, involving law for this. The ideas about the inviolability and supremacy of the law, about its divine and fair content, about the need for law to comply with law can be considered as prerequisites for the doctrine of the rule of law. The first example of true respect for law as an imperishable phenomenon, rising above the vanity of life, is given by an ancient story: the wise Socrates accepted death, not wanting to escape from the punishing right hand of the court. Plato wrote about the importance of legal laws for the normal development of the state and limiting the arbitrariness of rulers: "I see the near death of that state where the law has no force and is under someone else's power. Where the law is the ruler over the rulers, and they are his slaves, I see the salvation of the state and all the blessings that the gods can bestow on states. Aristotle adhered to similar views, emphasizing that "where there is no rule of law, there is no place for any form of state system." European scientists of modern times took the baton from ancient thinkers. K. Jaspers, defining the rule of law as a state in which freedom based on laws operates, wrote that the classical type of political freedoms worthy of imitation developed in England more than 700 years ago. Indeed, this can be confirmed. In particular, already in the Northampton Statute of 1328 it was said that no royal decree could affect the course of justice. By the time J. Locke wrote his famous pamphlet about government, in England there was already such a type of political system where respect for the court was real and a certain system of checks and balances in power relations operated. Further development of the idea of the separation of powers, of ensuring the rights and freedoms of citizens was received in the works of C. Montesquieu. “If,” he wrote, “legislative and executive power are combined in one person or institution, then there will be no freedom, since it can be feared that this monarch or senate will create tyrannical laws in order to also tyrannically apply them. There will be no freedom even if the judiciary is not separated from the legislative and executive powers.If it is connected with the legislative power, then the life and freedom of citizens will be in the power of arbitrariness, for the judge will be the legislator.If the judiciary is connected with the executive, the judge will have the opportunity become an oppressor." The philosophical substantiation of the doctrine of the rule of law in its systematic form is associated with the names of Kant and Hegel. Kant defined the state as an association of many people subject to legal laws. His categorical imperative of reason required him to act in such a way that the free manifestation of his own arbitrariness was compatible with the freedom of everyone and conformed to the universal law. For Hegel, the state was the same as law ("the actual being of free will"), but only the most developed (the whole system of law), which included all the abstract rights of the individual and society. Therefore, the system of law, that is, the state in its dialectical understanding, is the realm of realized freedom. The phrase "legal state" is first encountered in the works of German scientists K. Welker (1813) and I.Kh. Freiherr von Aretin (1824). But the first legal analysis of this term and its introduction into scientific circulation was made by their compatriot Robert von Mol (1832). He considered the rule of law as a category of continuously developing doctrine of the state and placed it fifth in a row after the patriarchal, patrimonial, theocratic and despotic state. It can be said that since that time the idea of a rule of law state has occupied the minds of German scientists and politicians for more than a century. There are three stages in the development of the German idea of the rule of law in the literature. Before the revolution of 1848, it was formed as a theoretical and constitutional-political basis for its creation. In 1848, in the draft Paulkirchen constitution, an attempt was made to combine the ideas of the rule of law and democracy. Since 1871, there has been a detailed development of the principle of separation of powers, the concepts of law and judicial protection. The Weimar Constitution of 1919 integrated the right-of-state and representative-parliamentary elements. The current Basic Law declares the Federal Republic of Germany a social and legal state. It should be noted that the opinion expressed in German literature (it is predominant, but it cannot be called indisputable) is that the first legal state in Germany was built in 1880. By the end of the XNUMXth century, in a number of developed countries, such types of legal and political systems had developed, the principles of construction of which largely correspond to the ideas of legal statehood. The constitutions and other legislative acts of the Federal Republic of Germany, the USA, France, Russia, England, Austria, Greece, Bulgaria and other countries contain provisions that directly or indirectly fix that this state entity is legal. On a planetary scale, the UN actively contributes to the dissemination and implementation of this idea through its organizational structures and international legal acts. 4. Basic principles of the rule of law Principles are the fundamental ideas (requirements) that determine in their totality the ideal construction (model) of the state, which could be called legal. Their formation is due to objective and subjective factors: - the level of development of culture, science, education and other elements that make up the total intelligence of a given social system; - the moral and spiritual potential of society, which is expressed in the recognition by the majority of the population as fair, and therefore legal, of the existing state system; - the presence or absence of a stable mechanism for the implementation of legal principles in the activities of state bodies; - the degree of development by a particular person of the law as his own freedom, conscious and, in necessary cases and necessary limits, limited by him. Taking into account historical data, public and state practice, and from the standpoint of modern scientific knowledge, such principles of the rule of law can be distinguished. 1. The principle of the priority of law. In the literature, when characterizing the rule of law, the term "rule of law" is very often used, the origin of which is obviously connected with the English "rule of low" - "rule of law" or "rule of law". In our opinion, the Russian translation of this term is not adequate to the content put into it, and it would be more accurate to speak of the priority of law. This will help to avoid, on the one hand, the interpretation of law as a means of suppression and violence, and on the other hand, the fetishization of law as a self-sufficient and self-governing phenomenon. The principle of the priority of law can be revealed by assimilation of the following points. Firstly, law is inextricably linked with a person, it is a side of his being, a universal means of communication and a guarantee of a normal lifestyle. Secondly, the state is not the only source of law formation. In many cases, it only formalizes, puts into legal form either natural legal requirements, or the will of the entire people (society), expressed through referendums, or provisions formed in the course of social practice, especially judicial. Thirdly, law arose earlier, and therefore is more natural than the state. According to one of the versions, the state arose out of the need for organizational-imperious, forceful support of legal institutions in society for the purpose of its normal functioning. Great "loner" thinkers guessed about the origin of law and its role in people's lives, but only now can we say that humanity is gradually but consistently aware of this role and chooses law as a priority in its development. Hence the need to limit state power, to bind the activities of the state apparatus by law, to orient the state towards the protection of human rights and freedoms. Ultimately, the priority of the right means: a) consideration of all issues of public and state life from the standpoint of law, law; b) the combination of universal human moral and legal values (reasonableness, justice) and formal regulatory values of law (normativity, equality of all before the law) with the organizational-territorial division of society and legitimate public power; c) the need for an ideological and legal justification for any decisions of state and public bodies; d) the presence in the state of the forms and procedures necessary for the expression and operation of law (constitution and laws, systems of substantive and procedural guarantees, etc.). 2. The principle of legal protection of a person and a citizen. It should immediately be emphasized that this principle is primary, complex, enduring and absolute. Man, as a rational and social being, in the course of his life, communication with his own kind, creates various organizational forms of his existence and establishes acceptable rules of the game, norms of behavior. In this sense, law and the state are derived from man. The complexity lies in the fact that the named principle underlies all the relationships of a citizen both with the state and its bodies, and with other public entities, other citizens within the framework of legal relations regarding a variety of objects. The enduring nature of this principle is due to the natural origin of the right, which arose, in essence, from the desire of a person to preserve and protect his life, freedom, health, etc. In other words, the right arose and exists as a reasonable side of being, a measure of human freedom. The absoluteness (totality) of this principle lies in the fact that all relationships between an individual and the state (its bodies, officials) should be built only on a legal basis. If they go beyond the scope of law, on the part of the state this can turn into arbitrariness, extra-legal violence, ignoring human needs. The principle of legal security in terms of content has specific legal features. It: 1) equality of the parties and mutual responsibility of the state and the citizen; 2) a special type of legal regulation and form of legal relations; 3) a stable legal status of a citizen and a system of legal guarantees for its implementation. 1) Normal legal relations presuppose equality and mutual responsibility of their parties. Of course, the state, entering into relationships with many different public entities and with all citizens, already therefore has a huge amount of rights and obligations. In addition, the state, as an aggregate representative of the people, has a number of special powers that an individual citizen cannot have (issue generally binding norms, levy taxes, etc.). And yet there are no grounds for asserting that the state has more rights than the citizen. In specific legal relations, they have equal rights and corresponding duties. Moreover, in a state governed by the rule of law, a mechanism of mutual responsibility for violation of rights and failure to fulfill obligations should also be worked out. 2) Since it is presumed that the rule of law and a citizen are equal participants in legal relations, the main form of their relationship is an agreement (on employment, loan, sale, rental of housing, etc.). A treaty of the highest form is a constitution, if it is adopted as a result of a popular vote (referendum). It defines those special rights that are transferred to the state and cannot belong to an individual citizen, and those natural rights that constitute the content of the private life of citizens and are inviolable for the entire state. Liberal social systems are characterized by a combination of two main types of legal regulation. The actions of a citizen are regulated according to the generally permissible type, allowing to do everything that is not expressly prohibited in the law, encouraging creativity, a socially useful initiative. The state, its bodies and officials should be guided by the permissive type of legal regulation, which allows them to act only within their competence, to do only what is permitted by law. 3) A stable, stable legal status of a citizen (a system of his rights and obligations) and a clear, smoothly functioning legal mechanism for ensuring it allow a person to look forward with confidence, not to be afraid that his rights may be violated at any moment. 3. The principle of the unity of law and law. In a state governed by the rule of law, any normative legal act must be legal not only in form and name, but also in meaning and content. This means that it must reflect natural law principles, comply with international legal norms on human and civil rights, and be accepted by a legitimate state authority, legally elected or appointed. And finally, when publishing it, the whole complex of legal means and techniques developed by world practice should be used. These are legal structures and concepts that are logically verified and commensurate with humanistic principles, procedural forms adequate to the norm, targeted types and methods of legal regulation, consistent democratic procedures for adopting laws, etc. 4. The principle of legal differentiation between the activities of various branches of government. Power in the state can be personified by one person (monarch, dictator, charismatic leader), it can belong to a group of people (junta, the top of the party-political bureaucracy). In this case, it does not matter to those in power how they got it (revolution, civil war, coup, by inheritance, etc.). But for a rule of law state, a democratic way of acquiring power is characteristic, vesting it only in accordance with law, law. The traditional concept of the separation of powers into legislative, executive and judicial in relation to modern states should be understood not as a division of power, but as the creation of a system of checks and balances that contribute to the unhindered exercise of their functions by all branches of government. The legislative power (supreme), elected popularly, reflects the sovereignty of the state. The executive power (derived from the legislative), appointed by the representative body of power, is engaged in the implementation of laws and operational and economic activities. The judiciary acts as a guarantor of the restoration of violated rights, fair punishment of the guilty. In England, the USA and other countries, the judiciary was the source and core of the formation of the entire legal system. In Russia, the judicial reform of 1864 marked the beginning of a real separation of powers. In historical and theoretical terms, one can speak of the need for a constant rise in the judiciary, from time immemorial personified with examples of impartiality and justice. Along with the above, the rule of law is also inherent in the principles of the rule of law - the highest normative legal act, constitutional and legal control, political pluralism, etc. 5. On the formation of the rule of law in Russia In our country, ideas about legal statehood were preceded and influenced by the development of I.T. Pososhkov, set out in his "Book of Poverty and Wealth" (1724), S.E. Desnitsky in "The Idea of the Establishment of Legislative, Judicial and Punitive Power in the Russian Empire" (1768), reformist projects of M.M. Speransky, as well as the revolutionary statements of A.N. Radishchev, Decembrists P.I. Pestel and N.M. Muravyov, Democrats A.I. Herzen, N.P. Ogareva, N.G. Chernyshevsky. In some cases, these were proposals for the improvement of state power in the spirit of "enlightened absolutism", in others, as a rule, it was about a republican form of government, about the right of the people to participate in state affairs. A more purposeful and academic reflection of the idea of the rule of law was received in the works of representatives of the theory and philosophy of law. Thus, P.I. Novgorodtsev. To the legal restriction of the state in the interests of the individual and in the name of the exercise of his rights and freedoms, N.M. Korkunov. “Law,” wrote B.A. Kistyakovsky, “should act and have force completely regardless of what political trends prevail in the country and in the government. Right, by its very existence, stands above the parties and therefore creates for it a subordinate position in relation to to one party or another - that means perverting its nature. It is important to emphasize that the named and many other Russian researchers (N.I. Palienko, S.A. Kotlyarevsky, etc.) associated the future of their country with the ideas of constitutionalism as one of the necessary conditions for building a rule of law state, which implies the rule of law in all spheres of public life, denies any absolutism and arbitrariness of power and the lack of rights of those subject, not only in the sphere of private relations, but also in the political sphere, in the relations of citizens with state power. Constitutionalism as an idea and a reality in the history of Russia has come a long and controversial path of development. The preparation of the first constitutional drafts began as early as the 1th century, was officially continued under Alexander I, and then unofficially by the Decembrists. Under Alexander II, a draft Russian constitution was prepared, but was not adopted because of his assassination on March 1881, 17. In fact, the first constitution of Russia can be considered together as the Manifesto on the improvement of the state order of October 1905, 23 and the Basic State Laws of 1906 April XNUMX With the adoption of these acts, where, along with the consolidation of the supreme autocratic imperial power, the granting of freedom of conscience, speech, assembly and unions, the involvement of broad sections of the population in the elections, the mandatory procedure for the approval of all laws issued by the representative body, were proclaimed, the ideas of the rule of law received a new impetus. Realistically assessing the situation in the country, some scientists rightly believed that a constitutional state can be considered only a step towards a legal state. It "is as far from saying its last word as the law itself, the dominance of which it guarantees and the maintenance of which it improves in the interests of the development of human society." Thus, despite the complex and unstable socio-political situation, the weakness of public structures, a wide range of opinions, the fundamental ideas of legal statehood steadily made their way into the Russian political and cultural impassability. After the October Revolution of 1917 and the end of the civil war, when a period of some stabilization of social relations began and the first Soviet constitutions were adopted, the ideas of the rule of law again began to take over the minds of lawyers. Many believed that socialist ideas about social equality and justice were not only consonant with the principles of legal statehood, but could also become a reality precisely in such conditions. Even before the revolutionary storms, prominent legal theorists B.A. Kistyakovsky and P.I. Novgorodtsev spoke about the possible combination of the ideas of the rule of law with the socialist organization of society. History has shown how unrealistic their predictions turned out to be. Since the end of the 20s. a totalitarian political system began to take shape in the country, law was turned into an instrument of the state of a punitive command character, the theory of the rule of law was declared bourgeois-apologetic and harmful to socialism. The process of returning the ideas of legal statehood to Russia began in the 60s. and has developed rapidly in the last decade. A number of factors contributed to this: the process of denationalization of property, the elimination of the one-party system, the reform of the judiciary, etc. The adoption on December 12, 1993 of the Constitution of the Russian Federation indicates the end of the preparatory period and marks a new stage in the development and implementation of the ideas of legal statehood. The process is characterized by both novelty and continuity. Its novelty lies in the fact that: a) the Constitution of a completely new sovereign state was adopted, different from Tsarist Russia, the former USSR and the RSFSR; b) the Constitution was adopted by referendum, which allows us to talk about its democratic and legitimate character; c) for the first time in history it proclaims Russia as a legal and social state. The continuity of the named process is expressed in the following: a) the world idea of a rule of law state was accepted without hesitation by the Russian socio-political and official structures, the legal scientific community; b) in the Constitution, other legislative acts and scientific developments, there is a tendency to preserve the achievements of the past, both pre-revolutionary and Soviet Russia (moral and democratic potential, a set of legal structures working on the principle of social justice, a wide range of human rights and freedoms). For Russia, the path to the rule of law has not been and will never be easy and fast. There are many reasons for this. Firstly, civil society in our country is still being formed, its structure is amorphous, the instability of social relations gives rise to indifference among the population to solving relevant problems. The procedure of transition from the existing social structure to a new one is painful and takes time, moreover, many people currently lack a clear social self-identification. Secondly, economic problems are solved discretely and inconsistently from the point of view of common sense and formal logic, as a result of which we have the one-sidedness of the processes of denationalization and privatization, the absence of a middle class of owners, the growth of the lumpenized stratum of the population, the polarization of incomes of social groups and strata of the population, a slow exit to market relations, etc. Thirdly, there is a crisis state of the Russian political system, namely: the instability and uncertainty of power relations, the political unstructured society (political parties are small and do not have a clear social orientation), the protracted process of implementing the principle of separation of powers, the low level of political culture of the population as a whole and those in power in particular. Fourthly, purely legal issues still require their resolution. Moreover, the presence of contradictory legislation, the haste in issuing normative legal acts, and even the adoption of non-legal laws is not the most important thing. In our opinion, the issues of understanding and assimilation of law by the general population, the introduction of natural law principles into positive laws, the formation of stable legal traditions in the mass consciousness, and the stimulation of legal self-awareness are more complex. All of the above testifies to the following. 1. The idea of a legal state terminologically denotes the relationship between law and the state. But the true meaning of this connection can be revealed only through the prism of a person who creates legal and state institutions in the process of developing his intellectual and spiritual essence, improving individual and social traits, forming a free civil society. 2. The doctrine of the rule of law arose and lives in the socio-historical dimension, it has its roots, prerequisites. Each new idea in its development is based on the previous ones, each new step in history has been prepared by time and people. 3. The development of the considered, like any other general humanist idea, is a complex and contradictory process, not knowing geographical, national and class boundaries. Historically, it is continuous, endless and, to a certain extent, irreversible. 4. The emergence and evolution of the idea of a legal state are real and cognizable processes. At each stage of the development of civil society, they reflect the appropriate level of culture and the real legal reality in a particular country and on the planet as a whole. 5. Mankind has suffered the idea of legal statehood in numerous disasters, conflicts, wars and revolutions. In developed countries, an increasing number of people are aware of the saving mission of law, its inseparable connection with the person himself, the significance of a truly reasonable legal sovereign public authority. For Russia, the rule of law is the antipode of state voluntarism and totalitarianism, an alternative to any dictatorship. Section three. State theory Chapter 9. Problems of understanding the state, its essence and patterns of development 1. The state is a complex and historically developing socio-political phenomenon Questions about the state, its concept, essence and role in society have long been among the fundamental and controversial in state studies. This is due to at least three reasons. First, these questions directly and directly affect the interests of various strata, classes of society, political parties and movements. Secondly, no other organization can compete with the state in the variety of tasks and functions performed, in influencing the fate of society. Thirdly, the state is a very complex and internally contradictory socio-political phenomenon. Born by society, its contradictions, the state itself inevitably becomes contradictory, its activities and social role are contradictory. As a form of organization of society, designed to ensure its integrity and manageability, the state performs functions determined by the needs of society, and therefore serves its interests. According to K. Marx, the state integrates class society, becomes a form of civil society, expresses and officially represents this society as a whole. In addition, it is an organization for the management of the affairs of the whole society, carrying out the general affairs arising from the nature of any society. It is the political organization of the entire population of the country, its common property and cause. Without the state, social progress, the existence and development of a civilized society are impossible. However, in a class-antagonistic society, the state, performing general social functions, increasingly subordinates its activities to the interests of the most economically powerful class, turns into an instrument of its class dictatorship, and acquires a clearly expressed class character. It is in this that the contradictory nature and social role of the state are most clearly manifested. The history of the state is inseparable from the history of society. It, together with society, goes through a long historical path from the undeveloped to the developed, acquiring new features and properties along the way. For an undeveloped state, it is characteristic that the whole complex of state institutions is not developed in it, does not receive proper development, and it is reduced, in essence, to political (state) power, based mainly on the apparatus of coercion. The state becomes developed gradually, as it reaches a certain level of civilization and democracy. It "provides organization in the country on the basis of economic and spiritual factors and implements the main thing that civilization gives people - democracy, economic freedom, freedom of an autonomous individual." In such a state, all its institutions and structures develop, and their social potential is revealed. Moreover, the state does not change and improve on its own. It is transformed, adapted to changing conditions by people of different eras and countries. Therefore, there is every reason to consider the state as one of the most significant achievements of world history and civilization. Comprehensively revealing the concept, essence, multilateral facets, properties and features of the state is an extremely difficult task. It can be solved only by studying the state concretely historically, in its various connections with the economy, socio-political and spiritual life of society, making maximum use of past and present scientific achievements. 2. Pluralism in understanding and defining the state Since ancient times, thinkers have tried to answer the question of what a state is. Even the ancient Roman orator, philosopher and politician Marcus Tullius Cicero asked and answered at the same time: "And what is a state, if not a general legal order?" Cicero had many followers at different times and in different countries - the founder of the normative theory of law G. Kelsen, the Russian economist and philosopher P. Struve, etc. The prominent jurist N.M. Korkunov. He argued that "the state is a social union of free people with a forcibly established peaceful order by granting the exclusive right of coercion only to state bodies." In a word, many scientists characterized the state as an organization of law and order (order), saw in that its essence and main purpose. But this is only one of the signs of this phenomenon. In the bourgeois era, the definition of the state as an aggregate (union) of people, the territory occupied by these people, and power became widespread. The well-known statesman P. Dyugi distinguishes four elements of the state: 1) the totality of human individuals; 2) a certain territory; 3) sovereign power; 4) government. "Under the name of the state, - wrote G.F. Shershenevich, - is understood the union of people settled within certain boundaries and subject to one authority." The definition under consideration, which correctly reflects some features (signs) of the state, was the reason for various simplifications. Referring to it, some authors identified the state with the country, others with society, and still others with the circle of persons exercising power (the government). IN AND. Lenin criticized this definition for the fact that many of his supporters called coercive power among the distinguishing features of the state: "Coercive power exists in every human community, and in the tribal structure, and in the family, but there was no state here." Supporters of the psychological theory of law do not agree with the above concept. "The state is not a collection of people of a certain kind, - F.F. Kokoshkin argued, - but the relationship between them, a form of community life, a certain mental connection between them." However, the "form of community life", the form of organization of society - is also only one of the signs, but not the whole state. Difficulties in developing a definition of the analyzed complex and changing phenomenon gave rise in those years to disbelief in the possibility of formulating it at all. M. Weber, in particular, wrote: “After all, the state cannot be sociologically defined based on the content of its activities. There are almost no such tasks that the political union would not take into its own hands here and there; on the other hand, there is no such task , of which one could say that it is at all times wholly, that is, exclusively, inherent in those unions that are called "political", that is, in our days - states or unions that historically preceded the modern state. More than once K. Marx and F. Engels turned to the definition of the state. They believed that this is "the form in which individuals belonging to the ruling class pursue their common interests and in which the entire civil society of a given era finds its concentration." Many years later, F. Engels formulated a brief, but perhaps the most confrontational definition, according to which "the state is nothing but a machine for the suppression of one class by another." IN AND. Lenin made some changes to the above definition. He wrote: "The state is a machine for maintaining the domination of one class over another." Both formulations were widespread both in science and in official propaganda. However, they are applicable only to those states in which high class tension arises and political confrontation threatens to destroy society. In other words, these definitions apply to tyrannical and dictatorial states. Bringing their violent side to the forefront, these definitions make it difficult to see valuable phenomena of civilization, culture and social order in the state. In modern educational literature, the state is usually defined as a political-territorial sovereign organization of public authority, which has a special apparatus, capable of making its decrees binding on the entire country. This definition synthesizes the most essential features and characteristics of the state and is generally acceptable, but it poorly reflects the relationship between the state and society. Therefore, we believe that the following formulation will be more accurate: the state is a political organization of society, ensuring its unity and integrity, exercising through the state mechanism the management of the affairs of society, sovereign public authority, giving law a universally binding significance, guaranteeing the rights, freedoms of citizens, law and order . The above definition reflects the general concept of the state, but is more suitable for the modern state. It emphasizes that the state is the political organization of the whole society, all its citizens. It performs vital functions for society, ensures its unity and integrity, manages the most important public affairs. At the same time, the state (especially the legal one) is called upon to fully guarantee the rights and freedoms of citizens, maintain a reliable and humane legal order in society. 3. Signs of the state The concept of the state, its characteristics are concretized when revealing the features that distinguish it both from the tribal system and from non-governmental organizations of society. In other words, the analysis of the features of the state deepens knowledge about it, emphasizes its uniqueness as an irreplaceable form of organization of society and the most important socio-political institution. What are these signs? 1. Territorial organization of the population and the exercise of public authority within the territorial limits. In a pre-state society, the belonging of an individual to one or another genus was determined by blood or supposed kinship. Moreover, the clan often did not have a strictly defined territory, moved from one place to another. In a state-organized society, the kinship principle of organizing the population has lost its significance. It was replaced by the principle of its territorial organization. The state has a strictly localized territory, to which its sovereign power extends, and the population living on it turns into subjects or citizens of the state. Thus, the spatial limits of the state arise, in which a new legal institution appears - citizenship or citizenship. The territorial organization of the population is associated not only with the emergence of the state, but also with the beginning of the formation of individual countries. Therefore, from these positions, the concepts of "state" and "country" largely coincide. The state differs from non-governmental organizations (trade unions, political parties, etc.) in that it embodies the entire population of the country, extends its power to it. Trade unions and political parties unite in their ranks a part of the population, are created voluntarily for one or another interest. 2. Public (state) power. It is called public because, not coinciding with society, it speaks on its behalf, on behalf of the entire people. Power also existed in pre-state society, but it was directly public power, which came from the whole family and was used by them for self-government. She did not need any officials or any apparatus. The fundamental feature of public (state) power is that it is embodied precisely in officials, i.e., in the professional class (rank) of managers, from which the governing and coercive bodies (the state apparatus) are completed. Without this physical embodiment, state power is only a shadow, an imagination, an empty abstraction. Embodied in state bodies and institutions, public power becomes state power, that is, the real force that ensures state coercion, violence. The decisive role in the implementation of coercion belongs to groups of armed people and special institutions (army, police, prisons, etc.). 3. State sovereignty. The concept of "state sovereignty" appeared at the end of the Middle Ages, when it was necessary to separate state power from church power and give it an exclusive, monopoly value. Today sovereignty is an obligatory feature of the state. A country that does not have it is a colony or a dominion. Sovereignty as a property (attribute) of state power lies in its supremacy, autonomy and independence. The supremacy of state power within the country means: a) the universality of its power, which extends to the entire population, all parties and public organizations of a given country; 6) its prerogatives (state power can cancel, recognize as null and void any manifestation of any other public power, if the latter violates the law); c) it has such means of influence that no other public authority has at its disposal (army, police or militia, prisons, etc.). The autonomy and independence of state power from any other power within the country and outside it is expressed in its exclusive, monopoly right to freely decide all its affairs. In the Soviet Union and the former socialist states, state power was neither supreme, nor independent, nor independent, because above it was party power. The state carried out party directives and was the executive instrument of the ruling party. All this weakened state power, became one of the reasons for the deep crisis of society and the state. 4. The inextricable link between the state and law. Without law, the state cannot exist. Law legally formalizes the state and state power and thereby makes them legitimate, i.e. legal. The state performs its functions in legal forms. Law introduces the functioning of the state and state power within the framework of legality, subordinates them to a specific legal regime. With such subordination of the state to law, a democratic legal state is formed. 4. The essence of the state The essence of the state is the meaning, the main thing, deep in it, which determines its content, purpose and functioning. So the main, fundamental in the state are power, its belonging, purpose and functioning in society. In other words, the question of the essence of the state is the question of who owns state power, who exercises it and in whose interests. That is why this issue is highly controversial. Thus, supporters of the theory of elites, which became widespread in the XNUMXth century, believe that the masses are not capable of exercising power, managing public affairs, that state power should belong uncontrollably to the top of society - the elite until one ruling elite is replaced by another. The technocratic theory adjoins the theory of elites and in many respects is consonant with it. According to representatives of this theory, professional managers and managers can and should rule and manage. Only they are able to determine the real needs of society, to find the best ways for its development. The aforementioned theories are not without certain merits, but both of them suffer from anti-democratism and tear power away from the people. Numerous adherents of various varieties of democratic doctrine proceed from the fact that the primary source and bearer of power is the people, that state power by its nature and essence must be truly popular, exercised in the interests and under the control of the people. Marxist theory proves that political power belongs to the economically dominant class and is used in its interests. Hence, the class essence of the state is seen as a machine (instrument), through which the economically dominant class becomes politically dominant, exercising its dictatorship, that is, power not limited by law and based on force, on coercion. The class approach in revealing the essence of the state is a major achievement of scientific social science. It was discovered and widely used by many scientists in different countries long before K. Marx. However, it is at least theoretically wrong to use this approach unconditionally to characterize all and every state. Yes, the class character, the class orientation of the state's activity is its essential side, its main principle. But the activity of the state, due to class contradictions, is dominant only in non-democratic, dictatorial states, where there is a harsh exploitation of one part of society by another. But even in those cases when acute class conflicts arise, the state keeps classes from mutual destruction in a fruitless struggle, and society from destruction, thereby preserving its integrity. And under these conditions, it performs certain functions in the interests of the whole society. In developed democratic countries, the state is gradually becoming an effective mechanism for overcoming social contradictions through not violence and suppression, but through the achievement of social compromise. The very existence of the state in our time is connected not so much with classes and the class struggle, but with general social needs and interests, which presupposes the reasonable cooperation of various, including contradictory, forces. The foregoing does not mean that the modern state has completely lost its class character, no, it simply faded into the background, ceased to dominate, and the general social side came to the fore. Such a state focuses its activities on ensuring social compromise, on managing the affairs of society. In other words, in a democratic state, the second, but more significant than the first, is its general social side. Therefore, the analysis of the essence of the state requires taking into account both principles. Ignoring any of them will make the characterization of this entity one-sided. The state and its essence, along with general social and class principles, are often strongly influenced by national and even nationalistic factors. Sometimes state power is in the hands of a narrow group, clan or individuals, expresses their interests, but such power usually camouflages its interests, passes them off as general social and national. 5. Economic, social and scientific foundations of the state The state cannot exist, function normally and develop without an economic foundation, the basis, which is usually understood as the system of economic (production) relations of a given society, the forms of ownership existing in it. The actual state financial and economic basis (the state budget) largely depends on the basis. World history shows that at different stages of development, the state had a different economic basis and had a different attitude to the economy. Thus, the early capitalist state relied on a free (spontaneous) market economy, undividedly dominating private property. This had a destabilizing effect on society: private property gave rise to an acute class struggle, revolutionary actions of the proletariat, and a spontaneous market - destructive crises. After major political and economic upheavals in the first half of the XNUMXth century. under the pressure of workers, state-legal regulation in the economic sphere was significantly strengthened, which led to fundamental changes in this area. Along with private capital, state, cooperative, and especially joint-stock property appeared and developed. The state adopted such management methods as planning and forecasting economic processes, and began to pursue a deep financial, tax and credit policy. All this led to the emergence of a new main function for him - to regulate the economy for anti-crisis purposes, in the interests of strengthening and developing society. In parallel with the economic, the state began to perform a social function - the adoption of pension legislation, the establishment of benefits for the unemployed, the minimum wage, etc. Under the influence of state-legal regulation, society gained, as it were, a second wind. Such a society and state is not without reason called post-capitalist. Things were different in the Soviet state. It relied on a planned economy, on public state property, which it completely controlled. Gradually, public state property turned into nobody's property, it gave rise to wastefulness and mismanagement, which ultimately led to a deep economic crisis. The foregoing allows us to conclude that private and state public (public) property are polar in nature, each of them has both advantages and disadvantages. Historical experience shows that the optimal economic basis of a modern state can be a socially oriented market economy based on a variety of forms of ownership (mixed economy), which must compete on equal terms with each other and prove their advantages. The social basis of the state is made up of those strata, classes and groups of society that are interested in it and actively support it. The state in its activities just relies on them. This means that the stability, strength and power of the state, the ability to solve the problems facing it depend on the breadth of the social base of the state, the activity of society with its support. A state with a narrow social basis is socially unstable and usually relies on violence and deceit. In such a state, various, in particular the apex, coups are possible. Any state, any state power needs the support of society, the faith of the people in their power and justice. The prestige of state power is based on the trust of the general population in it. The socio-psychological essence of power lies in respect and trust in power. It is here that the deep secret of domination is hidden, the inexplicability of which was written by many thinkers of the past, including Russians. Support by the people of the state can be conscious and unconscious. The latter is usually based on myths, emotions caused by the politics of populism, promises and promises of statesmen. Conscious support is a consequence of a comprehensive assessment of the performance of the state and its bodies. As already noted, the modern state is the product of a long history, one of the great creations of the genius of mankind. In its functioning, the state cannot rely on the method of trial and error, which means that it needs a reliable scientific foundation. It is known what a great influence on the development of statehood throughout the world was exerted by scientific concepts about the rule of law, about the separation of powers, about people's sovereignty, etc. World experience shows that all significant decisions and actions on state building require deep and comprehensive development, scientific expertise, in order to choose the most optimal from the possible options. Here, as in nothing else, the rule "Measure seven times, cut once" is very relevant. Yes, and the sad experience of our country teaches a lot: numerous experiments, transformations, restructuring, reforms in state building, carried out on the basis of subjectivism, voluntarism, usually led to negative consequences and extremely weakened our state. Today, to create a scientific basis for the Russian state, wide opportunities have opened up not only for the legal sciences, but also for all other humanities. 6. Regularities of the development of the state The identification and analysis of recurring, i.e., regular, connections that determine the course of development of the state, allow both to see the present and look into the future of this phenomenon. The state as a relatively independent phenomenon has its own patterns of development. However, it receives the main impetus for moving forward from interaction with a dynamically developing society. One of the main patterns of the evolution of the state is that as civilization improves (as a set of material and spiritual achievements of society) and democracy develops, it turns from a primitive, "barbaric" formation of a coercive-repressive nature into a political organization of society, where the entire complex of state institutions in accordance with the principle of separation of powers. A democratically developing society needs its diverse objective needs to be in the center of attention of the state, it stimulates the development of the general social functions of the state. Perhaps, here is the source of a new regularity in the development of the modern state - the increase in its role in the life of society. This regularity manifested itself in full measure in the second half of the XNUMXth century. The state began to extend its organizing and guiding activities to the economic, social and cultural spheres of society through newly created institutions and bodies - the ministries of economy, labor, culture, education, etc. In this regard, the opinion that a number of other trends can also be noted in the “development of the state: the state’s “withdrawal” from the economy, its ever-increasing distance from economic life, from performing the functions of the owner.” Practice has shown that it is precisely today that For many reasons, the state "came" into the economy and thereby stabilized economic life, protected it from economic upheavals in many countries of the world.Under the influence of the scientific and technological revolution and the beginning of the process of world integration, the creation of a world market, a new pattern appeared in the development of the state - the rapprochement of various states , their mutual enrichment as a result of interaction. Thus, at one time, Western states, to one degree or another, adopted from the socialist states the social orientation of their activities, planning. Today, Russia is learning from Western states about the separation of powers, parliamentary culture, and the construction of a rule-of-law state. Under the influence of this regularity acute confrontation, ideological war, distrust and suspicion are a thing of the past. True, these regularities represent general trends, the main lines of evolution of the states of our planet. The development of a particular state is often very contradictory. Zigzags, reversals, unpredictable shying from one extreme to another, especially when state power is used for personal, group, clan interests, subordinated to narrow party goals and objectives, sometimes make this development very contradictory. 7. Correlation between state and law The rather complex problem of the relationship between state and law has recently become debatable. Two opposite theoretical positions on this problem have been formulated in the literature. The ethical-totalitarian concept proceeds from the fact that the state is higher and more important than law, that it creates law and uses it as an instrument of its policy. This concept is based on the Marxist understanding of the state and law and was widely distributed in domestic scientific and educational literature. The liberal concept is based on the natural law theory, according to which law is higher and more important than the state. It has become actively affirmed in our public consciousness in recent years. Both concepts do not have any serious scientific justification. They not only do not analyze the correlated phenomena, but, in fact, oppose them to each other. In practice, the opposition, the clash of state and law inevitably leads only to their mutual weakening. In reality, the relationship between state and law is quite complex. Therefore, the relationship between them should be carried out from the point of view of analyzing their unity, difference and multilateral influence on each other. State and law are inseparable. As superstructural phenomena, they have a single socio-economic basis, they have in many respects the same fate, they cannot exist and develop without each other. At the same time, the state and law differ in their structure, methods of functioning, etc. For example, if the working, mechanism part of the state consists of bodies and institutions in which people work, then the central part, the “core” of law, are norms that are combined in legal institutions, industries. The state is included in the political system of society as its core element, law - in the regulatory system. Perhaps the most important aspect of the correlation under consideration, which needs detailed scientific study, is the impact of the state on law and the influence of law on the state. We emphasize that only with active interaction can the state and law fully and effectively function, acquire social value. Modern legal science believes that the main spheres of state influence on law are law-making and (especially) law enforcement. Historical experience shows that the state is actively involved in law-making, but its role in this process cannot be absolute. Such absolutization is precisely the fundamental shortcoming of legal positivism. The state literally does not create, does not create law, it legally formalizes and consolidates only what has already matured in society in the form of objective needs, claims - public legal and moral ideals and other generally significant factors. But one way or another, the state gives the law important properties - formal certainty, universal validity. Even more significant is the role of the state in the implementation of law, in its implementation. After all, a non-working, non-realized right is dead. And here V.I. is largely right. Lenin, who argued that "law is nothing without an apparatus capable of forcing compliance with the norms of law." Indeed, what would be the significance of the norms of, say, administrative or criminal law without law enforcement agencies? The authority and real power of the state always stand behind the law. At the same time, the state itself must strictly observe and comply with legal requirements, and along with the state, citizens and civil society institutions can and should actively participate in the implementation of the law. So, law cannot do without the support and influence of the state, but the state itself objectively needs law. In other words, a stable functional mutual influence develops between them. Law legally formalizes the state, regulates all the main aspects of its functioning, and thereby gives the state and its activities a legitimate character. It regulates the procedure for the formation of state bodies, consolidates their competence and streamlines their relations with each other, subordinates the activities of the state to a certain legal regime, establishes the limits of state intervention in the work of civil society institutions, the private life of citizens, etc. With the help of law, the type and measure of state coercion, as a result of which it becomes legal and controllable. Law is the most important and necessary means of legal communication with all subjects of law both within the country and abroad, with the world community as a whole. In recent years, the ideas "Law is higher than the state", "Law is primary, the state is secondary", borrowed from the early bourgeois liberal doctrine of natural law, have been introduced into the public consciousness. Maybe with the help of these ideas somehow managed to raise the prestige of law in our society? Perhaps, on the contrary: the opposition of law to the state, and especially law to law, served as one of the reasons for the spread of lawlessness, lawlessness and weakening of the state. Chapter 10 1. The concept and properties of state power State power is a fundamental category of state science and the most incomprehensible phenomenon of people's social life. The concepts of "state power", "power relations" refract the most important aspects of the existence of human civilization, reflect the harsh logic of the struggle of classes, social groups, nations, political parties and movements. It is no coincidence that the problems of power worried scientists, theologians, politicians, and writers in the past and are now worried. Being a kind of social power, state power has all the features of the latter. However, it has many quality features. The most important feature of state power lies in its political and class nature. In scientific and educational literature, the terms "state power" and "political power" are usually identified. Such an identification, although not indisputably, is admissible. In any case, state power is always political and contains an element of class. The founders of Marxism characterized state (political) power as "organized violence of one class to suppress another." For a class-antagonistic society, this characterization is by and large correct. However, any state power, especially a democratic one, can hardly be reduced to "organized violence." Otherwise, the idea is created that state power is a natural enemy to all living things, to all creativity and creation. Hence the inevitable negative attitude towards the authorities and persons personifying it. Hence the far from harmless social myth that all power is an evil that society is forced to endure for the time being. This myth is one of the sources of various projects to curtail state administration, first to diminish the role, and then to destroy the state. Meanwhile, truly people's power functioning on a scientific basis is a great creative force that has a real ability to control the actions and behavior of people, resolve social contradictions, coordinate individual or group interests, subordinate them to a single powerful will by methods of persuasion, stimulation, coercion. A feature of state power is that its subject and object usually do not coincide, ruling and subject are most often clearly separated. In a society with class antagonisms, the dominant subject is the economically dominant class, while individuals, social, national communities, and classes are subordinate. In a democratic society, there is a tendency for the subject and object of power to converge, leading to their partial coincidence. The dialectic of this coincidence is that every citizen is not only subject; as a member of a democratic society, he has the right to be an individual bearer and source of power. He has the right and must actively participate in the formation of elected (representative) bodies of power, nominate and elect candidates for these bodies, control their activities, be the initiator of their dissolution and reform. The right and duty of a citizen is to participate in the adoption of state, regional and other decisions through all types of direct democracy. In a word, under a democratic regime there is not and should not be only those in power and only those who are subject. Even the highest organs of the state and the highest officials have the supreme power of the people over them, they are both an object and a subject of power. At the same time, there is no complete coincidence of subject and object in a democratic state-organized society. If democratic development leads to such a (complete) coincidence, then state power will lose its political character, turn into a directly public one, without state and state administration bodies. State power is exercised through public administration - the targeted impact of the state, its bodies on society as a whole, one or another of its spheres (economic, social, spiritual) on the basis of known objective laws to fulfill the tasks and functions facing society. Another important feature of state power is that it is manifested in the activities of state bodies and institutions that form the mechanism (apparatus) of this power. That is why it is called state because it practically embodies it, puts it into action, puts into practice, first of all, the mechanism of the state. Apparently, therefore, state power is often identified with state bodies, especially the highest ones. From a scientific point of view, such an identification is unacceptable. First, state power can be exercised by the ruling subject itself. For example, the people, through a referendum and other institutions of direct (direct) democracy, make the most important state decisions. Secondly, political power initially belongs not to the state, its bodies, but either to the elite, or to the class, or to the people. The ruling subject does not transfer his power to the state bodies, but gives them powers of authority. State power can be weak or strong, but devoid of organized power, it loses the quality of state power, as it becomes unable to put the will of the ruling subject into practice, to ensure law and order in society. State power is not without reason called the centralized organization of power. True, any power needs the power of authority: the deeper and more fully the power expresses the interests of the people, all strata of society, the more it relies on the power of authority, on voluntary and conscious submission to it. But as long as state power exists, it will also have objective material sources of power - armed organizations of people or law enforcement agencies (army, police, state security agencies), as well as prisons and other compulsory material appendages. Organized force provides state power with coercive ability, is its guarantor. But it must be guided by the rational and humane will of the ruling subject. If state power relies only on material force to solve internal problems, this is true proof of its instability and fragility, its lack of deep and strong roots in society. The use of all available force is unconditionally justified in repelling aggression from outside or in suppressing crime. Thus, state power is a concentrated expression of the will and strength, the power of the state, embodied in state bodies and institutions. It ensures stability and order in society, protects its citizens from internal and external encroachments through the use of various methods, including state coercion and military force. 2. Methods of exercising state power The arsenal of methods for implementing state power is quite diverse. In modern conditions, the role of methods of moral and especially material incentives has significantly increased, using which state bodies influence the interests of people and thereby subordinate them to their imperious will. The general, traditional methods of exercising state power undoubtedly include persuasion and coercion. These methods, combined in different ways, accompany state power throughout its entire historical path. Persuasion is a method of actively influencing the will and consciousness of a person by ideological and moral means to form his views and ideas based on a deep understanding of the essence of state power, its goals and functions. The mechanism of persuasion includes a set of ideological, socio-psychological means and forms of influence on individual or group consciousness, the result of which is the assimilation and acceptance by the individual, the collective of certain social values. The transformation of ideas, views into beliefs is connected with the activity of consciousness and human feelings. Only after passing through the complex mechanism of emotions, through consciousness, ideas, public interests and demands of power acquire personal significance. Beliefs differ from simple knowledge in that they are inseparable from the personality, they become its bonds, from which it cannot break out without harming its worldview, spiritual and moral orientation. According to D.I. Pisarev, "ready-made convictions can neither be begged from good friends, nor bought in a bookstore. They must be developed by the process of one's own thinking, which must certainly be carried out independently in our own head ..." A well-known Russian publicist and philosopher of the second half of the XNUMXth century. did not at all rule out the educational, persuasive influence on the part of other people, he only emphasized self-education, a person’s own mental efforts, and the constant “work of the soul” to develop strong convictions. Ideas quickly turn into convictions when they are gained through suffering, when a person independently obtained and assimilated knowledge. The method of persuasion stimulates the initiative and a sense of responsibility of people for their actions and deeds. There are no intermediate links between beliefs and behavior. Knowledge, ideas that are not embodied in behavior cannot be considered true beliefs. From knowledge to conviction, from conviction to practical action - this is how the method of persuasion functions. With the development of civilization, the growth of political culture, the role and significance of this method of exercising state power naturally increase. State power cannot do without a special type of coercion inherent only to it - state coercion. Using it, the ruling subject imposes his will on the subject. In this, state power differs, in particular, from authority, which also subjugates, but does not need state coercion. State coercion is the psychological, material or physical (violent) influence of the authorized bodies and officials of the state on a person in order to force (force) him to act at the behest of the ruling subject, in the interests of the state. In itself, state coercion is a sharp and harsh means of social influence. It is based on organized power, expresses it, and therefore is able to ensure the unconditional dominance of the will of the ruling subject in society. State coercion limits the freedom of a person, puts him in a position where he has no choice, except for the option proposed (imposed) by the authorities. Through coercion, the interests and motives of antisocial behavior are suppressed, inhibited, contradictions between the general and individual will are forcibly removed, and socially useful behavior is stimulated. State coercion is legal and non-legal. The latter can turn into the arbitrariness of state bodies, placing a person in a position that is not protected by anyone and nothing. Such coercion takes place in states with an anti-democratic, reactionary regime - tyrannical, despotic, totalitarian. State coercion is recognized as legal, the type and measure of which are strictly defined by legal norms and which is applied in procedural forms (clear procedures). The legitimacy, validity and fairness of state legal coercion is controllable, it can be appealed to an independent court. The level of legal "saturation" of state coercion is due to the extent to which it: "a) is subject to the general principles of a given legal system, b) is on its own grounds uniform, universal throughout the country, c) is normatively regulated in terms of content, limits and conditions of application d) operates through the mechanism of rights and obligations, e) is equipped with advanced procedural forms". According to Denis Shevchuk, the higher the level of legal organization of state coercion, the more it performs the functions of a positive factor in the development of society and the less it expresses the arbitrariness and self-will of the holders of state power. In a legal and democratic state, state coercion can only be legal. Forms of state legal coercion are quite diverse. These are preventive measures - checking documents in order to prevent offenses, stopping or restricting the movement of vehicles, pedestrians in case of accidents and natural disasters, etc.; legal suppression - administrative detention, arrest, search, etc.; protection measures - restoration of honor and good name and other types of restoration of violated rights. 3. Economic, social and moral-ideological foundations of state power State power is ultimately determined by economic power. It expresses in a concentrated form the economic needs and interests of the ruling subject. State power not only rests on an economic foundation, but also ensures order and stability of economic relations, protects them from arbitrariness and anarchy, and protects existing forms of ownership. Any power is truly stable and strong primarily due to its social basis. State power functions in a society divided into classes, various social groups with conflicting, often irreconcilable interests. Without a strong, actively functioning state power, diverse social and national forces can tear society apart, plunge it into the abyss of "clarifying" interests with the help of unbridled ochlocratic power. In order to resolve social contradictions, to organize interpersonal, intergroup, interclass and national relations, to harmonize various interests, the state power is looking for support in society, gaining confidence in itself from certain sections of society. Only a democratic government can solve such problems. The faith of the people in the humane goals and actions of the government, trust in it is usually called the social legitimacy of the government, the most important condition for its stability. Whatever the state power, it always strives to create in society an idea of itself as an exemplary moral one, even if this does not correspond to reality. Even in ancient Greece and Rome, moral ideals were formed that power should strive for: it exists only for good, is realized for the common good, always follows justice, etc. That is why power, pursuing goals and using methods that are contrary to moral ideals and values, was and is recognized as immoral, devoid of moral authority. For state power, its usefulness is of great importance historical, socio-cultural, national traditions. If power is based on traditions, then they root it in society, make it stronger and more stable. It is no coincidence that both past and modern states carefully treated and still treat traditions, their historical, national, socio-cultural roots. Thus, state power, economically, socially and morally determined, based on traditions, values accepted in society, becomes authoritative and respected in the eyes of the people. It is much less likely to use the method of state coercion to achieve its goals. 4. State power and ideology State power, based only on violence and coercion, is fragile and short-lived, since it gives rise to growing opposition in society. Therefore, it objectively needs an ideology, that is, a system of ideas closely connected with the interests of the ruling subject. With the help of ideology, the authorities explain and justify their goals and objectives, methods and ways of achieving and fulfilling them. Ideology provides the authorities with a certain authority, proves the identity of its goals with the people's interests and goals. Depending on how the interests and goals of the ruling and the ruled coincide, the state ideology can be populist, mythical and deceitful. There are two main types and many varieties of ideologies of state power. The first type is a religious ideology based on religious teachings and myths. It seeks to give power a mysterious, mystical and sacred character, inspires the idea of its divine origin and destiny. The second type is a secular ideology, which is based on the theories and customs prevailing in society and is aimed at achieving certain, often mythical ideals. For example, myths about the hasty construction of a bright communist future or a prosperous American-style capitalism have provided and continue to provide the authorities with the support of at least a part of society. The role of ideology is especially great where state power is exercised through anti-democratic totalitarian, dictatorial regimes. Here, the false ideology is usually aimed at praising the role of the "leader", the dictator, at justifying any decisions and actions. Under the influence of such an ideology, personality cults are created and maintained - blind, thoughtless admiration for mythical superpersonalities, their deification. The cult ideology inevitably alienates, rejects the people from power. 5. Legitimacy and legality of state power In a broad sense, legitimacy is the acceptance of power by the population of the country, the recognition of its right to manage social processes, and the willingness to obey it. In a narrow sense, legitimate power is recognized as legitimate power, formed in accordance with the procedure provided for by legal norms. It is necessary to distinguish between the legitimacy of the primary source of power and the legitimacy of public authorities. The legitimacy of the primary source of power (the ruling subject) is reflected and legally enshrined in the country's constitution. So, paragraph 1 of Art. 3 of the Constitution of the Russian Federation states: "The bearer of sovereignty and the only source of power in the Russian Federation is its multinational people." This means that the Constitution proclaims and defines the multinational people of Russia as the first bearer and primary source of state power, thereby emphasizing its legitimacy. State bodies acquire the property of legitimacy in different ways. Representative bodies become legitimate on the basis of holding elections provided for and regulated by law. These bodies receive power directly from the source of power. Governing bodies acquire legitimacy through competitive selection, their appointment, most often as representative bodies, and in the manner prescribed by law. The authorities exercised by the state authorities, methods of activity, especially the method of state coercion, must also be legitimate. Illegitimate power is recognized as usurper. In the narrow sense of the word, usurpation is a violent illegal seizure of power by any person or group of persons, as well as the appropriation of other people's powers. Usurpation is recognized, for example, as a violation of legal procedures during elections or their falsification. It is also possible to usurp legitimately formed power if it is abused, i.e. used for illegal purposes to the detriment of society and the state, exceed authority, etc. In paragraph 4 of Art. 3 of the Constitution of the Russian Federation says: "No one can appropriate power in the Russian Federation. The seizure of power or the appropriation of power is punishable by federal law." The legal expression of the legitimacy of power is its legality, i.e. normativity, the ability to be embodied in the rules of law, be limited by law, and function within the framework of legality. In society, illegal, for example, mafia-criminal power, gravitating towards harsh forms of coercion and violence, is also possible. If legal power relies on officially recognized, documented and known to society norms, then criminal, illegal - on unwritten rules of behavior known only to a certain circle of people. The legal government seeks to stabilize society, establish order in it, while the illegal one is like cancer cells that infect and destroy the healthy tissue of society. 6. Power relations Solving the tasks facing it, state power continuously influences social processes and is itself expressed in a special kind of relations - power relations, which form a kind of political and legal fabric of society. Like any relationship, power relationships have a structure. The parties to these relations are the subject of state power and the object of power (subjects), and the content forms the unity of the transfer or imposition of the will of the ruling on the subject and the subordination (voluntary or forced) of the latter to this will. The subject of state power, as already noted, can be social and national communities, classes, people, on behalf of which state bodies act. The object of power is individuals, their associations, layers and communities, classes, society. The essence of power relations lies in the fact that one side - the ruling one - imposes its will, usually erected into law and legally binding, on the other side - subject to, directs their behavior and actions in the direction determined by legal norms. Methods that ensure the dominance of the will of the ruling subject depend on the interests and volitional position of the parties. If the interests and will of the ruling subject and those subject to coincide, which is possible in democratic states, then power relations are realized without hindrance, without external influence. If the interests and will of the parties diverge in some way, then the methods of persuasion, stimulation, agreement (compromises) are appropriate and effective. In those cases where the positions of the ruling and the ruled are opposite and irreconcilable, the method of state coercion is used. 7. Union and separation of powers The terms "connection" and "separation" of powers denote the principles of organization and the mechanism for the implementation of state power. The latter is inherently one and cannot be divided into parts. It has a single primary source - community, class, people. But the state power is organized and exercised in different ways. Historically, the first was such an organization of state power, in which all of its fullness was concentrated in the hands of one body, usually the monarch. True, elected bodies can also be sovereign (for example, the Soviets of People's Deputies of the USSR were considered such). The principle of combining the legislative, executive and partly the judiciary turned out to be very tenacious, since such a connection has a number of advantages: a) ensure prompt resolution of any issues; b) eliminates the possibility of shifting responsibility and blame for errors to other bodies; c) "liberates" from the struggle with other bodies for the amount of power, etc. This principle has found support among prominent thinkers. Hegel, for example, wrote: "State power should be concentrated in one center, which makes the necessary decisions and, as a government, monitors their implementation." And yet, the concentration of all power in one body is fraught with irreparable shortcomings and vices. Omnipotent bodies become completely uncontrolled, they can also get out of control of the ruling subject (the primary source of power). With such an organization of state power, scope opens up for the establishment and functioning of dictatorial and tyrannical regimes. The principle of separation of powers is a rational organization of state power in a democratic state, in which flexible mutual control and interaction of the highest bodies of the state are carried out as parts of a single power through a system of checks and balances. Power corrupts people, but uncontrolled power corrupts doubly. Perhaps the most difficult question is how to ensure control over the activities of the highest bodies of the state, because it is impossible to establish some kind of controlling authority over them without infringing on their status and prestige. Otherwise, they will automatically lose the quality of the higher, turn into controlled bodies. The answer to this question was given by the principle of separation of powers, on the development of which many scientists worked, but the special merit here belongs to C. Montesquieu. The essence of this principle is that the unified state power is organizationally and institutionally divided into three relatively independent branches - legislative, executive and judicial. In accordance with this, the highest bodies of the state are created, which interact on the basis of checks and balances, exercising constant control over each other. As C. Montesquieu wrote, "in order not to be able to abuse power, such an order of things is necessary in which various authorities could mutually restrain each other." The highest bodies of the state, acting on the basis of this principle, have independence. But among them there must still be a leading body, otherwise a struggle for leadership arises between them, which can weaken each of the branches of power and state power as a whole. The creators of the doctrine of the separation of powers believed that the leading role should belong to the legislative (representative) bodies. The executive power, personified by the president and the government, must be subordinate to the law. Its main purpose is the execution of laws, their implementation. There is a great force subordinate to the executive power - the bureaucracy, "power" ministries and departments. All this constitutes an objective basis for the possible usurpation of the entirety of state power just by the executive authorities. The judiciary is called upon to have the highest degree of independence. The special role of the court is due to the fact that it is an arbitrator in disputes about law. The principle of separation of powers is implemented to some extent in all democratic countries. Its fruitfulness is determined by many factors. Firstly, the implementation of this principle inevitably leads to the division of labor between state bodies, as a result of which an increase in the efficiency of their activities is ensured (since each body specializes in “its own” work), conditions are created for the growth of professionalism of their employees. Secondly, this principle makes it possible to solve the most difficult problem - to create a continuously functioning constitutional mutual control of the highest bodies of the state, which prevents the concentration of power in the hands of one of the bodies and the establishment of a dictatorship. Finally, thirdly, the skillful use of the principle of separation of powers mutually reinforces the highest bodies of the state and increases their authority in society. At the same time, the principle under consideration opens up considerable opportunities for negative consequences. Often, legislative and executive bodies seek to shift responsibility for failures and errors in their work onto each other, sharp contradictions arise between them, etc. 8. State power and the state The problem of the relationship between state power and the state is among the little studied. State power and the state are in a complex dialectical unity, and therefore the question of the relationship between them can be approached from different points of view. If the state is understood as a political-territorial organizational form of society, then state power is the most important feature of the state, the roots of which go deep into society. If the state means a specially organized mechanism (apparatus) of political (state) power, then they are related as content and form. Moreover, the nature of state power determines the features of the state, its mechanism. Thus, the ownership of power by an exploiting minority (the ruling oligarchy), the need to impose the will of the ruling minority on the subservient majority bring to the fore coercive, punitive organs in the mechanism of the state. On the contrary, in democratic countries, the state and its organs serve the society, and in the mechanism of the state, the organs that carry out general social functions become the most important. As a general rule, the ruling subject determines to what extent and in what form this or that body of the state will express and implement its imperious will, establish legal limits for state bodies, within the boundaries of which their activities are recognized as lawful. At the same time, the state and its bodies largely determine the effectiveness of this power. Sometimes the highest organs of the state acquire extreme independence, rise above society, nationalize it, but this is the lot of dictatorial states. Chapter 11. Functions of the State 1. The concept, meaning and objective nature of the functions of the state Any state with varying degrees of activity, but constantly acting, because passivity, inactivity are contraindicated to its very nature and purpose. In this chapter, the state is considered from its functional, activity side. The functional approach, firstly, helps to better understand the very concept of the state, to see its historical purpose and role in the life of society; secondly, it makes it possible to scientifically outline the content of the activity of the state, its mechanism in specific historical conditions; thirdly, it serves the purposes of improving the organizational structure of the state for the qualitative implementation of public administration. The functions of the state are the main directions of its activity, expressing the essence and social purpose, goals and objectives of the state in managing society in its inherent forms and methods. The above definition helps to identify the following most significant features of the functions of the state. 1. The function of the state is not any, namely the main, main direction of its activity, without which the state at a given historical stage or throughout its entire existence cannot do. This is a stable, established substantive activity of the state in a particular area - in the economy, politics, nature conservation, etc. 2. In the functions, the deepest and most stable in the state, its essence, is objectively expressed. Therefore, through functions, one can learn the essence of the state, its multilateral ties with society. 3. Performing its functions, the state thereby solves the tasks facing it in managing society, and its activities acquire a practical orientation. 4. Functions of the state - the concept of management. They specify the goals of public administration at each historical stage in the development of society. 5. Functions are implemented in certain (mainly legal) forms and special methods characteristic of state power. The functions of the state are essentially objective. They are determined by the laws of interaction between society and the state, and therefore the latter has no choice whether to fulfill them or not to fulfill them. Failure by the state to fulfill its functions will undoubtedly cause a chain reaction of negative consequences in public life. So, if the state ceases to exercise the function of ensuring law and order, society will inevitably be destabilized, anarchy will set in, leading to its destruction. At the same time, the objective nature of the functions of the state does not mean at all that they are implemented against the will and consciousness of people. On the contrary, the role of the subjective factor is very great here. The state functions fruitfully only when its functions fully correspond to the objective needs of society. This means that the objective social needs must first be recognized, and only then the functions of the state and the mechanism for their implementation should be determined. And all this is provided by the conscious activity of people. Errors and shortcomings in the functioning of the state turn into crisis phenomena for society of varying severity. The functions of the state are different, the order of their occurrence and change depends on the order of tasks that society faces in the course of its evolution, and the goals that it pursues. A task is something that requires permission, and a function is an activity aimed at such permission. In other words, tasks and functions are interrelated, but not identical concepts. In certain historical periods, various tasks and goals of the state, and, consequently, its various functions, become priorities. The performance of any tasks leads to the disappearance of some functions, the appearance of new ones leads to the emergence of others. Each function of the state has its own object of influence and its content. Object - a certain sphere of social relations (economy, culture, etc.), which is directed by state influence. Objects and serve as a criterion for delimiting the functions of the state. The content of the functions shows what the state does, what management actions it performs in this area, what exactly its relevant bodies are doing. The functions of the state must be distinguished from the functions of its separate body. The latter reveal the social purpose of a particular body, which, through functions, implements its competence. In contrast to the functions of state bodies, the functions of the state are performed by all or many bodies. However, the foregoing does not exclude the possibility that individual state bodies play a predominant (leading) role in the implementation of any function of the state. Thus, protecting the country from outside attack is the main task of the military department. All functions of specific state bodies are subordinate to the functions of the state and cannot contradict them. Therefore, the activities of state bodies should proceed in line with the main functions of the state. 2. Classification and evolution of state functions The problem of classifying the functions of the state is complicated by the fact that the functions of various historical types of states differ significantly. And yet they can be classified according to some common characteristics. As already noted, the functions of any state are decisively influenced by its essence. The essence of the state is contradictory, it has two main sides, two principles - general social and class. The general social principle is conditioned by the needs of society as a whole, while the class principle is determined by its class contradictions. Until recently, it was generally recognized that all the functions of the state stem from class contradictions and have a class character, that there are no and cannot be supra-class, general social functions. This distorted the idea of the interaction between society and the state. In reality, even a society divided into classes is a single, integral organism in which opposing classes, social groups and sections of the population coexist and interact. The state as a form of organization of such a society cannot but carry out general social activity, cannot but act in a number of its areas as a representative of the interests of the whole society, all classes, groups and strata of the population. So, already the Eastern despotic slave-owning states performed an economic function - they organized public works to build canals and dams, drain swamps, etc. The feudal states also made attempts to regulate the socio-economic life of the country (pursued a policy of protectionism, took separate steps in the field of education and health ). All these states ensured the rule of law, without which no society can do. The development of civilization and democracy opens up great scope for the general social activity of the state. In our time, the general social functions of the state (economic, social, maintenance of democratic law and order) are becoming a priority. The activities of the state in the spiritual sphere (education, culture, science) are expanding and becoming more active. Today, global problems that are acutely affecting universal interests are particularly relevant today - the protection of nature and the environment throughout the planet, the fight against international crime, demographic problems, etc. law enforcement, international environmental, etc. The general social functions of the state provide the necessary degree of stability of relations and ties within society, its integrity and unity on the basis of general social needs and interests (economic, social, spiritual, national). The greater the proportion of the state's general social functions, the higher its role in society as a reliable tool for overcoming contradictions, as a means of reconciling various interests and achieving social compromise. Methods of violence and coercion are not very suitable here, and therefore the state has to turn to democratic, humanistic institutions and ideas (rule of law, the rule of law in all spheres of society, respect for human rights and freedoms, protection of national minorities, strengthening legal guarantees of law and order, etc.). d.). Trust in the state, state power, the degree of their support by the population (social legitimacy of power) are directly dependent on the democratic content of the functions of the state, its ability and desire to take into account diverse class, group, national and other social interests in its activities. "A state that openly violates human rights, ignores its inalienable, natural rights and freedoms, carries out repressions against its people or individual national groups, and prevents contacts between people and organizations of different countries, cannot be considered civilized. It has no right to count on normal cooperation with others states, on the favorable public opinion of the world society" In a class society, where classes and other social groups oppose each other primarily on economic grounds, where the fundamental interests of classes are irreconcilable, the state becomes the political organization of the power of the economically dominant class and serves its interests. Hence the main function of such a state is to suppress the resistance of the exploited classes or social groups, which has a clearly defined class orientation. But its other functions also acquire a certain class coloring. The above applies to the slave-owning, feudal and capitalist (XNUMXth and first quarter of the XNUMXth centuries) society. In the second half of the XNUMXth century, significant changes took place in the classes themselves, a middle class appeared - a stabilizing factor in society. This was reflected in the functional activities of the state: the functions born of class contradictions faded into the background, the forms and methods of their implementation changed. So, according to the reasons (sources) for the emergence of the function of the state, it can be divided into: a) functions arising from class contradictions (suppression of the resistance of the exploited classes, etc.); b) functions arising from the needs of society as a whole (ensuring law and order, protecting nature and the environment, etc.). According to the direction of the functions of the state are divided into internal and external. Internal functions are aimed at solving the internal problems of the country, show the degree of activity of the state's influence on a given society, and external - at establishing and maintaining certain relations with other states. Internal and external functions are closely related and complement each other. Among the internal ones, a block of protective functions can be distinguished - the protection of existing forms of ownership, the provision (protection) of law and order, the protection of nature and the environment, economic, socio-cultural and other functions. The protection of existing forms of ownership is a function inherent in all states, for they guard and protect their economic foundation. Moreover, in societies where the main economic potential was concentrated in the hands of one class or another (in exploitative societies), state activity was aimed at protecting slave-owning, feudal, capitalist private property, for encroachments on which more severe penalties were established than for encroachments on other property. kinds. In democratic societies, the principle of equal legal protection of all forms of ownership operates. The protection of law and order is the most important and necessary function of any state, arising from the needs of society. In a democratic state, the protection of the rights and freedoms of citizens comes to the fore, without which a genuine law and order is impossible. Therefore, this function is modified and becomes a function of protecting the rights and freedoms of citizens and the rule of law. The function of protecting nature and the environment has become one of the main ones in recent decades. Environmentally aggressive production has become aggressive in relation to a person, his health. Therefore, the state is forced to engage in this activity. The second half of the XNUMXth century is characterized by the fact that in the developed countries of the world, the economic function has become one of the main ones. Now the state intervenes in the economy, determines the rate of its growth, establishes the proportions between its individual branches. The state sector of the economy emerged, i.e. state property, and state management of enterprises and organizations based on it. In most countries, the state is the largest entrepreneur: numerous joint-stock companies are state-owned enterprises. It plays the role of a big banker who has concentrated in his hands a large mass of loan capital. The modern state is able to predict and flexibly regulate economic processes throughout the country. The economic function of the state has an anti-crisis focus and is aimed at creating a socially oriented market economy that takes into account and harmonizes the interests of producers and consumers. The legislation on companies, on joint-stock companies and other associations is devoted to this. It protects the rights and interests of citizens - investors, shareholders, consumers, does not allow unscrupulous counterparties to participate in the market. The state adopts antimonopoly legislation, licenses the production of many types of consumer goods and trade in these goods, controls the export and import of a number of goods, stimulates the development of priority industries, etc. In a word, the economic function is determined by the needs of the development of society as a whole. The social function of the state is closely connected with the economic one. It is diverse in content and large-scale in terms of the scope of state activity. Its main purpose is to eliminate or mitigate possible social tension in society, to try to equalize the social position of people, to develop health care, education, and culture. To perform a social function, the state creates funds that are spent on pensions, benefits, health care) education. It develops and implements programs that stabilize employment and reduce unemployment, regulates (to one degree or another) wages, etc. The social activity of the state is regulated by a special branch - social law. In such developed countries as, for example, Germany, the Social Code has been in force for many years, which brings together (codified) the norms on various types of social benefits and social security, on various forms of social assistance (victims of war, families of military personnel, youth, children, large families, etc.). In all this, the goal of the state is clearly traced - to provide a person with a decent existence, free development of the individual, protection of the family, social justice and social security. In modern conditions, the role of the state in the maintenance and development of health care, public education and culture is increasing. To manage these types of activities, the state creates appropriate bodies and institutions, finances them. In recent decades, many advanced states of the world have been actively implementing the function of developing scientific and technological progress. The sphere of scientific and technical research carried out on a state basis is constantly expanding. This is due to the fact that the modern scale of scientific research and experimental work has greatly increased. Therefore, the state assumes the responsibility of stimulating technical progress and almost fully pays for the costs of fundamental theoretical research. The external functions of the state have traditionally been to protect the country from attack from outside; waging wars of conquest; securing diplomatic relations. In our time, in connection with the formation of the world market, interstate mutually beneficial trade has intensified, collective security is developing, and international peacekeeping armed forces are being created. All this led to the appearance of the corresponding external functions. 3. Forms and methods of implementation of the functions of the state The state must perform its functions in its own forms, apply various methods in its activities. There are legal and non-legal forms of implementation of the functions of the state. The legal forms reflect the relationship between the state and law, the obligation of the state to act in the performance of its functions on the basis of law and within the framework of the law. In addition, they show how state bodies and officials work, what legal actions they perform. Usually, there are three legal forms of implementation of the functions of the state - law-making, law enforcement and law enforcement. Law-making activity is the preparation and publication of normative legal acts, without which the implementation of other functions of the state is practically impossible. For example, how to carry out a social function without codified social legislation, social law? The fact whether laws and other normative acts will be implemented or whether they will remain only the good wishes of the legislator depends on the law enforcement activity. The main burden for the implementation of legal norms lies with the governing bodies (executive and administrative bodies), headed by the government of the country. This is a daily work to resolve various issues of a managerial nature, for the implementation of which the executive and administrative bodies issue relevant acts, control the performance of duties by executors, etc. Law enforcement activity, i.e., imperious operational and law enforcement activities for the protection of law and order, the rights and freedoms of citizens, etc., includes the adoption of measures to prevent offenses, the resolution of legal cases, bringing to legal responsibility, etc. In our time, the role of the contractual form in the implementation of the functions of the state is increasing. This is due to the development of a market economy and the decentralization of public administration. Now the state-power decisions of state bodies are increasingly combined with the contractual form, civil society structures and citizens. Non-legal forms cover a large amount of organizational and preparatory work in the process of exercising the functions of the state. Such activity is both necessary and lawful, but it is not associated with legally significant actions that entail legal consequences. This, for example, is preparatory work for the collection, execution and study of various information when resolving a legal case, familiarization with letters and statements of citizens, etc. Methods for the implementation of the functions of the state are quite diverse. So, while performing a protective function, the state uses the methods of persuasion and coercion, for the implementation of the economic function, a whole set of economic methods is needed - forecasting, planning, concessional lending and investment, government subsidies, consumer protection, etc. Chapter 12 1. The concept and meaning of the mechanism of the state The mechanism of the state is that real organizational material force, at the disposal of which the state exercises power. The mechanism is a structural and subject personification of the state, it is a material "substance" of which it consists. We can say that the mechanism is an active, constantly functioning expression of the state. The mechanism of the state is an integral hierarchical system of state bodies and institutions that practically exercise state power, tasks and functions of the state. The above definition allows us to highlight the following characteristic features of the mechanism of the state. 1. This is an integral hierarchical system of state bodies and institutions. Its integrity is ensured by uniform principles of organization and activities of state bodies and institutions, uniform tasks and goals of their activities. 2. The primary structural parts (elements) of the mechanism are state bodies and institutions in which civil servants (officials, sometimes they are called managers) work. State bodies are interconnected by the principles of subordination and coordination. 3. To ensure state power orders, it has direct instruments (institutions) of coercion corresponding to the technical level of each era - armed detachments of people, prisons, etc. No state can do without them. 4. With the help of the mechanism, power is practically exercised and the functions of the state are performed. Between the functions of the state and its mechanism, the connection is direct and indissoluble. Due to the fact that the mechanism is being created to perform the functions of the state, the latter have a decisive role in this regard. State bodies and institutions are forced to adapt to its changing functions. If, for example, functions arising from class or national contradictions take over in society, then such elements of the mechanism of the state as organs and institutions of violence and coercion inevitably come to the fore. In educational literature, the concepts of "mechanism" and "apparatus" of the state are usually recognized as coinciding in scope and content. It is believed that the term "mechanism" only emphasizes the integrity of the apparatus, its focus on productive activities. 2. The structure of the mechanism of the state The unified and integral mechanism of the state is differentiated (divided) into its constituent parts - organs, subsystems. There is a hierarchy between them: various organs and subsystems occupy an unequal place in the state mechanism, are in complex relationships of subordination and coordination. The structure of the mechanism of the state is changeable and diverse, but under all conditions it includes governing bodies and enforcement bodies. This, of course, should not be understood in such a way that one part of the state mechanism is engaged only in administration, and the other - only coercion. In real life, control and coercion are intertwined. For many centuries and millennia, the state mechanism was undeveloped, its bodies were not differentiated in composition and competence. In the slaveholding, feudal, and even in the early stages of the development of the capitalist state, the basis of the mechanism was the military department, departments of internal affairs, finance and foreign affairs. The mechanism of the modern state is distinguished by a high degree of complexity, a variety of organs and institutions, and is divided into large subsystems. So, one of its subsystems (part) is formed by the highest bodies of the state: representative, head of state, government. They are usually in the field of view of the public, the media, and public opinion is formed around them. Another subsystem is law enforcement agencies, the court, the prosecutor's office, as well as law enforcement agencies (army, police, intelligence). The latter carry out the decisions of the highest bodies of the state, including the methods of state coercion (military suppression, police measures). The most severe methods of coercion are carried out by armed detachments of people - the army, the police. State bodies are adjoined by state institutions that do not have power, but perform general social functions in the field of economy, education, health, science, etc. 3. The concept and features of a state body The primary and most important structural element of the mechanism of the state is the body of the state. A state body is a link (element) of the mechanism of the state, participating in the implementation of the functions of the state and endowed with authority for this. Disclosure of the concept, features of this body allows you to better understand the mechanism of the state as a whole. 1. Although the body of the state has a certain independence, autonomy, it serves as part of a single mechanism of the state, takes its place in the state machine and is firmly connected with its other parts. 2. The body of the state consists of civil servants who are in a special legal relationship between themselves and the body. They are abstracted from family, civil and other relations that have no connection with the public service, they are official. The position, rights and obligations of civil servants are determined by law and ensure their legal status. The volume and procedure for the use of power by them is also established by law and specified in job descriptions, staffing tables, etc. Public servants also include officials who have power, issue legal acts, and independently implement them. Servants of the state do not directly produce material goods, so their maintenance is entrusted to society. They receive a salary in a state body according to their position. 3. State bodies have an internal structure (structure). They consist of divisions held together by the unity of purpose for which they are formed, and by the discipline which all employees are bound to observe. 4. The most important feature of a state body is the presence of its competence - power powers (a set of rights and obligations) of a certain content and volume. Competence is determined by the subject matter, i.e. specific tasks and functions that the state body decides and performs. Competence is usually legally fixed (in the constitution or current legislation). The implementation by the state body of its competence is not only its right, but also its obligation. 5. According to its competence, the state body has the powers, which are expressed: a) the ability to issue binding legal acts. These acts can be normative or individually defined (acts of applying the rules of law); b) in ensuring the implementation of legal acts of state bodies by applying various methods, including methods of coercion. 6. In order to exercise its competence, a state body is endowed with the necessary material base, has financial resources, its own bank account, and a source of financing (from the budget). 7. Finally, the body of the state actively participates in the implementation of the functions of the state, using appropriate forms and methods for this. 4. Types of state bodies State bodies are classified on various grounds. According to the method of occurrence, they are divided into primary and derivative. The primary bodies of the state are not created by any other bodies. They either arise in the order of inheritance (hereditary monarchy), or are elected according to the established procedure and receive power from the electors (representative bodies). Derivative bodies are created by primary bodies, which endow them with power. These include executive and administrative bodies, prosecution authorities, etc. According to the volume of power, state bodies are classified into higher and local. True, not all local bodies are state (for example, local governments). The highest bodies of the state most fully embody state power, extending to the territory of the entire state. Local bodies of the state function in administrative-territorial units (counties, districts, communes, counties, provinces, etc.), their powers extend only to these regions. According to the breadth of competence, state bodies of general and special competence are distinguished. Bodies of general competence are competent to resolve a wide range of issues. For example, the government, executing laws, actively participates in the implementation of all the functions of the state. Bodies of special (sectoral) competence specialize in performing one function, one type of activity (Ministry of Finance, Ministry of Justice). State bodies are elected and appointed, collegiate and individual. The mechanism of the state, the classification of its supreme bodies is directly influenced by the principle of separation of powers, in accordance with which legislative, executive and judicial bodies are created. Legislative bodies. The right to issue laws usually belongs to the highest representative bodies. They are designated by the general generic term "parliament". In England, Canada, India and other countries, the term "parliament" is the proper name of the legislature, in other countries it is called differently. The heyday of parliamentarism falls on the period of formation and development of the bourgeois state. It was then that the circle of his main powers was formed: the adoption of laws, the approval of the budget, control over the government in the form of requests and discussion of its activities, the expression (vote) of confidence or no confidence, etc. All this received its generalized expression in the principle of parliamentarism. With the complication of public life, in the course of social and scientific and technological progress, an increase in the role of the government and a decrease in the role of parliament are usually observed. Parliaments in most countries of the world consist of a lower house and an upper house. Unicameral parliaments exist in small countries (Denmark, Finland). The upper house often serves as a kind of counterbalance to the usually more democratic lower house. Head of state. Divided into three branches, state power does not cease to be unified and sovereign: it has a single power-forming source - the people, it expresses the common fundamental interests of the country's population. Therefore, the independence of the legislative, executive and judicial authorities is not absolute, but relative. The head of state is precisely called upon to ensure the coordinated functioning of these bodies in the interests of the unified power will of the people and the achievement of national goals. In modern states, the head of state, as a general rule, is the sole head of state: in constitutional monarchies - the monarch, in the republics - the president. The monarch, by virtue of constitutional decrees or established traditions, has a number of rights in relation to parliament: convening sessions, dissolving (usually the lower house), appointing members of the upper houses (where it is accepted), approving and promulgating laws. He appoints (or approves) the head of government and ministers, but taking into account the views of the factions of the party majority or coalitions of parliamentary factions. Formally, he is considered the supreme commander in chief and represents the country in international relations. But in fact, these powers are exercised by the government (or the relevant minister). In most modern states, the head of state is the president, elected either by the people, or by parliament, or by a special electoral procedure. The president receives foreign diplomatic representatives, appoints ambassadors to other states, ratifies (approves) international treaties and agreements in a number of countries, and is the supreme commander of the armed forces. In some countries, the president has the right to dissolve parliament, refuse to approve a law, or submit it to parliament for second consideration. In parliamentary and presidential republics, the role and powers of the president are far from the same. In parliamentary republics, the president is an inactive figure in internal affairs, overshadowed by the head of government, in whose hands real power is concentrated. For example, the dissolution of parliament in such states, although formalized by presidential decree, is carried out by decision of the government; the appointment of a government requires the consent of parliament. Acts of the President are not valid without the signature of the head of government or the minister in charge of the subject matter of the act. In presidential republics, the president is the central political figure. Thus, the President of the United States is endowed with broad powers by the Constitution, is both the head of state and government. He heads a huge state apparatus of 2,5 million civil servants, of whom he appoints about 1500 federal officials. Only the highest federal posts are appointed by the President "on the advice and with the consent" of the Senate. He issues decrees on various issues of public life. executive bodies. Executive power belongs to the government, which directly governs the country. The government usually consists of the head of government (prime minister, chairman of the council or cabinet of ministers, first minister, chancellor, etc.), his deputies and members of the government, who head individual central government departments (ministries, departments) and are called ministers, secretaries, secretaries of state. A unitary state has one government. In a federal state, there is a federal government and governments of the members of the federation. On all issues of its competence, the government issues legal acts (decrees, decrees, resolutions, orders), which are binding. There are one-party and coalition governments. In the first case, they include representatives of one party, in the second - two or more. The government carries out its multilateral activities through numerous bodies of state administration - ministries, departments, commissions, etc. Ministries and other departments are overgrown with a complex, cumbersome and branched bureaucratic apparatus that forms the basis of the state mechanism. The judicial authorities form a rather complex system consisting of civil, criminal, administrative, military, transport and other courts. At the top of this system are the supreme and constitutional courts. The judiciary implements justice through legal proceedings regulated by procedural law. In countries where there is judicial precedent, they participate in lawmaking. The courts are independent. Legislation enshrined such democratic principles as the equality of all before the law and the court, participation in the consideration of the case by jurors, the right of the accused to defense, etc. The mechanism of the state includes law enforcement agencies that form the basis of the power of the state - the armed forces, security agencies, police (militia). The main purpose of the latter is the protection of public order and internal security. The police specialize in accordance with the various aspects of its activities. The political police ensures internal security, fights against the political opponents of their state. The criminal police maintains public order. It is divided into transport, border, customs, sanitary, forestry, etc. Local authorities stand out in particular in the mechanism of the state. Such bodies or officials (governors, prefects, commissioners, etc.) are usually appointed by the government to govern certain regions (Finland, Luxembourg). Often, along with appointed officials at the regional level, there are local representative bodies elected by the population of the region. There are states (Great Britain, Japan) where all the functions of local self-government are performed by a local administration elected by the population. 5. Bureaucracy and bureaucracy in the mechanism of the state Bureaucracy and bureaucracy are old, just like the old state, they are inseparable from it, in many ways characterize its mechanism (apparatus). The concept of "bureaucracy" is often given different meanings. For M. Weber, bureaucracy is a rational organization of public administration, the activities of the state apparatus based on the dominance of generally binding regulated procedures, the implementation of which does not depend on who exactly and in relation to whom performs them. All are equal before the same order. Unification becomes a guarantee against the shortcomings of state officials and the possibility of abuse. K. Marx treated bureaucracy sharply negatively, assessed it as an absolute evil. In contrast to the bureaucratic method of management, bureaucracy is a disease, and an old and global one. In the literal sense of the word, bureaucracy means the power of a "bureau", that is, a desk, an office, "counter power", but in essence it means the power of an apparatus cut off from the people. The main resource of bureaucrats is precisely power and the ability to abuse it, to benefit from the position, from the service. In the hands of a bureaucrat, this resource is converted into other types of capital, material goods. The main reason for the vitality of bureaucracy lies in the diversity and conflicting interests, in the possibility of manipulating them for selfish purposes. Thus, bureaucrats can turn state interest into departmental or parochial, departmental or local - into group or personal, i.e., "state tasks turn into clerical tasks", and "clerical tasks - into state ones." One of the characteristic features of bureaucracy is the desire for secrecy, the classification of activities. Perhaps the most important law of the bureaucratic apparatus is the preservation and increase of power, its self-growth. Hence the swelling of the state apparatus is a sure sign of its bureaucratic decay. Democracy is the antipode and the most effective way to combat bureaucracy. Constant democratic control over all links of the state mechanism, accountability and turnover of employees of state bodies, publicity and criticism are a reliable cure for this disease. Chapter 13 1. Typology of States In the centuries-old history of mankind, there have been, replacing each other, a large number of states, and even now there are many of them. In this regard, the problem of their scientific classification is of great importance. Such a classification, reflecting the logic of the historical development of states, allowing them to be grouped based on certain criteria, is called a typology (see diagrams on p. 177). From the point of view of Marxism, the historical type of the state is understood as the most essential (typical) of its features and characteristics, taken in unity, related to the same socio-economic formation, to the same economic basis. The criterion for dividing all ever-existing and existing states into historical types is the socio-economic formation, that is, the historical type of society based on one mode of production or another, and hence the basis of the historical type of society. According to Marxist typology, four types of socio-economic formation (slave-owning, feudal, bourgeois, socialist), four types of economic basis correspond to four types of state - slave-owning, feudal, bourgeois, socialist - each with its own set of features. The replacement of one historical type by another is an objective, natural-historical process, realized as a result of revolutions. In this process, each subsequent type of state must be historically more progressive than the previous one. The Marxist typology of the state, based on the formational approach, is far from flawless; it suffers from schematism and unilinearity. In accordance with it, all states passed a rigidly defined path from one historical type to another. In fact, the evolution of states was much more multivariate. For example, the slave-owning type was by no means obligatory for all states; in the development of some of them there were backward movements, long transitional states (for example, "professional"). The Marxist typology of states can be criticized or abandoned, but first something better has to be offered instead. Perhaps the improvement and development of the formational approach will be fruitful? To the already known formations, the proponents of this approach propose to add "Eastern state", "Asiatic mode of production" and "professionalism". It is time to take a fresh approach to characterizing the "post-capitalist" state. What is it: a new type of state or a transitional state? It is also impossible to ignore the states that follow the socialist path of development. The world's largest state, the People's Republic of China, continues to build socialism with Chinese characteristics. In the world literature, many bases for the classification of states have been proposed. Perhaps more often than others, there was a proposal to divide them into democratic and non-democratic. Such a classification for certain cognitive purposes is not only permissible, but also useful, but it is of the most general nature, and the criterion is rather vague. Recently, the classification of states into totalitarian, authoritarian, liberal and democratic has been widely used. In a totalitarian state, its role is exaggerated, a person becomes a cog in the state machine. Power is either in the hands of the ruling elite, or the dictator and his entourage. All others are removed from power and control. The legal regulation is dominated by the regime "Everything is prohibited, except for what is permitted by law." An authoritarian state differs from a totalitarian state mainly by the penetration into it, albeit to a limited extent, of elements of democracy and legality. The liberal state is formed under the influence of liberal ideas and doctrines, which belittle the role and importance of the state in the life of society. Here conditions are created for the legal autonomy of the individual, which does not allow unreasonable interference of the state in the personal sphere, the rights and freedoms of citizens are legally fixed, but not always guaranteed, the legal regime "Everything that is not prohibited by law" is allowed. However, politically, actions aimed at changing the state and social system are not allowed. In a democratic state, conditions are created for the real participation of citizens in solving state and public affairs, all the most important bodies of the state are elected and controlled by the people. Citizens have a wide range of rights and freedoms guaranteed by law. Here the state serves society and the individual. The classification under consideration has undoubted scientific and practical significance. Its main criterion is the political, more precisely, state-legal regime. This criterion, in terms of depth and thoroughness, cannot be compared with the formational one, but it allows us to highlight important features of states within the framework of generally accepted types. The above typology of states is generally applicable to law as well. The English historian A. Toynbee proposed a civilizational approach to the classification of societies and states, which takes into account not only socio-economic conditions, but also the religious, psychological, cultural foundations of life and society. The whole world history, in his opinion, has 26 civilizations - Egyptian, Chinese, Western, Orthodox, Arabic, Mexican, Iranian, Syrian, etc. The civilizational approach is substantiated by the idea of unity, integrity of the modern world, the priority of universal human values, and civilization is understood as a set of material and spiritual achievements of society based on reason and justice, which is outside the framework of specific social systems. The integrity of civilization is determined by the interaction of technology, social organization, religion and philosophy, the former determining all other components. It is easy to see that such an approach ignores the important provisions of historical materialism about the leading role of the base in relation to the superstructure, about the allocation of modes of production and socio-economic formations as stages of social development. In other words, the civilizational approach is also not flawless, it is not capable of replacing the formational approach, but in a certain combination they, apparently, can become a suitable basis for the scientific classification of states. The classification of states into types is not all-encompassing. In the past, there were and still are quite a few so-called transitional states. Some of them arose as a result of the collapse of the colonial system and moved in their development to one of the existing types (most often to the bourgeois one), others combined the features of several types of states (for example, the Scandinavian states combine the features of a traditionally bourgeois state with the sprouts of a state of a socialist type) , others may have such signs and features that none of the known types of states have. Transitional states have received little attention in Marxist literature. It was believed that the transition from one historical type of state to another is possible only through a revolutionary path, so the transitional state was seen as something temporary and uncharacteristic. In reality, the most natural and promising evolutionary path of development of states, hence the presence of transitional states is quite natural, and they can exist for quite a long time. 2. Eastern state Until recently, the eastern states in educational and scientific literature were usually referred to the slave type. True, even then a lot of specific things were noted among these states, proposals were made to single them out as a special type (type). Indeed, there are sufficient grounds for such a distinction. The ancient Eastern states (Egypt, Babylon, India, China, etc.) arose about 5 thousand years ago in the zones of irrigated agriculture. The geographical position, special climatic and soil conditions in these countries necessitated the organization of large and complex irrigation systems. This nature of agricultural production ("Asian mode of production") required, firstly, the preservation of the tribal community, because individual families could not carry out complex and extensive irrigation work, and, secondly, the presence of a strong public authority. Since the state controlled the collective labor of community members in the construction of irrigation systems, it appropriated to itself the right of supreme ownership of the land. As a result, community members became dependent on the state. In other words, the economic basis of the states of the eastern type was state ownership of land and irrigation facilities. There was also the private property of the monarch, his entourage, but it did not play a significant role in production. This nature of ownership largely determined the specific, “pyramidal” structure of society: at the top of the pyramid is the monarch (king, pharaoh, etc.), below are his confidants, even lower are lower-ranking officials. At the base of the pyramid are community members and slaves, who constitute the main object of state exploitation. In a number of Eastern states (China and others), slavery had a family (patriarchal) character, in which slaves differed little from ordinary community members. In Egypt, Babylon, there were state and temple slaves who made a great contribution to the economy of these countries. In India, a caste organization of society has developed, fixed by religion. In general, in the ancient Eastern states there was no traditional class differentiation of society. Age-old traditions played a huge role in their lives. They were characterized by slow, stagnant development. In many early Eastern states, nothing has changed for centuries. Eastern states performed several functions: 1) organization of public works (for the creation and operation of irrigation facilities); 2) financial - collection of taxes; 3) military - the defense of one's territory or the seizure of foreign territories; 4) suppression of the resistance of community members and slaves. To perform their functions, the states created a powerful bureaucratic strictly centralized apparatus. The leading role in it belonged to the army, the police and the court. True, in the early Eastern states for a long time there was no strict delimitation of competencies between individual departments and officials. The organization of state power in the countries of the ancient East most often took the form of "oriental despotism", in which all the fullness of unlimited power belonged to one ruler - a hereditary monarch, ruling with the help of a strong military-bureaucratic apparatus. 3. Slave State Slave-owning states arose later than the early Eastern states as a result of the emergence of private property, property stratification, and the split of society into classes. The most classic slave-owning states were created in Greece (VIII-VI centuries BC) and in Rome (VI century BC). The economic basis of the slave-owning state was the property of the slave-owners not only in the instruments and means of production, but also in the workers - slaves. The main creators of wealth - slaves did not have the status of subjects of law, but were, like any thing, the object of law and exploitation. Their forced labor was provided mainly by non-economic coercion. The main classes of slave-owning society are slave-owners and slaves. In addition to them, there were social strata - artisans, small farmers. They were considered free, but propertyless, and were exploited by slave owners. Sharp social contradictions arose between slaves and slave owners. The slaves fought either in the form of hidden, passive resistance, or in the form of open uprisings (the uprising of slaves in Sicily in the 1nd century BC, the uprising of Spartacus in the XNUMXst century BC, etc.). The slave-owning state was a class state, being in its essence an instrument of the dictatorship of the slave-owners. The class essence of the state was expressed in its functions. Internal functions included: 1) protection of the private property of slave owners and creation of conditions for the exploitation of slaves and indigent free people; 2) the suppression of the resistance of slaves and the poor free by the methods of cruel violence, often simply for intimidation and prevention; 3) ideological influence in order to maintain discipline and order. The slave-owning state carried out general social functions to the extent that they corresponded to the interests of the ruling class. In the external sphere, the slave-owning state performed the functions of defending its territory and peaceful relations with other states, the function of capturing foreign territories and the function of managing the conquered territories. All these functions were the prerogative of a relatively simple state apparatus, in which the army played the most important role. She participated in the implementation of both external and internal functions. The police, courts, administrative and bureaucratic bodies also acted as parts of the apparatus. The unitary monarchies and republics were the form of organization of the slave-owning state power. Monarchy, for example, existed in ancient Rome. It replaced the republican form of government and for a long time bore its features. But in the III century. Rome becomes an unlimited monarchy. The slave-owning republican form of government was of two kinds. The first is a democratic republic (Athens), where the entire free population participated in the elections of the highest bodies of the state. The second type is the aristocratic republic (Sparta and others). Here, representatives of the large military-land aristocracy took part in the elections of the highest bodies of state power. During the imperial period, the slaveholding right of Rome reached its highest development. At this time, the trade relations of Rome were expanding, commodity production was developing and improving. To regulate the relevant relations, Roman lawyers developed many legal institutions: property, property, obligation, family, inheritance law, etc. Roman law became a classic type of law based on private property. It survived the slave era and is now influencing the development of private law. Having gone through a period of formation and development, the slave-owning state entered a period of decline and became obsolete. It was replaced by the feudal state. 4. Feudal State On the basis of feudal production relations, many states arose that were not known to the previous era. These are the states in England and France, Germany and Russia, the Czech Republic and Poland, the Scandinavian countries, Japan, etc. Even today, feudal remnants have been preserved in a number of countries. The economic basis of the feudal state was the ownership of land by feudal lords and incomplete ownership of serfs. Feudal ownership of land served as the basis of social inequality. The main classes of society were feudal lords and serfs. At the same time, other social groups also existed: urban artisans, merchants, etc. The class differentiation of feudal society in a certain way was combined with the division into estates, that is, into such groups of people who differed from each other in the amount of rights and obligations enshrined in law. In Russia, for example, there were such privileged estates as princes, nobles and clergy. The estates of artisans, merchants, and philistines did not have the privileges that the upper classes had. The most disenfranchised were the serfs, who were forcibly attached to the land. Law openly consolidated class inequality and privileges. Throughout the history of feudal society, peasant uprisings and wars took place. The feudal state was an instrument of the dictatorship of the feudal lords and privileged classes. In its development, it went through a number of stages: a) decentralized feudal fragmentation; b) strengthening centralization and establishing a class-representative monarchy; c) centralized absolute monarchy and the disintegration of feudal statehood. Most of the functions of the feudal state were determined by class contradictions. This is the protection of feudal property, the suppression of the resistance of the peasants and other exploited groups of the population. The state also performed functions arising from the needs of the whole society. His external activities were mainly limited to waging wars of conquest and protection from external attacks. The state apparatus of the feudal state included the army, police and gendarmerie detachments, intelligence agencies, tax collection agencies, and courts. The dominant form of the feudal state was a monarchy of various kinds. The republican form of government existed only in the states-republics (Venice, Genoa, Novgorod, Pskov, etc.). At the last stage, bourgeois (capitalist) production relations began to emerge in the depths of feudal society, requiring a worker who freely sells his labor. But the development of new relations was hindered by the feudal lords and their state. Therefore, sharp contradictions arose between the young bourgeoisie and the feudal lords, which were resolved through bourgeois-democratic revolutions. As a result of the latter, a new type of state arose. 5. Bourgeois (capitalist) state This type of state turned out to be the most resilient, capable of adapting to changing conditions. The first capitalist states arose more than three centuries ago. The bourgeoisie came to power under the slogan "Freedom, Equality, Fraternity". The establishment of bourgeois statehood in comparison with feudal statehood is a huge step forward along the path of social progress. The economic basis of the bourgeois state in the early stages of its development was capitalist private ownership of the means of production. In this state, all citizens are equal before the law, but economic inequality persists. Bourgeois society for a long time consisted of two main classes - the bourgeoisie and workers, relations between which underwent significant changes. The bourgeois state goes through a number of stages in its development. The first stage can be called the period of formation and development of the capitalist state. In economic terms, this is a period of free competition for a large number of owners. The state does not interfere in the economy here. Economic life is determined by the spontaneous market and competition. To reveal the general class interests and will of the developing bourgeoisie, a new, more modern mechanism was needed. Bourgeois democracy, parliamentarism, legality became such a mechanism. The state provided favorable conditions for the development of capitalist social relations. The class struggle has not yet reached a particular acuteness. The second stage in the development of the bourgeois state coincided with the period of monopoly capitalism. It can be called the stage of the beginning and deepening of the crisis of bourgeois statehood (the end of the XNUMXth century - the first half of the XNUMXth century). The economy is undergoing major changes at this stage. To increase competition, small enterprises and firms unite, various types of production and distribution are monopolized, powerful associations arise - trusts, syndicates, corporations, etc.; the exploitation of the working class is intensified, the effective demand of the population lags behind the production of goods. This resulted in periodic crises and depressions, accompanied by the bankruptcy of enterprises, rising unemployment, and exacerbation of the class struggle. The monopolization and concentration of capital led to the unification of the working class, which became the bearer of revolutionary Marxist ideas. The Paris Commune of 1871 is historically the first attempt by the working class to win state power in a revolutionary way and use it in their own interests. At the turn of the XNUMXth and XNUMXth centuries, the bourgeois state is increasingly turning into a political institution of the big monopoly bourgeoisie, which is beginning to renounce democracy and the rule of law. In a number of countries this leads to the emergence of reactionary political regimes (fascist regimes in Germany and Italy). In the internal activities of the bourgeois states, the function of fighting the revolutionary labor movement is intensified, in the external - the function of waging wars for the seizure of foreign territories and markets. All this is accompanied by the growth of the military-bureaucratic state apparatus. First decades of the XNUMXth century - these are the years of the First World War, proletarian revolutions, the collapse of the colonial system, severe economic crises and depressions. Bourgeois society and the state inevitably faced a tough alternative - either self-destruction under the onslaught of sharp contradictions, or reform and transformation. They chose the second path. In the 30s. of our century, the bourgeois state has entered the third (modern) stage of its development, which, in all likelihood, is a transitional to a higher type of state. It was initiated by the "New Deal" of US President F. Roosevelt, but larger-scale changes, coinciding with the unfolding scientific and technological revolution, took place after the Second World War. At this stage, the economic basis of the state changes significantly, "pure" private property ceases to be dominant. Up to 30% or more of the economic potential of developed countries is turning into state property, the property of shareholders is developing rapidly, and cooperative property is emerging. In a word, the economy becomes mixed. The diversity of types and forms of ownership gives the economy greater dynamism, the ability to adapt to changing conditions. No less changes are taking place in the social class structure of society. Many workers become shareholders and, together with other sections of society (scientific and technical intelligentsia, etc.), form the "middle" class, the main stabilizer of social relations. The state retains its bourgeois-class features, but becomes more democratic and social. Many of its main functions stem from the needs of the whole society - economic, social. It actively intervenes in the economy through flexible planning, placement of government orders, lending, etc. The changes taking place in the developed capitalist countries are reflected in various theories. Considerable distribution, for example, was received by the theory of the welfare state. According to this theory, at the stage under consideration, capitalism changed radically, it became people's capitalism, and the bourgeois state completely lost its class character, turned into an organ of general welfare, making the rich poorer and the poor richer with the help of state legal regulation. This theory, of course, is based on real processes, facts, but still essentially idealizes bourgeois society and the state. 6. Socialist state Ideas about a truly democratic, humane and just society and state are contained in many world religions, in particular the Christian one. They were put forward and developed by utopian socialists, contained in epics and legends. The foundations of the doctrine of the socialist state were laid in their works by K. Marx, F. Engels, and V. I. Lenin. Moreover, K. Marx and F. Engels drew their ideas about the future proletarian state from the experience of the Paris Commune. IN AND. Lenin developed these ideas based on the experience of the October Revolution and the first years of Soviet power. It was believed that a new anti-exploiting state was emerging as a result of the proletarian revolution and the destruction of the old bourgeois statehood. State power in it belongs to the working people, headed by the working class. At its core, this is a state of the dictatorship of the proletariat, designed to crush the resistance of the overthrown exploiting classes, to turn all able-bodied citizens into working people. Marxism argued that the proletarian state, from the moment of its emergence, is no longer a state proper, but becomes a dying "semi-state", which will then be replaced by communist public self-government. The states of the former socialist countries were recognized as states of the highest and historically last type. They were opposed to all exploiting states. In fact, these were, most likely, states burdened with large deformations in transition to the socialist type. Today, Chinese theorists are more realistic, they argue that it takes not decades, but centuries to build socialism in China (Marxism-Leninism set aside a short time for building socialism and a socialist state). In addition, dogmatism in theory, voluntarism, subjectivism, constant running ahead have become the causes of numerous errors and deformations in practice. Nevertheless, the great experience in building socialist statehood should be deeply analyzed and studied: miscalculations, mistakes and achievements will undoubtedly be useful to both living and future generations, because the ideas of socialism are both noble and immortal. Chapter 14 1. The concept and meaning of the form of the state Any state is the unity of its essence, content and form. In order for it to function actively, for its mechanism to function efficiently and smoothly, a well-organized state power is required. According to the famous Russian lawyer and philosopher I.A. Ilyin, the form of the state is not an "abstract concept" and not a "political scheme" indifferent to the life of the people, but a system of life, a living organization of the power of the people. “It is necessary that the people understand their own system of life, that they know how to organize themselves precisely “in this way”, that they respect the laws of this system and put their will into this organization.” The form of the state answers the questions on what principles and how territorially the state power is built, how the highest bodies of the state are created, how they interact with each other and the population, by what methods it is carried out, etc. The form of the state is understood as the organization of state power, expressed in the form of government, state structure and political (state) regime. Therefore, the concept of the form of the state covers: a) the organization of the supreme state power, the sources of its formation and the principles of the relationship of the highest authorities among themselves and the population; b) the territorial organization of state power, the correlation of the state as a matter with its constituent parts; c) methods and means of exercising state power. The form of the state depends on the specific historical conditions of its emergence and development. The essence, the historical type of the state, has a decisive influence on it. So, the feudal type of the state corresponded, as a rule, to the monarchical form of government, and to the bourgeois - the republican. The form of the state largely depends on the balance of political forces in the country, especially during its emergence. Early bourgeois revolutions (for example, in England) led to a compromise between the bourgeoisie and the feudal lords, which resulted in a constitutional monarchy. The constitution is the demand of the young bourgeoisie, the monarchy is a concession to the feudal lords. The form of the state is influenced by the national composition, historical traditions, the territorial size of the country and other factors. States that are small in territory are usually unitary. “The multinational composition of the population,” wrote I.A. Ilyin, “makes its own demands on the state form. It can become a factor in disintegration and lead to disastrous civil wars.” Events in Yugoslavia, the difficult situation in the former republics of the USSR, interethnic strife confirm the words of I.A. Ilyin, who believed that each nation should have its own, special, individual form and constitution, corresponding to it and only to it. There are no identical peoples and there should not be identical forms and constitutions. Blind borrowing and imitation is absurd, dangerous and can become disastrous ". 2. Form of government This category shows how higher organs are formed, what they are, on what basis they interact. The form of government also indicates whether the population participates in the formation of the highest organs of the state, that is, whether they are formed in a democratic or non-democratic way. For example, the highest organs of the state are formed in a non-democratic way under a hereditary monarchy. Thus, the form of government reveals the method of organizing the supreme state power, the procedure for the formation of its bodies, their interaction with each other and with the population, the degree of participation of the population in their formation. There are two main forms of government - monarchy and republic. Their supreme bodies differ from each other both in the order of formation, and in composition, and in competence. Monarchy is a form of government where the highest state power belongs to the sole head of state - the monarch (king, tsar, emperor, shah, etc.), who occupies the throne by inheritance and is not responsible to the population. There are two types of monarchies. Under an unlimited (absolute) monarchy, the monarch is the only supreme body of the state. It performs a legislative function (the will of the monarch is a source of law and law; according to the Military Regulations of Peter I, the sovereign is "an autocratic monarch who should not give an answer to anyone in the world about his affairs"), manages the executive authorities, controls justice. Absolute monarchy is characteristic of the last stage in the development of the feudal state, when, after the final overcoming of feudal fragmentation, the process of formation of centralized states is completed. Currently, some monarchies of the Middle East (Saudi Arabia) are absolute. Under a limited monarchy, the highest state power is dispersed between the monarch and another body or bodies (Zemsky Sobor in the Russian Empire). The limited ones include a class-representative monarchy (Russia) and a modern constitutional monarchy (Great Britain, Sweden), in which the power of the monarch is limited by the constitution, parliament, government and an independent court. A republic is a form of government in which the highest state power belongs to elected bodies elected for a fixed term and responsible to the voters. The democratic way of formation of the supreme bodies of the state is inherent in the republic; in developed countries, the relationship between the highest bodies is based on the principle of separation of powers, they have a connection with the voters and are responsible to them. The republican form of government originated in the slave states. It found its most striking manifestation in the democratic Athenian Republic. Here, all the organs of the state, including the highest (the most important of them was the people's assembly), were elected by full-fledged citizens of Athens. However, the most common in the slave-owning states was the aristocratic republic, where the military land nobility took part in the formation and work of the elected bodies of the supreme state power. During the era of feudalism, the republican form of government was used infrequently. It arose in those medieval cities that had the right to self-determination (Venice, Genoa, Lübeck, Novgorod, etc.). Merchant city-republics electively created authorities (city councils, city halls) headed by responsible officials (burgomasters, mayors, etc.). Modern republics are divided into parliamentary and presidential. They differ mainly in which of the organs of supreme power - the parliament or the president - forms the government and directs its work, and to whom - the parliament or the president - the government is responsible. In a parliamentary republic, the parliament is endowed not only with legislative powers, but also with the right to demand the resignation of the government, expressing no confidence in it, that is, the government is responsible to parliament for its activities. The president of the republic is only the head of state, not the head of government. Politically, this means that the government is formed by the party (or parties) that won the parliamentary elections, and the president, not being the leader of the party, is deprived of the opportunity to direct his activities. The government is led by the Prime Minister (he may be called differently). A presidential republic is a form of government where the president, directly under certain parliamentary control, forms a government that is responsible to him for its activities. In presidential republics, there is usually no position of prime minister, since most often the functions of head of state and head of government are performed by the president. There are mixed "semi-presidential" (presidential-parliamentary) republics (France, Finland, Portugal), in which the parliament and the president to some extent share their control and their responsibility towards the government. It is worth noting that the monarchy and the republic as forms of government have proved exceptional vitality, adaptability to various conditions and epochs of political history. As a matter of fact, all states are clothed precisely in these forms. 3. Form of government The history of the existence of the state testifies that in all centuries different states differed from each other in their internal structure (structure), i.e., the method of territorial division (administrative-territorial units, autonomous political entities, state entities with sovereignty), as well as the degree centralization of state power (centralized, decentralized, organized according to the principle of democratic centralism). This phenomenon is denoted by the term "form of government", which refers to the territorial organization of state power, the relationship of the state as a whole with its constituent parts. With all the variety of forms of government, the two main ones among them are unitary and federal. The third form of government is confederation, but it is much rarer than the first two. A unitary state is an integral centralized state, the administrative-territorial units of which (regions, provinces, districts, etc.) do not have the status of state entities and do not have sovereign rights. In a unitary state, there are single supreme bodies of the state, a single citizenship, a single constitution, which creates organizational and legal prerequisites for a high degree of influence of the central government throughout the country. The bodies of administrative-territorial units are either fully subordinate to the center, or in double subordination - to the center and local representative bodies. Most of all existing and currently existing states are unitary. This is understandable, because the unitary state is well managed, and the unitary form quite reliably ensures state unity. Unitary states can have both single-ethnic (France, Sweden, Norway, etc.) and multinational (Great Britain, Belgium, etc.) composition of the population. A federal state (federation) is a complex union state, parts of which (republics, states, lands, cantons, etc.) are states or state entities with sovereignty. The federation is built on the principles of decentralization. In a strictly scientific sense, a federation is a union of states based on a treaty or constitution. Therefore, federation is possible only where independent states unite. "At the same time, federal constitutions establish in what way the politically merging small states retain their "independence" and in what ways they will lose it." The state formations and states that are part of the federation are called its subjects. They can have their own constitutions, their own citizenship, their own supreme state bodies - legislative, executive, judicial. The presence in the federation of two systems of supreme bodies - the federation as a whole and its subjects - makes it necessary to distinguish between their competencies (subjects of jurisdiction). The ways of delimitation of competence used in different federations are diverse, but two are the most common. In the United States, Canada, Brazil, Mexico and other countries, the constitutions establish areas that fall under the exclusive competence of the federation and the exclusive competence of its subjects. In Germany, India and other states, the constitutions, in addition, provide for the scope of the joint competence of the federation and its subjects. It is often noted in the literature that the federation of the former Soviet Union was artificial, that in fact the USSR was a unitary state. There are some grounds for such statements: in the Union, especially during the heyday of totalitarianism, the degree of centralization of state power was very high. Nevertheless, the USSR possessed all the signs of a union (federal) state. A confederation is a union of sovereign states formed to achieve certain goals (military, economic, etc.). Here, the allied bodies only coordinate the activities of the member states of the confederation and only on those issues for the solution of which they have united. This means that the confederation does not have sovereignty. Historical experience shows that confederal associations are of an unstable, transitional nature: they either disintegrate or are transformed into federations. For example, the states of North America from 1776 to 1787 were united in a confederation, which was dictated by the interests of the struggle against British rule. The confederation became a stepping stone towards the creation of a federal state - the United States. And the confederation of Egypt and Syria (United Arab Republic) created in 1952 collapsed. We believe that this form still has a future: the former republics of the USSR, Yugoslavia, North and South Korea can unite into a confederation. In recent decades, a special form of associated state association has emerged. An example of this is the European Community, which has already fully proved its viability. It seems that the process of modern European integration can lead from the commonwealth to a confederal state system, and from it to a federal pan-European state. 4. Political regime The form of the state is closely connected with the political regime, the significance of which in the life of a country is exceptionally great. For example, a change in the political regime (even if the form of government and the form of government remain the same) usually leads to a sharp change in the domestic and foreign policy of the state. This is due to the fact that the political regime is associated not only with the form of organization of power, but also with its content. The political regime is the methods of exercising political power, the final political state in society, which develops as a result of the interaction and confrontation of various political forces, the functioning of all political institutions and is characterized by democracy or anti-democratism. The above definition allows us to highlight the following features of this phenomenon. 1. The political regime primarily depends on the methods by which political power is exercised in the state. If these are methods of persuasion, agreement, legitimacy, parliamentarism, if only legal coercion is used, then there is a progressive, democratic regime. When methods of violence come to the fore, a reactionary, anti-democratic regime takes shape in the state. There are regimes where both beginnings are combined to one degree or another. 2. In each country, the political regime is determined by the ratio, the alignment of political forces. In countries where there is a stable balance of political power or a long-term national agreement has been reached, the result of this agreement is a stable political regime. But if one or the other forces take over in the country, the political regime is constantly changing. Under a democratic regime, the highest bodies of the state have a mandate from the people, power is exercised in their interests by democratic and legal methods. Here the rights and freedoms of man and citizen are fully guaranteed and protected, the law prevails in all spheres of society. The totalitarian fascist regime is extremely undemocratic, when power passes into the hands of reactionary forces, it is carried out by dictatorial, violent methods. The rights and freedoms of man and citizen are not protected by anything and no one, arbitrariness and lawlessness reign in society. Chapter 15. The Russian state: past, present, future 1. Traditions of Russian statehood Over the long history in Russia, many traditions have developed that largely determined the development of Russian statehood, gave it uniqueness and originality. Traditions are historically established, rooted in society and passed down from century to century customs, rituals, social institutions, values, ideas, etc. They represent a socio-cultural and national heritage that has been preserved in society for a long time. Traditions are inextricably linked with the mentality (mentality) - a historically established stable mental (intellectual) and spiritual structure (image) of the people. Traditions and mentality ensure the transmission from generation to generation of fundamental social values, ideas and views tested by life. Traditions can be progressive or negative. Progressive traditions are not only linked to the past, they are reliable guides for the present and future. Therefore, various restructurings, transformations, and reforms carried out without taking them into account are of little prospect. In Russia, the most important domestic traditions are communality, catholicity, sovereignty (statehood), patriotism, social justice, the priority value of labor, and spirituality. The traditional ideal (mentality) of the peoples of Russia is a strong centralized state capable of ensuring the necessary order, the integrity of society, and protecting the country from foreign invasions. Powerfulness includes military service to the state, readiness to defend its sovereignty. The opposition of society to the state is not inherent in the Russian mentality: communality and sovereignty smoothed out contradictions, alienation between the state and the individual. Public opinion rightly considered the state to be a political institution, uniting the multinational people of Russia into a single whole, ensuring peace in the country. Moreover, the Russian state historically arose and developed as a Russian state, the national core of which was the Russian people. It was the Russian people, which always united the multinational peoples of the country, that was the bearer of the tradition of a strong, actively functioning state. It was the Russian people that traditionally played in the history of the Russian state the great role of a factor uniting all peoples, stabilizing and strengthening the state. True, according to N. Berdyaev, the two poles of Russian life have always been the immaturity of a remote province and the rottenness of the state center. The latter was especially pronounced at the beginning of the XNUMXth century. (Rasputinism, etc.). It is clear that this cast a shadow on the traditions of sovereignty and undermined the foundations of Russian statehood. Centuries-old monarchy and autocracy gave rise to another tradition - paternalism. It is expressed in planting in the public mind the idea of the infallibility of the bearer of supreme power, its deification and, at the same time, in unlimited arbitrariness, lack of rights and servility of subjects, the denial of freedom and democracy. In the Russian monarchical state of the Eastern despotic type, a respectful attitude to law and law could not develop, and there were no conditions for the establishment of democratic legality. And yet fresh winds of change reached Russia. At the turn of the 1917th-XNUMXth centuries, the idea of establishing a constitutional-democratic system in Russia was gaining momentum in the public mind. The fall of the monarchy in XNUMX was also predetermined by the fact that it resisted its introduction. Consequently, state building in Russia is not taking place in an empty place today. The descendants of Peter I and the children of the Bolsheviks are once again solving the problem of reorganizing the statehood and social structure of the country, and, apparently, this process will be quite lengthy and difficult. The immediate predecessor of modern Russian statehood is the Soviet Union. 2. The Soviet state, its historical path and collapse The history of the Soviet state is complex, contradictory and instructive. It absorbed the faith of the people in the ideals of socialism, their perversion by the authorities and the tragic consequences of totalitarianism. Its comprehensive study will, presumably, become an important subject of domestic science. The difficult path of the Soviet state can be safely called historical off-road, because there were no analogues in world history. According to Marxist theory, the proletarian revolution breaks, destroys the old statehood and establishes the dictatorship of the proletariat. It was planned to create a transitional state to communism along the lines of the Paris Commune, without a special apparatus and bureaucracy, without an army, without separation of powers. Its main goal was to suppress the resistance of the overthrown exploiting class; as it was reached, the state had to begin to wither away. The first short period in the development of the young Soviet state was the so-called war communism with primitive leveling, direct product exchange, labor army, military coercion. In fact, it was a state of military dictatorship. IN AND. Lenin was among the first to see and recognize the fallacy of the policy of war communism. “We counted—or, perhaps, it would be more accurate to say: we assumed without sufficient calculation—by the direct orders of the proletarian state, to establish state production and state distribution of products in a communist way in a small-peasant country. Life has shown our mistake.” The construction of communism by organizing production by the methods of state coercion and egalitarian state distribution is nonsense, a parody of communism, its discredit. War communism was replaced by the most interesting and rich in content period in the history of our society and state - NEP. In fact, the NEP is most likely the country's intuitive movement along social democratic guidelines. The new rules of economic activity on the basis of a diversified economy stimulated entrepreneurial spirit, industriousness, and raised the living standards of the people. In industry, economic accounting, wholesale trade were introduced, in agriculture - cooperation, mutually beneficial bond, exchange of goods with the city, in society - publicity, discussions, legal principles. In 1922, the USSR was formed on a voluntary contractual basis, in 1924 the Union Constitution was adopted, legality and democracy began to be established. During these years, effective measures were taken to create a well-functioning state apparatus controlled by the masses. If the NEP had been established for a long time and in earnest (as V.I. Lenin wrote), our country could have taken the path of building a just socialist society. However, by the end of the 20 NEP was abolished. The twilight of totalitarianism, or a new version of war communism, was approaching. The party and state apparatus was flooded with declassed elements (lumpen nominees) - people without social roots, a moral code, ready to unreasonably obey the strong, that is, who at the moment has real power. It was the lumpen nominees and the new party-state bureaucracy that became the main pillar of the Stalinist regime. The Russian centuries-old tradition of paternalism found its embodiment in petty-bourgeois leaderism, characteristic of a country of many millions of peasants. The psychology of leaderism, the bureaucratic deification of authority, served as a breeding ground for Stalin's personality cult. By the beginning of the 30s. the totalitarian regime has become a harsh political reality. Its main features were as follows. Firstly, unlimited and uncontrolled supreme power was concentrated in the hands of the dictator, who exercised it through a coercive-repressive, militarized bureaucratic apparatus. Secondly, power was often exercised by non-legal methods of violence, massive cruel terror, arbitrariness and lawlessness. The human personality turned out to be protected by nothing and no one. And although the Constitution of the USSR of 1936 secured certain rights and freedoms of citizens, however, the peak of repression, arbitrariness and lawlessness fell precisely on 1937. Consequently, the totalitarian regime did not take into account not only the current legislation, but also the Basic Law of the country. Thirdly, the official constitutional organs of the state - the system of Soviets - carried out the instructions of the dictator and the directives of the party nomenklatura. The democratic principles in their activities were largely emasculated. Territorially, state power was exercised according to the principle of strict super-centralism. Fourthly, there was a stateization of society, which was comprehensively (totally) controlled by the administrative-punitive apparatus. Political power extended to the economy, to the entire national economy. The economic levers were concentrated in the hands of the bureaucratic apparatus, which led to the dominance of monopoly state property and planning-command methods of management as the material basis of the totalitarian dictatorship. Fifthly, there was one strictly centralized party in the country, the top of which stood above the state and society. Sixthly, the massive cult ideology managed to convince many that what is happening is necessary and just, that the Stalinist regime creates conditions for the construction of socialism, but the onward movement towards it is hindered by numerous enemies and reactionaries, against whom, due to their special danger, any means of struggle are acceptable. . And people for the most part supported the criminal regime, selflessly worked, gave all their strength to the fulfillment and overfulfillment of plans, reported to the leader about labor and creative achievements, marched in festive columns, not only not realizing that they were serving as puppets in the monstrous manipulations of tens of millions of human destinies, but Sincerely believing that they are acting for the benefit of society, they are building socialism. In reality, totalitarianism, in its essence, has nothing in common with socialism, it is alien and hostile to socialism. He caused enormous harm to socialism, completely distorted, deformed it, but he could not undermine the faith of the Soviet people in the ideals of the new system. The Great Patriotic War became a severe test for fidelity to these ideals, for devotion to the Motherland. And in the difficult post-war years, our country moved forward along the path of economic, scientific and technological progress, mastered atomic energy, opened the era of space exploration, etc. In terms of the scale of public education, science, and culture, it firmly occupied leading positions in the world. What determined these undoubted successes? To a large extent, the fact that real practice relied on centuries-old Russian traditions: collectivism - on communality and conciliarity, labor enthusiasm - on Russian labor morality, strengthening the state - on sovereignty, etc. And all this was done not thanks to the Stalinist regime, but in spite of to him. In the post-war period, society began to perceive the facts of lawlessness and arbitrariness more and more wary, and hope for changes ripened in the public mind, which became especially stronger after Stalin's death. The social, moral impulses, expectations and hopes coming from the people could not go unanswered. More humane policies, economic reforms and democratic change were needed. In the second half of the 50s. such transformations, albeit half-hearted, followed. Programs for the development of agriculture, the technical re-equipment of industry, and the improvement of pensions were developed and implemented, and the wages of low-paid sections of the population were raised. Headed the transformation of N.S. Khrushchev. During this period, the arbitrariness and lawlessness of the Stalinist regime were condemned, steps were taken to strengthen the rule of law and develop democracy. A more or less favorable environment was created in the country for the development of legal science and for the active improvement of legislation. Our literature asserts that after the death of Stalin the extremes of the totalitarian regime were eliminated, but the totalitarian essence of the state remained unchanged. This statement cannot be recognized as indisputable: illegal violence, terror and lawlessness of state bodies ended, the people were freed from oppressive social and legal insecurity. In fact, another political regime with elements of democracy and legality has been established in the country - an authoritarian regime. However, the social base of Stalinism remained significant. In addition, the propaganda apparatus, which had not undergone significant changes and was accustomed to praising Stalin with no less scope and passion than Stalin, began to praise Khrushchev. On a gigantic wave of lies and flattery, subjectivism and Khrushchev’s improvisations grew: ill-conceived reorganizations of the state apparatus, calls to catch up and overtake the United States in the production of milk and meat in two or three years, to build the material and technical base of communism by 1980, etc. In the autumn of 1964, a protege of the party-state bureaucracy and nomenklatura, L.I. Brezhnev. Just at this time, there was a craving for well-established, proven centralized command and administrative methods of public administration. Fear of the new, unwillingness to change the existing state of affairs and led to the dogmatism and conservatism of these methods. In the 60s and 70s. Great changes were taking place all over the world, scientific and technological progress was rapidly developing. The Soviet Union was in a state of stagnation. The economic situation in the country gradually worsened, exorbitant military spending exhausted society, and various disproportions multiplied. At the same time, the praises of Brezhnev uncontrollably intensified, rituals multiplied, everything negative was hushed up, splendor and window dressing were invariably accompanied by postscripts and fraud. Hypocrisy and lies flourished in the country, giving rise to social passivity, indifference, and a decline in morality. At all levels, the decomposition of the party-state apparatus began. The growing crisis has engulfed all spheres of society. The Constitution adopted in 1977 did not introduce any noticeable changes in public life, in the domestic and foreign policy of the state. Life itself required thoughtful, scientifically verified and consistent transformations, primarily in the economy. In 1985 economic reforms began. Their goals and essence were defined as follows: to achieve a significant acceleration of economic development on the basis of scientific and technological achievements, to search for new forms of management and, on this basis, gradually move to market relations. However, it was soon decided to carry out deep economic reforms simultaneously with a radical reform of the entire political system, that is, we were already talking about revolutionary restructuring. Today, perestroika (until recently it was a trendy word) is assessed almost unambiguously negatively. However, less attention is paid to clarifying and analyzing the reasons why it did not take place, did not bring society out of stagnation and crisis, but deepened it. The reasons for the failure of perestroika, presumably, are many, but (not without reason) in the literature, the subjective is put forward in the first place: such large-scale transformations were led by people who were completely unprepared and incapable of this from the party-state nomenklatura. There was no scientifically substantiated plan for reforming society; priorities, goals and sequence of transformations were not defined. The organizers of perestroika had little knowledge of their society, its history and traditions, and naturally did not rely on them. True, at first, economic goals were understandable to people and supported by them - the transition from extensive to intensive methods of management, the accelerated development of the country's economy, etc. But there was no case that the next tasks were set after the previous ones were completed. Already in the early stages, perestroika shifted into the political sphere. Without serious scientific justification, new supreme bodies of state power were hastily created - the cumbersome, clumsy and poorly managed Congress of People's Deputies of the USSR ("meeting under the roof") and the permanent Supreme Soviet of the USSR. Legislative power ended up in the hands of two bodies, which gave rise to duplication, parallelism in work, and undermined their responsibility. Then the post of president of the country was established (also without any serious justification). Complicated political innovations and storms pushed the problems of the economy into the background, caused a break in its natural, mutually supportive ties with politics. The growing burden of economic and political mistakes became unbearable. Against such a background, separatism and nationalism grew, an unnatural "war of laws" and "confrontation of sovereignties" broke out, which destroyed the foundations of a multinational state. And although in March 1991, at the All-Union referendum, the people spoke out in favor of preserving the USSR, its collapse soon became a fait accompli that brought untold misfortunes and suffering to the innocent people. 3. The formation of the Russian state and the problems of its strengthening With the acquisition of independence by Russia, it has real opportunities to develop and implement a balanced course of social transformations that meets the historical needs of the country, harmonize the relationship between society and the state, and form a socially oriented market. But these opportunities were not used. The policy of improvisations continued, a plan for reforming the country, a strategy for deliberate action ahead of the curve, was not developed. On the contrary, radicalism and revolutionary (resolute) methods of carrying out reforms intensified, as a result of which the boundaries between revolution and reform were blurred. A revolution is a revolution, a rapid change in the political, socio-economic, cultural and spiritual foundations of society, produced by overcoming the resistance of social strata and classes. This is a break with the past, inevitable destruction, human suffering. True, the revolution also destroys and eliminates obsolete, obsolete relations and orders. Reform is a change, a transformation that carefully perceives everything truly valuable and useful from the past, carried out through compromises and public consent, without inciting conflicts and contradictions. In a word, reforms are connected with the evolutionary development of society. World experience shows that effective reforms can be carried out in the presence of a whole range of conditions: - evidence-based programs, clear and precise goals; - highly professional management of the transformational process, taking into account the priority and sequence of ongoing activities; - well-thought-out and verified methods of reforming; - a truthful explanation of the essence, goals and consequences of reforms for society and the individual, involving as many people as possible in the reform process. Approximately according to this scheme and logic, reforms in China are developing. Apparently, this explains their high and stable performance. Russian reforms were oriented towards Western social values. Price liberalization, privatization and other drastic measures completely unbalanced the country's economy and financial system, gave rise to a spontaneous (wild) market, impoverished the vast majority of the population and unprecedentedly violent criminalization of society. However, one should not look for the cause of these consequences in, for example, privatization itself. Without a scientific approach, without awareness by the population of the goals, methods of privatization, its successful implementation was simply impossible. Aimless privatization is meaningless. Its main goal is purely economic: to change the owner so that the objects of the former state property are better managed and function more efficiently than before privatization. In our country, privatization turned into plunder, squandering a huge fortune created by the labor of many generations of people, unprecedented enrichment of an insignificant part of society, gave rise to a whole trail of negative and difficult-to-repair consequences. The economic foundation of the state turned out to be thoroughly undermined, discontent, tension, and conflicts grew in society. So, in 1992, a sharp conflict broke out in the upper echelons of the Russian power structures, a tough confrontation between the legislative and executive branches of power began. Russian statehood found itself on the dangerous line of self-destruction. After the resolution of this conflict with the help of military force, calls were made to strengthen the Russian state, but no real steps were taken in this direction. On the contrary, the events in Chechnya further undermined the prestige of the most important state institutions - the army, the Ministry of Internal Affairs, and state security agencies. Today, the strengthening of the Russian state is the command of the time, an urgent need. All parties and political movements, public organizations and branches of government are objectively interested in strengthening the state. Only in a healthy and strong state can they count on an honest implementation of the interests of their supporters, and state bodies can direct their energy to its benefit. A strong, actively functioning state is the most important condition for overcoming the economic crisis and continuing the transformations. Without it, a socially oriented market will not be established, all forms of property cannot be reliably protected, democracy and self-government will not realize their values, Russian science, culture, justice and morality will not be revived. Only such a state is able to successfully fight crime and provide the citizens of Russia with security and peace. The strong and powerful Russian state is the most reliable and real guarantor of stability throughout the territory of the former Soviet Union, the reliable defense capability of the country, and the maintenance of peace in the world community. To strengthen Russian statehood, it is necessary, firstly, to restore the trust of the people to the state and its bodies, secondly, to find out and eliminate the reasons that led to the weakening of the state, and thirdly, to develop a scientifically based concept of its development and strengthening. When developing the latter, one must take into account that the fundamental basis of Russian statehood from time immemorial has been and remains sovereignty, nationality, spirituality, patriotism and the leading role in strengthening the state of the Russian people. Today, the high professionalism of civil servants and officials at all levels is of particular relevance. In practical terms, the strengthening of the state is its effective functioning in the interests of society and the individual. 4. Internal functions of the Russian state In the dramatic transitional period that our country is going through, the economic function of the state comes to the fore, because without the recovery of the economy, all paths to progress, a legal and social state will be blocked. The economic foundation of the national statehood should be a diversified economy, equal opportunities for the existence and development of all forms and types of property. In such a situation, those who actually prove their advantage will become promising. Now the country needs to produce only those products that are necessary for a person, the state, the world market. Therefore, the main thing here is priority state support for domestic producers. A sure reserve for economic recovery is the demonopolization of Russian production. There can be no normal economy, no genuine competition, as long as one enterprise dictates its terms to others just because it is the only one. In this case, antitrust laws are indispensable. A new economic mechanism (institutions of market economy, systems of state administration, demonopolization, taxation, economic legislation) is still being created. That is why the formation of a system of state-legal regulation of the market economy is not a rollback, but a movement forward, the development of reform, the strengthening of the Russian state. In a poorly managed market economy, there will never be a true market economy. The economic function is implemented in two interrelated areas of state activity: 1) establishing forms and methods of influencing various types of management; 2) ensuring reliable protection and protection of all existing forms of ownership. Methods for implementing the economic function depend on the forms of ownership and types of management. The state must treat the public sector of the economy as a full-fledged owner, otherwise the confusion will not be overcome, the squandering of state property will not be stopped. Here, methods of flexible planning, state order, and in the conduct of personnel policy - and administrative methods are possible. However, the main thing here, apparently, should be the method of material and moral incentives. The economic structures of civil society are self-governing. The state can influence them by economic methods and legal means. In a mixed economy, the state usually regulates economic processes by: - setting state prices for certain strategic and socially significant types of products; - allocation of quotas for raw materials, imports; - establishing (in one way or another) wages; - concessional lending and investment; - government subsidies and taxes. The most important duty of the state is to reliably protect its economic basis (all forms of ownership) from robbers and criminals. To do this, it is necessary to improve and update legislation aimed at protecting the economic basis of the state, to improve the quality of the work of law enforcement agencies. The continuation of the economic function in the sphere of distribution relations is the social function. Its main purpose is to ensure the beginning of social justice in the country, to create equal opportunities for all citizens in ensuring material well-being. This function most clearly expresses the humanistic nature of the state, its calling to resolve or mitigate social contradictions in society on the basis of justice, to provide a person with decent living conditions, to guarantee him a certain amount of material wealth. It is here that such a property of the state as its sociality is manifested: a measure of care for a person, attention to the needs and needs of people. Article 7 of the Constitution of the Russian Federation states: "The Russian state is a social state whose policy is aimed at creating conditions that ensure a decent life and free development of a person." The social cost of the costs and mistakes in carrying out reforms turned out to be so impressive that it casts doubt on the need for the reforms themselves, causing many either an indifferent attitude towards them, or active or passive resistance to them. It has long been said and proved that even the best plans, the most necessary and useful reforms, can be distorted and ruined by their poor execution. However, the reforms themselves have nothing to do with it, the reformers are to blame, their voluntarism, incompetence, irresponsibility. In recent years, tens of millions of people in the country have fallen below the poverty line. Among them are elderly people, and able-bodied workers and peasants, and intellectuals, scientists, workers of higher education. The living conditions of many young families are unbearable. A blatant and ugly inequality in its original moral principles has arisen in society. It was not talented people, not active entrepreneurs, commodity producers, who turned out to be fabulously rich, but those who plundered, squandered, sold abroad the public property created by many years of work, i.e., criminal capital became rich - the main source of increased crime, impoverishment and degradation of society. In order to change such an explosive social situation, it is advisable for the state to subordinate its activities in the near future to the following tasks: - stop the decline in the standard of living of the population; - to strengthen the motivation of labor and entrepreneurial activity of economically active citizens; - provide targeted support to the least protected social strata; - more evenly and fairly distribute the burden of the economic crisis among different groups of the population; - actively develop social legislation, create a social code of the Russian Federation. New to the social function is the problem of unemployment. Here we need, firstly, measures to protect the fully or partially unemployed, and secondly, state concern for reducing the unemployment rate. In a market economy, the primary function is taxation and collection of taxes, organically linked to economic and social. The budget of the state, its financial capabilities are entirely dependent on various kinds of taxes, fees, duties and other obligatory payments. Hence, the state policy of taxation, the duty of the state in the interests of social justice to regulate high and ultra-high incomes through progressive taxation, acquire fundamental importance. The Law on the Fundamentals of the Tax System in the Russian Federation of December 27, 1992 defines the rights, duties and responsibilities of taxpayers and tax authorities, the procedure for establishing or canceling taxes and other payments, objects of taxation, tax benefits, types of taxes and control over their collection in the territory Russian Federation. However, this law no longer meets the requirements of today's life. There is a need to update and codify tax legislation. The tax system should support producers working for the consumer market and stimulate investment. The tax burden must be shifted from the sphere of production to the sphere of trade and consumption. Like air, Russia needs progressive legislation to prevent a sharp social stratification of society. It is also necessary to create organizational and legal mechanisms that ensure the impossibility of evading tax payments, because this phenomenon is widespread. The function of ensuring the rights and freedoms of citizens, law and order is also one of the most important in the activities of the Russian state. The Constitution of the Russian Federation states that Russia is a constitutional state. Consequently, the primary task is to ensure that the constitutional rights and freedoms of man and citizen become real, that is, comprehensively guaranteed and protected. While the country is being overwhelmed by a high wave of crime, the honor of a citizen, the inviolability of his personality, housing and other rights are defenseless against criminals, bureaucrats, and corrupt officials. It is necessary to solve the problem of citizen's security with the use of legal, organizational, personnel, and financial measures. A developed and accessible system of legal assistance to the population is also required. The alarming ecological situation in the world and the country gives independent importance to the function of protecting nature and the environment. Environmentally aggressive industrial and agricultural production is also aggressive in relation to a person, his health, and the well-being of future generations. The right of citizens to a healthy environment is enshrined in the Constitution. Therefore, the obligation of all state bodies to provide conditions conducive to the improvement of nature is constitutional. The main attention here should be paid to ensuring the environmentally safe sustainable development of the country in the conditions of market relations; environmental protection (including the recovery from the ecological crisis of large cities and industrial centers, radiation safety of the population); improvement and restoration of disturbed ecosystems in Russia; participation in solving global (world) environmental problems. There is an urgent need for a scientifically substantiated concept of the transition of the Russian Federation to a sustainable development model that provides a balanced solution of socio-economic and environmental problems. The exit of the Russian economy from the crisis is unthinkable without the development of science and technology, which determines the importance of the state's function of ensuring (stimulating) scientific and technological progress. The weakening of the attention of the state in recent years to this vital direction of its activity had an immediate and disastrous effect on the once powerful scientific and technical potential of the country. Every year, many thousands of scientists are forced to look for their daily bread either in commerce (and then farewell to science) or abroad. At the same time, the influx of fresh young forces into science almost stopped. The country is gradually losing its modern technical infrastructure, the most valuable (primarily science-intensive) industries. We are already lagging behind not only world achievements, but also ourselves. If the situation is not changed, then Russia will have no chance of a worthy place among the states of the world in the coming XNUMXst century. The main goal of all transformations in the organization of science is the creation of favorable conditions for the creative activity of primary scientific teams. This requires budget financing of fundamental scientific research, the adoption of a law on science and scientific and technical policy. 5. External functions of the Russian state The profound transformations of the entire system of social relations within the country could not but be reflected in Russian foreign policy. But over the past period, not only Russia has changed beyond recognition. The whole world has become different, more complex and unpredictable. The basis of the foreign policy of the Russian state is the universally recognized principles and norms of international law. Russia respects the sovereignty, territorial integrity and independence of other states and demands the same from them. Within the framework of these universal principles, our state will defend its interests and, if necessary, firmly and firmly. This is what any self-respecting state does, especially when it comes to protecting human rights, his honor and dignity. The urgent problems of integration into the world economy, the use of the advantages of the international division of labor put forward the function of trade, economic, partnerships with the world community as one of the most important. Its implementation requires that measures to liberalize exports be accompanied by the establishment of strict state control over the export of strategically important raw materials and energy resources and currency control from the country. The purpose of such control and of all trade and economic activities of the state is to prevent Russia from becoming a raw material appendage of the developed capitalist countries. Today, the toughest sanctions against violators who illegally hide foreign currency abroad are also vital. The function under consideration involves not only mutually beneficial trade with other states, but also the attraction of foreign investment in the Russian economy. The function of maintaining peace and improving the international situation does not lose its relevance and significance. In this direction, the Russian state has clear priorities in international politics. The most important of them is the prevention of a new global war ("cold" or "hot"). That is why Russia unambiguously takes the position of strengthening the regime of non-proliferation of weapons of mass destruction and the latest military technologies. But we consider this principle obligatory for everyone, and not just for Russia, as some believe. The Russian state must put an end to the vicious practice of unilateral concessions. The Russian state actively participates in international peacekeeping actions to resolve international and ethnic conflicts. The modern world needs a new look at the global problems and goals of the XNUMXst century. And Russia is capable of generating big original ideas here. The function of the country's defense also continues to be among the main ones, because one of the most important aspects of strengthening statehood is to ensure the military security of the Russian Federation. The Armed Forces and other troops of Russia are intended: - to protect the sovereignty and territorial integrity, other vital interests of the state in cases of aggression against it and its allies; - suppression of armed conflicts that threaten the vital interests of Russia, any illegal armed violence within Russia, on its state borders, the borders of other states in accordance with treaty obligations; - carrying out operations to maintain peace by decision of the UN Security Council or in accordance with Russia's international obligations. The growing interconnectedness of all countries of the world makes it necessary for the Russian state to cooperate with all the states of the planet in solving world, global problems - the fight against international crime, the prevention of environmental disasters, the universal protection of nature and the preservation of a favorable global climate. 6. The mechanism (apparatus) of the Russian state The problems of strengthening the Russian state naturally require that its working part, that is, the mechanism, act clearly, smoothly and efficiently. The mechanism of the Russian state is a system of interconnected state bodies (institutions) united by common principles that exercise state power and functions of the state and solve its tasks. The mechanism of our state should be characterized by the unity of all parts (elements), their close and business-like interaction, since all state bodies exercise the unified power of the people, rely on the same principles of education and activity - democracy, legality, separation of powers, subordination and coordination, federalism and professionalism. Democracy. In a democratic state, all its bodies (institutions) must be created and formed on the democratic principles of election, accountability, accountability, publicity, openness and accessibility to the people. However, in real life, these principles are often discredited, and a negative image of democracy is formed in the mass consciousness as a weak, amorphous government that primarily defends its corporate interests. Russian society has not yet felt the democracy of state bodies, their strong connection with the people. In addition, the principle of appointment is widely applied in the formation of state bodies. Legality. In a state governed by the rule of law, the principle of legality is addressed primarily to the state and its bodies. Respect laws, unquestioningly follow and obey them, act within their competence, ensure and guarantee the rights and freedoms of citizens - the most important constitutional duty of state bodies. A low legal culture, the lawlessness of officials, employees of state bodies have a corrupting effect on the mechanism of the state, on society. Separation of powers. Skillful use of this principle ensures flexible and constant mutual control of the upper echelons of state power, warns against the usurpation of state power by one or another body. In addition, this principle increases the efficiency of the state mechanism. Subordination and coordination. A clear, well-coordinated and highly efficient operation of the mechanism of the state is impossible without strict state discipline, without vertical subordination and horizontal business coordination. Discipline cements the entire mechanism of the state, ensures its integrity and efficiency. Federalism. This principle has a great influence on the mechanism of the Russian state. A number of federal bodies (for example, the Federal Assembly) are formed with the participation of representatives of the subjects of the Federation. Along with the general federal bodies, state bodies of the constituent entities of the Federation are created and operate, between which relations of coordination and subordination are formed. Professionalism. The quality of its work depends to a decisive extent on the human factor, that is, on the personnel of the state apparatus (professionals or amateurs working there). Without personnel, the mechanism of the state is a lifeless abstraction. The fundamental basis of professionalism is the competence of public officials. In the state apparatus professionalism is opposed by dilettantism. Sometimes he is self-confident, aggressive and seeks to displace professionalism. In practice, dilettantism is expressed in the absence of the necessary knowledge, in organizational helplessness, in the inability to foresee the results of one's actions, the consequences of decisions made. The young mechanism (apparatus) of the Russian state has already managed to "acquire" serious and destructive diseases. It is rapidly swelling, the army of officials is growing, among which there are many amateurs. The paradox lies in the fact that the level of state administration of public affairs falls below the lowest limit, and the mechanism of the state is rapidly growing, exacerbating the super-tense financial situation in the country. Especially intolerable are corruption, bribery, venality of officials, officials, which struck a certain part of civil servants. A bribe today is a pass to solving a lot of problems. The corrupt rot of the state apparatus can be countered by: - exact legal definition of the competence of each body, official; - effective control; - strict moral and legal responsibility; - well-established certification and re-certification of employees of state bodies. The federal law on the fundamentals of the civil service of the Russian Federation of July 5, 1995 is directed at the qualitative improvement of the mechanism of the Russian state. It establishes the legal basis for the civil service of the Russian Federation, the rights, duties and responsibilities of civil servants. 7. Federal bodies of the Russian state According to the Constitution of the Russian Federation, state power in the Russian Federation is exercised by the President, the Federal Assembly (Parliament), the Government, and the courts of the Russian Federation. State power is exercised on the basis of the principle of separation of powers. Legislative, executive and judicial authorities are independent. President of Russian Federation. The institute of presidency arose in the former Soviet Union in 1990, having no analogues in Russian history. In Russia, the post of President was introduced on the basis of a referendum on March 17, 1991. The first President of the Russian Federation was elected on June 12, 1991. According to the Constitution of the Russian Federation, the President is the head of state, the guarantor of the Constitution, the rights and freedoms of citizens. In accordance with the Constitution and federal laws, it determines the main directions of the domestic and foreign policy of the state, ensures the coordinated functioning and interaction of state authorities, and represents the Russian Federation within the country and in international relations. A citizen of the Russian Federation not younger than 35 years of age who has permanently resided in Russia for at least 10 years may be elected President. The President is elected for four years on the basis of universal, equal and direct suffrage by secret ballot. The President has broad powers - representative, law-making, managerial, emergency, etc. in the field of domestic and international relations, state security and defense. Power ministries are subordinated to him. He has the right of legislative initiative and suspensive veto in relation to adopted laws, issues decrees, orders, addresses the Federal Assembly with annual messages on the situation in the country, on the main directions of the foreign and domestic policy of the state. Such powers of the President, if expedient, are apparently only for a transitional period. An impressive apparatus (about 2 employees) has been created to carry them out. In fact, there are two apparatuses of executive power in the country - presidential and governmental, but this, unfortunately, does not make their work sufficiently effective. In addition, the President of the Russian Federation is the bearer of personalized responsibility for the decisions he makes and their social consequences. He cannot shift this responsibility either to his assistants or to his entourage. The institute of presidency, new to our country, will undoubtedly be subjected to critical evaluation from the point of view of its usefulness and necessity for the people, for the country. The Federal Assembly - the Parliament of the Russian Federation - is a representative and legislative body. The Federal Assembly consists of two chambers - the Federation Council and the State Duma. The Federation Council consists of two representatives from each subject of the Federation: one each from the representative and executive body of state power. The State Duma consists of 450 deputies who work on a professional permanent basis and cannot engage in other paid activities, except for teaching, scientific or other creative activities. The Federation Council and the State Duma sit separately. They form committees and commissions, hold parliamentary hearings on issues within their jurisdiction, and adopt resolutions. The legislative function is unevenly distributed among the chambers. Federal laws are adopted by the State Duma. The Federation Council only approves or rejects them. But if the law is rejected, the Duma may vote again and pass it. Both chambers participate in the adoption of federal constitutional laws. A significant place in the competence of the Russian parliament is occupied by the powers associated with the formation of the highest bodies of the state. On the proposal of the President, the Federation Council appoints judges of the Constitutional, Supreme, and Supreme Arbitration Courts, appoints and dismisses the Prosecutor General of Russia. The State Duma gives its consent to the President for the appointment of the Chairman of the Government, etc. The Government of the Russian Federation exercises executive power. Without a strong executive power, the most necessary and high-quality laws can turn into unrealized opportunities. However, the responsibilities of modern government do not end there. It also includes a variety of managerial activities for the implementation of the social purpose of the state, the performance of its functions. According to the Constitution, the Government of Russia is an independent state body. It has a legislative initiative, forms and executes the federal budget, pursues a unified financial, credit and monetary policy, manages federal property, a unified state policy in the field of culture, science, education, health, social security, ecology, takes measures to ensure the defense of the country, state security, the implementation of foreign policy, to strengthen the rule of law, protect the rights and freedoms of citizens, property, etc. The Government of the Russian Federation consists of the Chairman, his deputies and ministers. The Chairman is appointed by the President with the consent of the State Duma. The remaining members of the Government are appointed by the President on the proposal of the Chairman. The government performs its many tasks and functions through its subordinate ministries and central departments with their administrative apparatus. Within its competence, it issues resolutions and orders and ensures their execution. Russia, more than any other country, needs a strong and effective government. This leads to the search for ways to increase its independence, because only a government with independence is capable of taking the initiative, can be held responsible for its activities. The judiciary represents the third branch of government. Justice in the Russian Federation is carried out only by the court through constitutional, civil, administrative and criminal proceedings. Judges may be citizens who have reached the age of 25, have a higher legal education and work experience in the legal profession for at least five years. Judges are independent and subject only to the Constitution and the law. They are irreplaceable, inviolable. The trial of cases in all courts is open. Hearing of cases in closed session is allowed only in cases provided for by law. Judicial proceedings are carried out on the basis of competitiveness and equality of the parties. In cases stipulated by federal law, it is conducted with the participation of jurors. Judicial power at the level of the Federation is exercised by the Constitutional, Supreme, Supreme Arbitration Courts, the powers and procedure for the formation and activities of which are established by federal constitutional law. If the state has a strong judiciary, the state itself is strong, since the legislative and executive authorities spend less effort on the implementation of their decisions and are deprived of the temptation to act by non-legal means. In order to form an effective system of justice, operating on strict legal and democratic principles, judicial reform is being carried out in the country. It must provide: - universality of judicial protection (the possibility of protection from any manifestations of arbitrariness and violence); - accessibility of justice; - efficiency of judicial protection of rights and legitimate interests; - unconditional execution of judgments. The Prosecutor's Office of the Russian Federation constitutes a single centralized system with the subordination of lower prosecutors to higher ones and to the Prosecutor General of Russia. The Prosecutor General is appointed and dismissed by the Federation Council on the proposal of the President. He appoints prosecutors of the subjects of the Federation in agreement with the latter and other prosecutors. The powers, organization and procedure for the activities of the prosecutor's office are determined by federal law. The systems of state authorities of republics, territories, regions, cities of federal significance, autonomous regions, autonomous districts are created by them independently in accordance with the fundamentals of the constitutional system of Russia and the general principles of organization of representative and executive bodies of state power established by federal law. Bodies of local self-government are not included in the mechanism of the state, because they are not state. 8. Form of government in the Russian state During the preparation of the new Constitution of Russia, many problems of the theory and practice of state building, including the form of government, were clearly highlighted. The essence of the discussions boiled down to an alternative: a presidential or parliamentary republic should be approved in our country. However, the supporters of the rigid alternative did not take into account that under modern conditions, the gradations that developed in the XNUMXth century are changing, elements of various forms of government are interpenetrating, and mixed, "hybrid" forms are emerging. These processes reflect new trends in modern political development, most often caused by the need to increase the level of controllability of the state, to give greater independence and stability to the executive authorities. The form of government, i.e., the order of organization and relationships of the highest bodies of the state, depends on many factors: the ratio of socio-political forces, the level of legal and political culture, etc. The difficult situation of the transition to a market economy and acute social tensions led to the fact that in the Russian Federation a presidential republic was established as a form of government, but it has a number of features compared to traditional presidential republics. First, along with the features of a presidential republic (this is, in particular, the President's control over the activities of the Government), this form has (albeit insignificant) elements of a parliamentary republic, consisting in the fact that the State Duma can express no confidence in the Government (although it is up to the Government to decide its fate and in this case it will be the President). Secondly, there is an imbalance between the legislative and presidential powers, a significant preponderance of the latter, which to some extent violates the necessary balance and stability of state power as a whole. Finally, thirdly, the uniqueness of Russia as a federation cannot but be reflected in the mechanism of state power, especially taking into account the fact that a number of its republics also have the institution of the presidency. 9. Form of government of the Russian Federation The territorial organization of state power in Russia is one of the most acute problems of state building. It consists in finding and maintaining the optimal balance between the activities of the federal government to ensure the territorial integrity, unity of the state and the desire of the regions for greater independence. Any distortions here are quite dangerous. The immeasurable strengthening of the federal government, the illegality of its actions in this area is the path to centralism and unitarism. The result of the boundless independence of the regions may be separatism, weakening and destruction of statehood. Hence the task of science and practice is to find a form of state structure in which the natural desire of the regions for independence will not pose a threat to the integrity of Russia. The first steps along this path have already been taken in the preparation and adoption of the Federal Treaty and the Constitution of the Russian Federation. The Russian state is an original, unique federation built on a treaty-constitutional legal foundation. The mechanism of regulation and self-adjustment of federal relations is bilateral agreements between federal authorities and subjects of the Federation (for example, with the Republic of Tatarstan) on the delimitation of jurisdiction and powers. Many peculiarities and problems are generated by the inconsistency of the two principles initially laid down in the basis of the state structure of the Russian Federation: national-territorial (republics, autonomous region, autonomous districts) and administrative-territorial (krai, region, city of federal significance). And the Russian Federation ranks first in the world in terms of the number of subjects. A large number of such subjects can lead to unmanageable quality. The necessary decentralization and the growing independence of the regions are balanced by the basic principles laid down in the Constitution, which guarantee: - inviolability of the territorial integrity of the state; - equal rights of the members of the Federation among themselves and in relation to the federal bodies of state power; - the unity of the foundations of the state system (observance by each region of such fundamental principles as democracy, separation of powers, multi-party system, equal electoral rights of citizens); - freedom of movement of people, dissemination of information, movement of goods and money throughout the state; - supremacy of federal legislation; inadmissibility of actions aimed at unilateral change in the status of members of the Federation. The Constitution delimited the subjects of jurisdiction and powers between the state authorities of the Russian Federation and the state authorities of its subjects into three groups: 1) subjects of jurisdiction of the Federation; 2) subjects of jurisdiction of the subjects of the Federation; 3) subjects of joint jurisdiction of the Federation and its subjects. Harmonization of federal relations requires a flexible policy of interethnic accord. To this end, a concept of Russia's state policy for the prevention and settlement of interethnic conflicts is being developed, which will be based on the principle of the priority of peaceful political means of resolving emerging contradictions. 10. The political regime of the Russian state The political situation in Russia is unstable, social tension in society persists. In other words, there are no conditions for a stable political regime in the country yet. As soon as the political situation in the country is changeable, mobile, then the political regime can develop according to one of several options. In recent years, the political landmark of the reformers of the first wave was the right-liberal (bourgeois-democratic) political regime. Its social backbone is usually the vast middle class, which is still in its infancy in Russia, and so the regime seems to stand little chance. In any case, the results of the parliamentary elections of 1993 and 1995 showed that such right-liberal groupings as the Democratic Choice of Russia and the Party of Economic Freedom do not enjoy the support of the general population. The social-democratic variant of the Scandinavian-style political regime is very promising in our country. In the political sphere, it is characterized by broad political democracy, democratic and legal methods of exercising power, moderate reforms and an evolutionary path of development of society. In socio-economic terms, this is a multi-structural economy, priority encouragement of small and medium-sized businesses, progressive taxation that prevents sharp social stratification, very attractive social programs, and a socially oriented market. The prerequisites for the transition to a social-democratic regime are the collective-communal traditions of Russia, the commitment of the broad masses of the people to the ideals of social justice, and the high adaptability of the economy to state-legal regulation. This regime could have a solid social base. At the same time, the social democratic parties and movements in Russia are still clearly fragmented, they do not have programs that are clear and understandable to the people, uniting ideas and concepts, so their possibilities are still poorly realized. Based on the interaction of social democratic and national-patriotic movements, mixed political regimes can arise. Their social base can become not only the general population, but also military personnel and entrepreneurs. However, the desire of national-patriots (if they come to power) to solve complex problems in simple ways (for example, attempts to revive the administrative-territorial state structure) can accelerate the process of detachment from Russia of many national-state entities, which will lead to its inevitable collapse. A tough dictatorship of mafia-criminal capital is not excluded in Russia either. This is, of course, one of the worst options. Which of the named variants of political regimes will become a reality in the Russian state, time and the degree of wisdom of Russians will show. 11. Prospects for the development of the Russian state Russia, presumably, has completely exhausted the limit of revolutionary upheavals, drastic reforms, voluntaristic experimentation, thoughtless borrowing of foreign experience. Relying on its own strengths, rich opportunities, historical, socio-cultural and national traditions, talented people, it can and must firmly embark on the path of transformation tested by world experience, combining the necessary stability, continuity and dynamism. In socio-economic terms, this is building a society that would organically synthesize the indisputable advantages of socialism with an efficient market economy, with a socially oriented market. In socio-political terms, the above means a course towards the creation of a civil society and a democratic legal social state. Society is called civil because its main and constantly functioning element, its living personification, is a truly free, confident in himself and his rights, a citizen who cares about the prosperity of society. Of course, a citizen is not free from the strict fulfillment of his duties, from the observance and execution of legal norms, existing laws. The vital activity of civil society is based on moral and legal principles, and broad civil liberties are organically combined with responsibility and discipline. Historical experience shows that without a developed civil society, state power acquires a totalitarian character. Thanks to civil society, it receives a powerful impulse of democracy, becomes at the service of man, to protect his rights and freedoms. The peculiarity of the Russian situation lies in the fact that, in parallel with the formation of civil society, the foundations of a democratic legal state are being created, which is objectively interested in supporting the institutions of civil society, seeks to actively help those of them who are able to directly strengthen the power and democracy of state power. Harmonization of natural mutually supporting ties and relations between civil society and the rule of law is the high road of world civilization, which sooner or later Russia will go anyway. Section four. theory of law Chapter 16. Concept, essence and social value of law 1. Understanding law in world and domestic jurisprudence 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 even increases. Questions of legal understanding belong to the number of "eternal" 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 society's life. In the world there are many scientific ideas, currents and points of view about what is law. But only recently have scholars begun to question what it means to understand law. Legal understanding is a scientific category that reflects the process and result of a purposeful mental activity of a person, including the knowledge of law, its perception (assessment) and attitude towards it as an integral social phenomenon. The subject of legal understanding is always a specific person, for example: a) a citizen with a minimum legal outlook, faced with problems of law in general; b) a professional lawyer who has sufficient knowledge of the law, is able to apply and interpret legal norms; c) a scientist, a person with abstract thinking, engaged in the study of law, possessing a sum of historical and modern knowledge, capable of interpreting not only the norms, but also the principles of law, owning a certain research methodology. Legal understanding is always subjective, original, although ideas about law may coincide in a group of individuals and in entire strata, classes. The object of legal understanding can be law on a planetary scale, the law of a particular society, a branch, an institution of law, individual legal norms. At the same time, knowledge about individual structural elements is extrapolated to the law as a whole. An important cognitive load here is borne by the environment and social phenomena interacting with law. The content of legal understanding is the knowledge of the subject about his rights and obligations, specific and general legal permissions, prohibitions, as well as the assessment and attitude towards them as fair or unfair. Depending on the level of culture, the methodological equipment of the subject and the choice of the subject of study, legal understanding can be complete or incomplete, correct or distorted, positive or negative. An ordinary person understands law in the way that his own mind allows him to do in certain cultural traditions of the corresponding era and society. For him, the understanding of law on a time scale is limited by the scope of his life. However, this does not mean that after his death legal understanding disappears completely. Such elements of legal understanding as knowledge, assessments can be transferred to other people, and the researcher-scientist also leaves behind written ideas about the law. In other words, the image of law, formed in the minds of our predecessors and expressed in the form of a particular concept, has a significant impact on the formation of legal understanding among descendants. When considering various theories and views on law, the following circumstances must be taken into account: - firstly, the historical conditions for the functioning of law and the framework of culture in which the "researcher" lived and worked; - secondly, the fact that the result of legal understanding always depends on the philosophical, moral, religious, ideological position of the subject who knows it; - thirdly, what is taken as the basis of a particular concept (the source of law formation or the essence of the phenomenon itself), what is understood by the source of law (man, God or space) and its essence (the will of a class, a measure of human freedom or the natural egoism of an individual ); - fourthly, the stability and longevity of concepts in some cases and their dynamism, the ability to adapt to developing social relations - in others. The current level of development of the humanities and the methodology of the study of social phenomena makes it possible to systematize various views on law on the basis of certain criteria. The very attitude to law, its fate, the fact that it has a positive or negative meaning for society, whether it acts as an independent social phenomenon or as an element of a different regulatory system, reveals opposing opinions. In particular, representatives of a number of philosophical movements considered law as part of morality (Schopenhauer) or as the lowest level of morality and denied the social value nature of law (L. Tolstoy, Vl. Solovyov). Anarchists expressed a negative attitude towards law; the problems of the withering away of law with the building of communism were actively discussed within the framework of Marxist legal theory. When solving the main question of philosophy about the relationship between being and consciousness, idealistic and materialistic approaches to the study of law stand out. The first is characterized by theological doctrines of law. Thomas Aquinas argued that law has not only a divine origin, but also a divine essence. Positive law (human laws) is only a means of realizing the goals destined by God for man. The followers of Aquinas - neo-Thomists - are trying to link the religious essence of law with the principles of natural law and empirical assessments of social relations in order to substantiate more viable and realistic versions of his teaching. At the other extreme, within the framework of the materialistic approach, a Marxist theory of law is being developed, the main postulates of which are: the conditionality of law by the economic basis of society, the class nature of law, the rigid dependence of law on the state, and its provision with the coercive power of the state. Depending on what is considered as a source of law formation - the state or human nature, there are natural law and positivist theories of law. Natural law views originate in ancient Greece and ancient Rome. They are associated with the names of Democritus, Socrates, Plato and reflect attempts to identify moral, just principles in law, laid down by the very nature of man. “The law,” Democritus emphasized, “seeks to help people's lives. But it can achieve this only when the citizens themselves want to live happily: for those who obey the law, the law is only evidence of their own virtue.” Natural law theory has gone through a difficult path of development, its popularity, bursts of prosperity have always been associated with the desire of people to change their lives for the better - this is the Renaissance, the era of bourgeois revolutions and the modern era of transition to a rule of law state. The positive value of natural law theory is as follows: - firstly, it affirms the idea of natural, inalienable human rights; - secondly, thanks to this theory, they began to distinguish between law and law, natural and positive law; - thirdly, it conceptually combines law and morality. A critical remark to this theory may be that not always the idea of law as fair or unfair can be objectified in legal reality. The positivist theory of law (K. Bergbom, GV Shershenevich) arose to a large extent as an opposition to "natural law". Unlike natural law theory, for which fundamental rights and freedoms are primary in relation to legislation, positivism introduces the concept of "subjective law" as a derivative of objective law, established, created by the state. The state delegates subjective rights and establishes legal obligations in the rules of law that make up a closed perfect system. Positivism equates right and law. Positive here is the possibility of establishing a stable legal order, a detailed study of the dogma of law - the structure of the legal norm, the grounds for legal responsibility, the classification of norms and regulations, types of interpretation. The negative aspects of the theory include the artificial limitation of law introduced by it as a system from actual social relations, the lack of the possibility of a moral assessment of legal phenomena, and the refusal to study the content of law and its goals. Depending on what the basis (basic element) of law was seen in - the rule of law, legal consciousness, legal relationship - normative, psychological and sociological theories were formed. Normativist theory is based on the notion that law is a set of norms externally expressed in laws and other normative acts. G. Kelsen is considered the author of this concept, according to whom the law is a harmonious, with logically interconnected elements, a hierarchical pyramid headed by the "basic norm". The legal force and legitimacy of each norm depends on the "superior" norm in the pyramid, which has a higher degree of legal force. The modern understanding of law within the framework of this theory can be expressed by the following scheme: a) law is a system of interrelated and interacting norms set forth in normative acts (texts); b) the norms of law are issued by the state, they express the state will, erected into law; c) the rules of law govern the most important social relations; d) the law itself and its implementation are ensured, if necessary, by the coercive power of the state; e) the emergence of legal relations, the formation of legal consciousness, and legal behavior depend on the norms. The positive value of normativism is that: - this approach, firstly, allows you to create and improve the system of legislation; - secondly, it provides a certain regime of legality, uniform application of norms and individual-imperious decrees; - thirdly, it contributes to the formation of a "normative" idea of law as the formal and logical basis of the legal consciousness of citizens; - fourthly, it provides a formal certainty of law, which makes it possible to clearly designate the rights and obligations of subjects, to fix measures and means of state coercion; - fifthly, it allows one to abstract from the class and political characteristics of law, which is especially important in law enforcement. The disadvantage of the normative approach is seen in its denial of the conditionality of law by the needs of social development, ignoring the natural and moral principles in law and the role of legal consciousness in the implementation of legal norms, the absolutization of state influence on the legal system. Psychological theory, the founder of which is L.I. Petrazhitsky, recognizes a specific mental reality as law - the legal emotions of a person. The latter are imperative-attributive in nature and are divided into: a) experiencing the positive law established by the state; b) experiencing an intuitive, personal right. Intuitive law acts as a regulator of human behavior and therefore is regarded as a real, valid law. The positive thing here is that the theory draws attention to one of the most important aspects of the legal system - the psychological one. It is impossible to prepare and issue laws without studying the level of legal culture and legal awareness in society, and it is impossible to apply laws without taking into account the psychological characteristics of the individual. The shortcomings of this theory can be considered its one-sided nature, separation from objective reality, the impossibility of structuring law within its framework, distinguishing it from other socio-regulatory phenomena. The sociological theory of law originated in the middle of the XNUMXth century. The most prominent representatives of sociological jurisprudence were L. Dyugi, S. Muromtsev, E. Erlich, R. Pound. Sociological theory considers law as an empirical phenomenon. Its main postulate is that "law should be sought not in the norm or the psyche, but in real life." The concept of law is based on a public relation protected by the state. Norms of the law, sense of justice are not denied, but they are not recognized as law either. They are signs of law, and law itself is order in social relations, in the actions of people. Judicial or administrative bodies are called upon to reveal the essence of such an order, to resolve the dispute in a particular situation. In this case, the following provisions can be considered positive: a) society and law are considered as integral, interrelated phenomena; b) the theory proves that it is necessary to study not only the rules of law established by the state, but also the entire set of legal relations that have developed in society; c) the doctrine emphasizes the role of law as a means of social control and achieving social balance, elevates the role of the judiciary. Critically, in this theory, one must treat the denial of normativity as the most important property of law, the underestimation of moral and humanistic principles in law, the confusion of one of the factors in the formation of law - interest - with law itself. Each of these theories has its advantages and disadvantages, their appearance and development are due to the natural development of human society and testify to the necessity and social value of law in people's lives. 2. The concept of law In modern legal science, the term "law" is used in several meanings. Firstly, the social and legal claims of people are called law, for example, the human right to life, the right of peoples to self-determination, etc. These claims are due to the nature of man and society and are considered natural rights. Second, law refers to a system of legal norms. This is a law in an objective sense, because the rules of law are created and act independently of the will of individuals. This meaning is embedded in the term "law" in the phrases "Russian law", "labor law", "invention law", "international law", etc. The term "law" in such cases does not have a plural. Thirdly, the named term denotes officially recognized opportunities that an individual or legal entity, organization has. So, citizens have the right to work, rest, health protection, property, etc. Organizations have rights to property, to activities in a certain area of state and public life, etc. In all these cases, we are talking about right in the subjective sense , i.e., about the right belonging to an individual - the subject of law. Fourthly, the term "law" is used to refer to a system of all legal phenomena, including natural law, law in an objective and subjective sense. Here it is synonymous with the term "legal system". For example, there are such legal systems as Anglo-Saxon law, Romano-Germanic law, national legal systems, etc. In what sense the term "law" is used in each case must be decided on the basis of the context, which usually does not cause difficulties. We must also remember that the term "law" is used in a non-legal sense. There are moral rights, the rights of members of public associations, parties, unions, rights that arise on the basis of customs, etc. Therefore, it is especially important to give a precise definition of the concept of law, to establish the signs and properties that distinguish it from other social regulators. In legal science, many definitions of law have been developed, which differ depending on what exactly in legal phenomena is taken as the main, the most essential. In such cases, we are talking about the definition of the essence of law. For educational purposes, definitions that formulate specific features of law are of considerable value. With their help, law stands out from other social phenomena. At the same time, for a deeper understanding of law, it is also necessary to understand non-specific features that are the same for law and related phenomena. Law has natural connections with the economy, politics, morality, and especially deep ties with the state. All these connections are expressed in one way or another in its signs. It is necessary to distinguish between signs and properties of law. Signs characterize law as a concept, properties - as a real phenomenon. Signs and properties are in correspondence, i.e. properties are reflected and expressed in the concept of law as its signs. Philosophers, not without reason, argue that any phenomenon of reality has an innumerable set of properties. Therefore, the concept includes features that reflect the most significant of its properties. What properties are considered essential? This largely depends on the position of a particular author. The definition of law given by K. Marx and F. Engels in the "Manifesto of the Communist Party" is widely known. Addressing the bourgeois class, they wrote: "Your right is only the will of your class elevated to a law, the will whose content is determined by the material conditions of life of your class." In other words, the will of the class that dominates the economy and politics is imposed as a law on the entire society. With this understanding, law necessarily presupposes the lack of rights of other, non-dominant sections of the population and is regarded by them as an instrument of oppression and exploitation. The limitation of the class approach was that the historically transient aspects of the content of law were taken as its essence, and the law itself received a negative assessment as an instrument of violence, as a social evil to be destroyed. Fundamentally different is the approach when the general social essence and purpose of law is recognized, when it is regarded as an expression of a compromise between classes, different social strata of society. In the most developed modern legal systems (Anglo-Saxon and Romano-Germanic law), priority is given to a person, his freedom, interests, needs. Thus, the real essence of law lies in the fact that it reflects a normatively defined, state-guaranteed measure of individual freedom. Based on the recognition of the general social essence of law, the following definition can be formulated. Law is a system of regulation of social relations, conditioned by the nature of man and society and expressing the freedom of the individual, which is characterized by normativity, formal certainty in official sources and provision with the possibility of state coercion. Let us consider the most important properties (features) of law that characterize it as a specific system of regulation of social relations. Normativity. Law has a normative character, which makes it related to other forms of social regulation - morality, customs, etc. The rights that each person or legal entity has are not arbitrary, they are measured and determined in accordance with applicable regulations. In some doctrines of law (for example, in the theory of normativism), the property of normativity is recognized as dominant and law is defined as a system of legal norms. With this approach, the rights of an individual or legal entity turn out to be just the result of the operation of norms and, as it were, are imposed on them from the outside. In fact, the opposite relationship takes place: as a result of the repeated repetition of any behavior options, the corresponding rules are formed. Knowledge of the established rules makes it easier for a person to choose the right decision regarding how he should act in a given life situation. The value of the property under consideration also lies in the fact that “normativity expresses the need to establish normative principles in public relations related to ensuring the orderliness of public life, the movement of society towards freedom, consent and compromise in public life, the protected status of an autonomous individual, her rights and freedom of behavior. . The norms of law should be regarded as a "working tool" with the help of which human freedom is ensured and the social antipode of law - arbitrariness and lawlessness - is overcome. Socio-legal claims, human rights must be transformed and acquire the form of a subjective right. Only then do they receive official recognition and guaranteed state protection. The transformation of human rights into subjective rights is mediated by the rule of law. Normativity in the legal sphere is not just the formation of a typical rule, but something more - a guarantee of the implementation of a subjective right. The owner of a subjective right is not only free in his actions, his freedom is secured, protected by the universally binding norm, behind which stands the power of the state. The specificity of the normativity of law lies in the fact that the law is elevated to the law, to the rank of official rules. Formally, normativity is expressed in positive law, i.e., in legislation where norms exist in their pure form. Natural-legal claims are potentially normative, since only with normative fixing do they turn from a possibility into reality. The subjective right also has a normative nature, because its content in its main features follows from normative prescriptions. The normativity of law to the greatest extent expresses its functional purpose of being a regulator of people's behavior, social relations. Law, through legal norms, carries information to every citizen or organization about what actions are possible, what are prohibited, and what are necessary. If a person acts within the framework of the law, then he feels confident and free, is under the protection of society and the state. Law, thus, defines the sphere of human freedom and thereby regulates his behavior. If a person ignores the regulatory impact of law, he is not free. For this reason, the criminal is the most unfree person. Intellectual-volitional nature of law. Law is a manifestation of the will and consciousness of people. The intellectual side of law is that it is a form of reflection of social patterns and social relations - the subject of legal regulation. The law reflects and expresses the needs, interests, goals of society, individuals and organizations. We emphasize that these needs, interests and goals are usually contradictory, and sometimes even opposite. Law expresses social compromise on the basis of justice and reason. Historically, there is a struggle between two trends in law, since its origins lie in society and the state. The formation of law is completed only with the harmonization of the links between them. Law becomes rational, acquires an intellectual character. The formation and functioning of law as an expression of freedom, justice and reason is possible only in a society in which all individuals have economic, political and spiritual freedom. But this is feasible only in a developed civil society and the rule of law. Law is a manifestation of not only the intellect, but also the will of people, because it determines their future behavior, with its help, subjective interests and needs are realized, and the intended goals are achieved. The volitional beginning of law must be considered in several aspects. First, the content of law is based on the social and legal claims of individuals, their organizations and social groups, and their will is expressed in these claims. Secondly, the state recognition of these claims is carried out through the will of the competent state bodies, i.e. the formation of law is mediated by the will of society and the state. Thirdly, the regulating effect of law is possible only with the "participation" of the consciousness and will of persons who implement legal norms. Security with the possibility of state coercion. This is a specific sign of law that distinguishes it from other forms of social regulation: morality, customs, corporate norms, etc. The state, which has a monopoly on the implementation of coercion, is a necessary external factor in the existence and functioning of law. Historically, law arose and developed in cooperation with the state, initially performing mainly a protective function. It is the state that gives the law highly valuable properties: stability, strict certainty and security of the "future", which in its characteristics approaches the "existing", as if becoming part of the existing. Law, thus, pushes the boundaries of stability, certainty, and, consequently, the scope of freedom in the sphere of social life. State coercion is implemented in two directions. Firstly, it provides protection of a subjective right and aims to force the offender to fulfill his obligation in the interests of the injured party (for example, debt collection, compensation for damages). Secondly, in cases specified by law, the perpetrator is brought to legal responsibility and punished (imprisonment, confiscation of property, a fine, etc.). State coercion is a factor that made it possible to clearly distinguish between right and duty, that is, the scope of personal freedom and its boundaries. A person acting within the law is free. A person who violates duties does not act freely. The value of the state for law lies in the fact that with the help of state coercion (and its possibilities), the boundary between freedom and lack of freedom, arbitrariness is clearly established. This boundary is marked through a legal obligation. State coercion restricts a person's freedom to the extent that it can deprive him of this freedom. Therefore, a clear definition of the sphere of freedom (law), its boundaries (legal obligation) and restrictions (legal responsibility) is necessary. These tasks are solved thanks to formal certainty - another property that expresses the connection between law and the state. formal certainty. It should be noted that formal certainty is to some extent also characteristic of other normative systems. Thus, corporate norms are enshrined in charters, regulations and other normative acts. Religious norms-commandments are formulated in sacred books. However, in these cases, the form of the relevant rules is given not by the state, but by other organizations (public, religious). The state, in contrast to them, gives the right a universally binding meaning, elevating the right to the law, gives it an official form of expression. The rules of law are formally fixed in laws and other normative acts, which are subject to a uniform interpretation. In case law, formal certainty is achieved by the official publication of court decisions, recognized as samples that are mandatory when considering similar legal cases. In customary law, it is provided by the formula of the law that authorizes the application of the custom, or by the text of a judgment made on the basis of custom. As a result, subjective rights, duties, and responsibilities of citizens and organizations are clearly and unambiguously defined on the basis of the rule of law and individual legal decisions. Thus, the state gives form to the legal content. The role of the state cannot be exaggerated and, for example, it cannot be considered that law is the result, the product of state activity. Such misconceptions dominated domestic science and practice for a long time. The connection between society, state and law in this aspect is described by the formula "the content of law is created by society, the form of law - by the state". The types of forms (sources) of law depend on the way the state participates in lawmaking: authorized custom, judicial precedent, normative act. Consistency. Law is a complex systemic formation. At present, in the light of new approaches to understanding law, its division into three elements, into natural, positive and subjective law, is of particular importance. The first element is natural law, consisting of social and legal claims, the content of which is determined by the nature of man and society. The most important part of natural law is human rights, or, in other words, the opportunities that society and the state are able to provide to every citizen. The second element is positive law. This is the legislation and other sources of legal norms, in which the social and legal claims of citizens, organizations, social groups receive official state recognition. The third element is a subjective right, i.e., individual opportunities that arise on the basis of the norms of positive law and satisfy the interests and needs of its owner. The absence of at least one of the listed elements deforms the law, it loses the property of an effective regulator of social relations and people's behavior. Law is often reduced to a set (system) of norms. With this understanding, law becomes external to a person, imposed on him from above. Such a narrow interpretation distorts the meaning of law. For a person, it is not the norms in themselves that are valuable, but the real opportunities and benefits that they provide. Benefits (both material and spiritual) a person has and produces himself. The meaning of social and legal claims is that they receive official recognition, that is, they are transformed into subjective rights. The instrument by which natural law claims are transformed into subjective rights is the norms of positive law. What is more important for a person: guaranteed real benefits or a tool to guarantee them (legal norms)? Probably, after all, it is a blessing, and not the norms by which it is measured and by which it is protected. The reduction of law to a set of norms leads to its identification with positive law and the disregard of natural law. The fact is that subjective law has two sources - formal (rules of law, or positive law) and substantive (natural law). The rupture of ties between them gives rise to the idea, or rather, the illusion that subjective right is a "gift" of the state, the legislator, a boon granted from above. An individual person becomes dependent on the law and, in fact, powerless. The main meaning of legal regulation lies in the transformation of natural law into subjective law, which is carried out by the recognition of social and legal claims in the sources of law, i.e., the construction of natural law into law. Systemic relations of law are also considered in other aspects: law is divided into private and public, into norms, institutions and branches, and includes a system of legislation. These issues will be discussed in more detail in subsequent chapters. 3. Law and law The question of the relationship between law and law causes a lot of controversy in the legal literature. To understand their essence, it is necessary to take into account that the term "law" is rather ambiguous. In a narrow sense, this is an act of supreme legal force, adopted by a legislative body or by popular vote, in a broad sense - any source of law. In the definition of K. Marx and F. Engels, in which law is considered as a will elevated to a law, the analyzed term is used in a broad sense, and includes a normative act, a judicial precedent, and a sanctioned custom. To elevate the will into law means to give it universally binding significance, legal force, to ensure state protection. The dispute about whether law and law coincide will be meaningful only if the term "law" is understood in a broad sense. The desire to identify law and law has a certain basis: in this case, the framework of law is strictly formalized, only that which is elevated to law is recognized as law; there is no law outside the law and cannot be. We note in particular: if by law we understand only the norms of law, then the conclusion about the identity of law and law is inevitable, since legal norms do not exist outside the sources of law. However, law cannot be reduced to norms. In addition to norms, it (we repeat) includes social and legal claims (natural law) and subjective rights. In this triad, the purpose of the norms is to transform social and legal claims into subjective rights - a "legal storehouse" of all kinds of spiritual and material benefits. Consequently, law covers the sphere not only of the proper (normative and individual prescriptions and decisions), but also of the real (the actual use of legal opportunities, the actual performance of duties). Law is both a regulator and a legal form of social relations that appears as a result of regulation, representing the existence of society. With such a broad understanding of law, it becomes obvious that its content is created by society, and only giving this content a normative form, that is, “raising it into law,” is carried out by the state. The formula "Law is created by society, and law - by the state" most accurately expresses the distinction between law and law. It is only necessary not to forget about the unity of the legal content and legal form and possible contradictions between them. Legal content that is not elevated to law has no guarantees of implementation, and therefore is not a right in the exact sense of the word. A law may be unlawful if its content is the arbitrariness of state power. Such laws can be defined as formal law, that is, law in terms of form, but not content. Life shows that legislation as a whole may have nothing to do with true law (totalitarian states). The distinction between law and law has a great humanistic meaning, because then law is considered as a criterion for the quality of law, establishing how much the latter recognizes human rights, his interests and needs. 4. Essence of law The essence is the main thing, the main thing in the object under consideration, and therefore its clarification is of particular value in the process of cognition. However, the correct conclusion about the essence of any phenomenon can be reached only when it has received sufficient development, basically formed. In relation to law, this provision is of paramount importance. In the first phases of the development of human society (in the Asian theocratic monarchies, in slave-owning and feudal states), as a rule, undeveloped legal systems existed. We must agree with this opinion. Indeed, during the period of the slaveholding and feudal system, law was traditional, or ordinary (an exception is ancient Roman private law). The underdevelopment of traditional law primarily consisted in the fact that it performed only a protective function and acted as part of a single system of social regulation, in which religion, morality and customs performed the regulatory function. In this regard, we note the following fact. When Marx studied law intensively as a university student, he came to the conclusion that the most true legal system was the law of ancient Rome. In such a situation, it was premature to draw final conclusions about the essence of law, since it could be mistaken for the transient features of a still developing law. However, conclusions were drawn and the basis of the Marxist concept of law was the provision on its class essence, which was actively introduced into jurisprudence and legal consciousness under socialism. Now it can already be stated that the state and law arose much earlier than society was divided into classes. The law that arose together with the state for a long time only supplemented the rooted system of social regulation. The defining feature of emerging traditional law was state coercion, not classism. The further course of economic and social development led to the class division of society, gave rise to antagonistic contradictions. However, both under the slave system and under feudalism, law still remained traditional, customary and did not play a significant role in the system of social regulation. Consequently, the regulatory system as a whole had a class essence, in which law was still an alien and underdeveloped entity. Only with the establishment of the bourgeois economic and social system and the corresponding system of spiritual values did law as a regulator of social relations come to the fore. The legal worldview that emerged and became dominant in many developed countries has nothing to do with class ideology and is based on the ideas of equality, freedom, reason, and human rights. The law is built on three pillars. This is morality, the state, the economy. Law arises on the basis of morality as a method of regulation different from it; the state gives it officiality, guarantees, strength; the economy is the main subject of regulation, the root cause of the emergence of law, because this is the area where morality as a regulator has found its inconsistency. Morality, the state and the economy are the external conditions that brought the right to life as a new social phenomenon. The specificity of law lies in the fact that at the center of it are an individual person with his interests and needs, his freedom. Of course, human freedom is historically prepared by the comprehensive development of society, its most important spheres - spiritual, economic, political. However, it is in law and through law that freedom is fixed and brought to every person, to every organization. The foregoing allows us to conclude that law has a general social essence, serves the interests of all people without exception, ensures organization, orderliness, stability and development of social ties. When people enter into relations with each other as subjects of law, this means that they have the authority of society and the state behind them, and they can act freely without fear of adverse social consequences. The general social essence of law is concretized in its understanding as a measure of freedom. Within the limits of his rights, a person is free in his actions, society, represented by the state, stands guard over this freedom. Thus, the right is not just freedom, but freedom guaranteed from infringement, protected freedom. Good is protected from evil. Thanks to the law, good becomes the norm of life, evil - a violation of this norm. 5. Principles of law The principles of law are guiding ideas that characterize the content of law, its essence and purpose in society. On the one hand, they express the laws of law, and on the other hand, they represent the most general rules that operate in the entire field of legal regulation and apply to all subjects. These norms are either directly formulated in the law, or are derived from the general meaning of the laws. The principles of law determine the ways of improving legal norms, acting as guiding ideas for the legislator. They are the link between the main patterns of development and functioning of society and the legal system. Thanks to the principles, the legal system adapts to the most important interests and needs of the individual and society, becomes compatible with them. Legal principles are subdivided into those inherent in law as a whole (general legal), its individual branches (sectoral) or a group of related industries (intersectoral). For example, the principle of individualization of punishment in criminal law belongs to sectoral ones, and the principle of competition in civil procedural and criminal procedural law belongs to intersectoral ones. Scholars are almost unanimous in their general characterization of legal principles, noting that this is not the result of the subjective discretion of legislators, but objectively inherent qualities of law. However, when it comes to establishing a specific list of general legal principles, each author has his own opinion here. They distinguish the principles of legality, justice, legal equality (universality of legal personality), social freedom, social, civic duty (discipline), objective truth, responsibility for guilt In law, the general principles of justice and freedom, which are developed in other principles of law: democracy in the formation and implementation of law, legality, national equality, humanism, equality of citizens before the law, mutual responsibility of the state and the individual. Russian law is characterized by the principles of democracy, the rule of law, federalism in the structure of the state and the structure of the legal system, the legal equality of citizens before the law, political, ideological and economic pluralism, humanism, the inviolability and inalienability of human rights, legality, justice, responsibility for guilt. Another list of legal principles was proposed by O.I. Tsybulevskaya. These are social justice, equality of citizens, unity of rights and duties, humanism, a combination of persuasion and coercion in law, democracy. The given opinions are enough to be convinced of essential divergences in views of various scientists. Moreover, subjectivism in solving this problem seems difficult to overcome. It is no coincidence that in some textbooks the question of the principles of law is not considered at all. And yet there is another author whose opinion must be taken into account. This is the legislator. Legal principles are enshrined in the Constitution of the Russian Federation. True, two points must be taken into account here: firstly, not all principles formulated in the Constitution of Russia are legal (for example, the principle of separation of powers), and secondly, the Constitution of the Russian Federation does not provide a complete list of general legal principles that can be enshrined in other normative acts or derived from the general meaning of laws. The content of the current Constitution of the Russian Federation allows us to single out the following principles of law: democracy, federalism, respect for human rights and freedoms, the direct effect of generally recognized principles and norms of international law, the supremacy of the Constitution and laws, equality, equality of all forms of ownership, justice. In Art. 6 of the Civil Code of the Russian Federation speaks of the possibility of applying, in the presence of gaps in the legislation, not only the general principles and meaning of civil legislation, but also the requirements of good faith, reasonableness and justice. These requirements are of general legal significance, and therefore it is logical to assume that they follow from the legal principles of good faith, reasonableness and fairness. Among the principles not directly formulated in the law are the principles of responsibility for guilt, the inseparable connection of rights and obligations. Let's look at some general legal principles in more detail. The principle of justice is of particular importance. It expresses to the greatest extent the general social essence of law, the desire to find a compromise between the participants in legal relations, between the individual and society, the citizen and the state. Justice requires a fit between actions and their social consequences. Work and its payment, harm and its compensation, crime and punishment must be proportionate. Laws reflect this proportionality if they comply with the principle of justice. The principle of respect for human rights reflects the fact that natural, innate, inalienable human rights form the core of the state's legal system. In accordance with Art. 2 of the Constitution of the Russian Federation, a person, his rights and freedoms are the highest value. Recognition, observance and protection of the rights and freedoms of man and citizen is the duty of the state. In Art. 18 of the Constitution says: "The rights and freedoms of man and citizen are directly applicable. They determine the meaning, content and application of laws, the activities of the legislative and executive authorities, local self-government and are provided with justice." The principle of equality establishes the equal legal status of all citizens, i.e. their equal constitutional rights and the same legal personality for all. In part 2 of Art. 19 of the Constitution of the Russian Federation states: "The state guarantees the equality of the rights and freedoms of man and citizen, regardless of gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, membership in public associations, as well as other circumstances. Any form of restriction of the rights of citizens on the grounds of social, racial, national, linguistic or religious affiliation is prohibited.” In accordance with the principle of equality, equal opportunities are ensured for citizens in all spheres of their life. The degree of realization of these opportunities depends on the social and legal activity of the person himself. The content of the principle of legality lies in the fact that, as Art. 15 of the Constitution of the Russian Federation, "The Constitution of the Russian Federation has the highest legal force, direct effect and is applied throughout the territory of the Russian Federation. Laws and other legal acts adopted in the Russian Federation must not contradict the Constitution of the Russian Federation. Bodies of state power, local self-government, officials , citizens and their associations are obliged to comply with the Constitution of the Russian Federation and laws. The principle of justice expresses guarantees for the protection of subjective rights in court. In part 1 of Art. 46 of the Constitution of the Russian Federation it is written: "Everyone is guaranteed judicial protection of his rights and freedoms." Over the centuries-old history of the development of law, the principles inherent in the form of law have also gradually developed, which in legal science are called legal axioms. Among them are the following: - the law has no retroactive effect; - everything that is not prohibited by law is permitted; - no one can be a judge in his own case; You cannot be convicted twice for the same offence. Most legal axioms are enshrined in law. 6. Social value and functions of law Values are specific social definitions of the objects of the surrounding world, revealing their positive or negative significance for a person and society. To understand the social value of law means to understand and reveal its positive role for the individual and society. The social value of law is expressed in the following. First, with the help of law, a universal stable order in social relations is ensured. Secondly, thanks to law, certainty and accuracy are achieved in the very content of social relations. Legal regulation is able to cover socially useful forms of lawful behavior, to separate it from arbitrariness and lack of freedom. Thirdly, the law provides the possibility of normal active actions of a person, because it prevents illegal interference in the sphere of his lawful activities with the help of legal liability mechanisms and other coercive measures. Fourth, law in a civilized society provides the optimal combination of freedom and justice, when, figuratively speaking, both the wolves are fed and the sheep are safe. Fifth, the institutions of civil society are being formed on a legal basis: a market economy, a multi-party political system, a democratic electoral system, a free "fourth power" (mass media) and the rule of law. In Russia, there is neither a civil society nor a rule of law yet, therefore, law in many respects cannot manifest its value properties. The essence and social significance of law are manifested in its functions. They reflect the main directions of the impact of law on social relations and people's behavior, allow us to give a generalized description of the "work" of legal norms. First of all, law affects various spheres of society - the economy, politics, spiritual relations, and therefore performs general social functions - economic, political and educational. Here it acts together with other social institutions, but by its own, specific means. In addition to social law has a functional purpose. It is expressed in the fact that law acts as a regulator of social relations. This main functional purpose of law is manifested in a number of more specific functions. 1. The regulatory-static function, or the function of fixing, stabilizing social relations, is most clearly expressed in determining the social status of various subjects: securing the fundamental rights and freedoms of man and citizen, the competence of bodies and officials, the legal personality of individuals and legal entities. This function reflects the nature of law to the greatest extent: citizens and organizations are granted powers, within the boundaries of which they act freely, at their own discretion. And the wider these boundaries are extended, the more free people are in their actions. Regulatory-static function is implemented with the help of enabling and prohibiting norms and legal relations of a passive type arising on their basis. In such situations, the subjects of law themselves, on their own initiative, show legal activity. 2. With the help of the regulatory-dynamic function, law determines what the future behavior of people should be. This function is carried out with the help of binding norms. So, the legislation establishes the obligation to fulfill military duty, pay taxes, observe labor discipline, fulfill obligations under the contract, etc. The regulatory-dynamic function finds its manifestation in legal relations of an active type. 3. The protective function distinguishes law from other systems of social regulation, since it is carried out by state bodies that make individual power decisions, the execution of which is guaranteed by state coercion. The protective function contributes to the development in law as a regulator of social relationships of qualities valuable for the individual and society: stability, detailed and clear regulation, clear procedures. The protective function is implemented through the application of special protective norms, as well as regulatory norms operating in the protective mode. The latter takes place in case of violation of subjective rights and appeal to the competent state bodies for their protection (right of claim). 4. The evaluative function allows the law to act as a criterion for the legitimacy or illegality of someone's decisions and actions. If a person acts lawfully, then the state and society should not make claims against him. The person is recognized as acting responsibly. This positive liability excludes negative legal liability. Consequently, the right provides freedom of action to its owner, and also, being the legal basis for decisions (actions), protects a person from the adverse social consequences of their adoption (commission). A special role in the implementation of the evaluation function is played by protective and incentive norms, which generally contain a negative or positive assessment of certain possible actions. In the process of applying these norms, the normative assessment of an act is specified, an individual measure of legal responsibility or encouragement is determined (for example, punishment by a court verdict, awarding an order by decree of the President). Chapter 17. Law in the system of social regulation 1. Social regulation. The concept, functions and types of social norms In the most general sense, social regulation is understood as a process immanent in society and determining the social order. A specific social order is established as a result of the action of a variety of factors. Among them are the following. 1. The so-called "spontaneous" regulators as a direct manifestation of the natural laws of nature and society. The factors of spontaneous regulation are of a natural nature and can be expressed in the form of specific events of a general social scale, economic phenomena, phenomena of mass behavior, etc. These are, for example, an increase in life expectancy of people, massive seasonal diseases, demographic processes, population migration, inflationary expectations and etc. In their quest for order, society and the state seek to take these factors under their control, but this is far from always possible. Sometimes their influence is not reflected at all by the public consciousness or is reflected inadequately. 2. Social norms as regulators associated with the will and consciousness of people. 3. Acts of individual regulation, acting as a targeted, targeted impact of subjects on each other. These factors can play both a stabilizing and a destabilizing role in society. True, in the legal literature it is generally accepted that the stabilization, streamlining of social relations are ensured by the action of social norms and acts of individual regulation, and the action of spontaneous regulators acts as a factor of destabilizing influence. However, if the criterion of sustainable functioning of society is taken as the basis for the assessment, then all regulatory factors can have both a positive and a negative impact. At the same time, the functional characteristic of stabilization, streamlining of social relations should be attributed primarily to social norms. To understand the nature of the norms, grounds and rules of social regulation in society, it is necessary to distinguish between two meanings of the term "norm". First, the norm is the natural state of some object (process, relationship, system, etc.), constituted by its nature - the natural norm. Secondly, the norm is a guiding principle, a rule of conduct associated with the consciousness and will of people, arising in the process of cultural development and social organization of society - a social norm. The norms that really operate in people's lives cannot be unambiguously attributed to natural or social norms. So, natural norms can be translated into a system of technical rules (rules for working with technical or natural objects), become the basis for social regulation (for example, setting a period for recognizing paternity after the death of a spouse), and social norms can form the nature of an object, its qualitative state. Thus, depending on the ratio of natural normativity and social regulation, at least four groups of normative regulators operating in society can be distinguished. 1. Natural norms that exist in the form of formulated knowledge about the normal, natural state of an object, determined by its nature. Such norms are formed, for example, by science. 2. Rules for working with technical and natural objects developed on the basis of knowledge of natural norms. Such rules are called technical norms. 3. Rules of conduct based on natural norms or emerging in connection with their action. This includes most social norms. 4. Rules of conduct, the content of which is determined not so much by natural normativity as by the goals and objectives facing society, or by the needs of its particular sphere. These are some legal procedural rules, rituals, etc. When discussing the role of law in the system of social normative regulation, the norms of the third and fourth groups are important; in the literature, it is customary to qualify them as social norms. They do not just exist and operate in society, but regulate social relations, people's behavior, normalize the life of society. Social norms have the following characteristics: 1. They are general rules. The foregoing means that social norms establish the rules of behavior in society, that is, they determine what the behavior of subjects can or should be from the point of view of the interests of society. At the same time, social norms operate continuously in time, have multiple actions and are addressed to an indefinite circle of people (they do not have a specific addressee). 2. These norms arise in connection with the volitional, conscious activity of people. Some social norms are created in the process of targeted activity, others arise in repeatedly repeated acts of behavior, are not separated from the behavior itself and act as its samples and stereotypes, others are formed in the form of principles that are fixed in the public consciousness, etc. In other words, the analyzed norms correlate differently with the will and consciousness of people, but always arise in connection with them. 3. These norms regulate the forms of social interaction between people, i.e., they are aimed at regulating social relations and behavior in society. 4. They arise in the process of historical development (as its factor and result) and the functioning of society. Social norms, being an element of society, reflect the processes of its development, influence their pace and nature, in a word, they have their place in the history of society, their historical destiny. In addition, they stabilize society, which means that they are included in the processes of its functioning, they are both a product and a regulator of these processes. 5. These norms correspond to the type of culture and the nature of the social organization of society. According to M. Weber, it is culture that allows people to give meaning to the world, to create a basis for judging the interaction of people. Culture is expressed primarily in the content of social norms. From this point of view, it is not difficult to notice the differences in social norms in societies belonging to different cultural traditions, for example, European and Asian. It can be said that the representation of cultural differences in norms is no less distinct than in religious and philosophical teachings, value systems, etc. However, there are differences in the social regulation of the life of societies belonging to the same cultural tradition, although not so fundamental, related to individual the historical fate of a particular people. The nature of the organization of society to a greater extent affects the significance of one or another type of norms in society, on the connections of norms in the social normative system. So, in non-state-organized societies, customs and traditions dominate, and in states - morality and law. Thus, social norms are general rules related to the will and consciousness of people for regulating the form of their social interaction that arise in the process of historical development and the functioning of society, corresponding to the type of culture and the nature of its organization. From the above definition, it can be seen that in the legal literature, social norms are mainly considered as regulators of social relations. But more generally, their role is not limited to this function. Based on the foregoing, at least three functions of social norms can be named. Regulatory. These norms establish the rules of behavior in society, regulate social interaction. By regulating the life of society, they ensure the stability of its functioning, the maintenance of social processes in the required state, and the orderliness of social relations. In a word, social norms support a certain systemic nature of society, the conditions for its existence as a single organism. Estimated. Social norms act in public practice as criteria for attitudes towards certain actions, the basis for assessing the socially significant behavior of specific subjects (moral - immoral, lawful - unlawful). Translational. It can be said that the achievements of mankind in the organization of social life, the culture of relations created by generations, the experience (including negative) of the social structure are concentrated in social norms. In the form of social norms, this experience, culture is not only preserved, but also "transmitted" into the future, passed on to the next generations (through education, upbringing, enlightenment, etc.). The analyzed norms have different content, depending on the nature of the relations they regulate. In addition, different social norms can arise in different ways and on different basis. Some norms, being initially directly included in activity, are not distinguished from behavior and are its element. Established in practice, patterns of such behavior, receiving public awareness, assessment, can be transformed into formulated rules, or they can be preserved in the form of habits and stereotypes. Other norms are formed on the basis of ideas dominating in the public mind about the foundations and principles of social organization. The third are formed as the most expedient, optimal rules for a given society (for example, procedural rules). In this regard, both for theory and practice, the classification of social norms is of no small importance. It is possible to classify social norms according to various criteria, but the most common is their systematization on the basis of the scope and mechanism (regulatory features). According to the spheres of action, economic, political, religious, environmental, etc. norms are distinguished. The boundaries between them are drawn depending on the sphere of society in which they operate, on the nature of social relations, that is, the subject of regulation. According to the mechanism (regulatory features), it is customary to single out morality, law, customs and corporate norms. When talking about the mechanism, the regulatory specifics of the norms, they use the following main comparison criteria: - the process of forming norms; - forms of fixation (existence); - the nature of the regulatory impact; - ways and methods of providing. With this approach, the specificity of the norms manifests itself quite clearly. This is achieved by the systematic use of criteria: some norms may not differ clearly enough in one or two criteria, but they are always unambiguously separated by the sum of all four characteristics. 2. Law in the system of social norms Law regulates social relations in interaction with other norms, as an element of the system of social regulatory regulation. In this case, the system is considered as the interaction of the types of social norms identified on the basis of their regulatory specifics. This approach is preferable for the purposes of legal research and the needs of legal practice. Identification of the place and role of legal norms in the system of social normative regulation means in this case the correlation of legal and other social norms identified on the basis indicated. Law and morality. Being types of social norms, law and morality have common features that are inherent in all social norms: general rules that arise in connection with the will and consciousness of people, corresponding to the type of culture and the nature of social organization, etc. However, according to the named criteria, they fundamentally differ . Legal norms arise in the process of legal (primarily judicial) and legislative practice, the functioning of the relevant institutions of society and the state. It is in these processes that the ideas of law and legal representations that dominate in society are translated into the form of legal rules, norms of general action. Thus, legal norms are institutional, that is, they are clearly separated from legal consciousness and operate within the framework of social institutions. Morality is formed in the spiritual sphere of the life of society, it is not institutionalized, that is, it is not connected with the structural organization of society and is inseparable from public consciousness. Moral norms are based on the ideas about good and evil, honor, dignity, decency, etc., which are developed in the minds of society, which are developed by philosophy, religion, art in the process of ethical understanding of the world. When considering the forms of fixing legal and moral norms, various forms of their existence attract attention. Legal norms as institutional regulators are enshrined in strictly defined documentary forms (regulations, court decisions, regulatory agreements, etc.). The methods of fixing them must meet strictly established requirements in terms of the position and nature of the texts and their attributes. The range of subjects that form legal texts containing the rules of law (judicial authorities, legislative bodies, subjects of contractual relations, etc.) is also quite specific. Of course, various kinds of statements claiming the status of legal ones can also be contained in other texts - philosophical, scientific, literary. However, regardless of their cultural and social significance, influence on public consciousness and other factors, they do not have a legal status. Moral norms are contained in the public (mass) consciousness and exist in the form of principles, concepts, ideas, assessments, etc. Accordingly, there are no special requirements for their form, texts about morality. It is important to emphasize here that such texts are created precisely "about" morality, and do not contain moral norms, because the latter, by their nature, may not have textual consolidation, documentary character. The regulatory impact of law on social relations is carried out through a special mechanism of legal regulation, which ensures the translation of general rules into specific legal rights and obligations of subjects. These rights and obligations are quite clearly defined in terms of possible and proper actions, that is, specific options for the behavior of subjects. In contrast, moral norms are expressed in an impersonal duty and act through the formation of internal personality regulators: values, motives, attitudes, etc. In other words, the essence of the action of moral norms is the formation of general principles, internal beliefs and attitudes etc.). This means that the regulatory impact of moral norms, unlike legal norms, does not have pre-established ways of behavioral implementation. The specifics of the ways and methods of ensuring legal norms are traditionally seen in their connection with state coercion, the functioning of special institutions of the state and society. At the same time, state coercion is actualized both as a reality, i.e., the application of measures of an imperious nature, and as an opportunity, i.e., a threat of such application. It is important to emphasize that state coercion is a way to ensure legal norms, and not just an arbitrariness of power, since it is carried out only by special subjects and within the framework of procedures established by law. Morality does not have such special mechanisms and procedures, but is provided by the influence of public opinion, a mass example, presented in the form of relevant beliefs, values, concepts of justice, duty, honor, conscience, etc. Hegel believed that public opinion contains the principle of justice " in the form of human common sense." The interaction of law and morality is rather complicated. Of course, in a modern civilized society, law is supported by public consciousness, following the law is one of its moral values. Moreover, it is customary to talk about universal human values (life, freedom, equality, etc.), which are both enshrined as moral principles and presented in international and national legal acts as human rights. Therefore, it can be argued that these values are constitutive of both the moral and the legal system, at least in the countries of the European cultural tradition. At the same time, in terms of content, moral norms in society are far from unambiguous. This is due to the existence of the so-called group morality, i.e., a system of moral values and norms of any social group, stratum, etc., which may not completely coincide with public morality. So, we are talking about the anti-social morality of the criminal strata of society, where there is not just immoral, illegal behavior of specific subjects, but a group morality of a special type that comes into conflict with public morality. More complex is the conflict of legal and moral norms in societies that are in a state of increased social dynamics and are undergoing various kinds of reforms. In these cases, the partial destruction of public morality and the legal system of society (depending on the degree of cardinality of the ongoing reforms), associated with a change in their type, is inevitable. However, the transition to a new morality is carried out, as a rule, more slowly than the modernization of legal institutions and legal structures. In other words, a certain “historical desynchronization” arises between legal and moral norms, which inevitably gives rise to their collisions. True, in comparison with asocial group morality, they are less deep, but on the other hand, they are more ambitious. An example of such a collision is the current situation with private property in Russia. Legislative consolidation, the formation of the institution of private property and everything related to the existence of private law, is actually not accepted by certain sections of Russian society, brought up on the values of collectivist morality and continuing to be guided by its priorities. The regulatory interaction between law and morality is quite clearly reflected in legal texts. So, in legislative normative acts, evaluative concepts of a moral nature (misbehavior, cynicism, honor, etc.) are often used. This indicates that, on the one hand, moral norms can serve as grounds for legal assessment, and on the other hand, a violation of the moral principles of society is in some cases sufficient for the onset of legal consequences (sanctions). Thus, we can talk about the regulatory interaction of morality and law. In general, we can assume that in the process of social development there is a tendency to harmonize the mechanisms of interaction between law and morality, which is primarily related to the nature of culture and the degree of civilization of each particular society. Law and customCustoms are general rules that arise as a result of the constant reproduction of specific patterns of behavior and activity and, due to the duration of their existence, have become a habit of people. Customs are based on patterns of specific behavior, practical activity, and therefore they are difficult to separate from the behavior and activity itself. Hence the high level of detail in their prescriptions, which are, in fact, a fairly detailed description of the behavior itself. A behavioral pattern as such is not yet a rule of conduct, since the subject always retains the possibility of choosing one of several similar patterns in accordance with his interests, goals, and objectives. Actually, a custom can be considered formed into a social norm when, due to the duration of following a specific pattern of behavior, it becomes a behavioral stereotype (habit) of people, a behavioral tradition of communities, that is, a norm of behavior. In society, the continuity with behavioral and activity practices determines the existence of an exceptional variety of customs. Different ethnic groups, social groups, communities have their own customs. Customs also differ depending on the regions, since they reflect all the originality of people's life activities, determined by the specifics of life in various conditions. Consequently, the content of a custom is the pattern of behavior itself, and the form of its fixation is a habit, a behavioral tradition. Hence the specifics of the regulatory impact of conventional norms. Unlike law or morality, they do not imply the coordination of behavior with prescribed requirements, but the reproduction of the behavior itself in its established variants. Finally, the existence of a custom in the form of a habit means the absence of special mechanisms to ensure it, the absence of the need for certain coercion, since following the habit is ensured by the very fact of its existence, that is, naturally. Historically, customs are among the earliest social norms. In the period of the formation of the first civilizations, the formation of ancient states, customs begin to attach obligatory significance to customs. Clothed in a written form, systematized in a certain sense, the codes of custom are elevated to the rank of the laws of the state (the laws of Manu, the laws of Hammurabi, etc.) and become the first sources of law. Normative systems of modern societies do not actually know such a transition of customs into legal norms. Today, as a rule, they talk about the interaction of law and customs, which is considered mainly as a "relation" of legal norms to the customs existing in society. This "attitude" comes down to three main options. 1. Legal norms support customs that are useful from the point of view of society and the state, create conditions for their implementation. 2. Legal norms can serve to oust customs that are harmful from the point of view of society. 3. Legal norms are indifferent to current customs. Most of these customs are associated mainly with interpersonal relationships, everyday behavior of people. From the interaction of law and custom, it is necessary to distinguish legal custom as a source (form) of law, which has retained some significance at the present time. In the interaction of law and custom, the ordinary norm itself has no legal significance, but the actions taken in the implementation of its requirements are significant. In legal custom, legal significance is attached to the customary norm through its appropriate authorization. In other words, in this case, the custom acquires legal status without its textual formulation in a legal document. As an example, Art. 134, 135 of the Merchant Shipping Code, Art. 5 of the Civil Code of the Russian Federation, which sanctions business practices. Law and corporate regulationsCorporate norms are usually understood as the rules of conduct created in organized communities, applicable to its members and aimed at ensuring the organization and functioning of this community. The most common example of corporate norms are the norms of public organizations (trade unions, political parties, clubs of various kinds, etc.). Corporate standards are quite specific. So, they are created in the process of organization and activity of a community of people; apply to members of this community; are fixed in the relevant documents (charter, code, etc.); ensured by the provided organizational measures. In terms of formal features, corporate norms are similar to legal ones: they are textually fixed in the relevant documents, adopted according to a certain procedure, and systematized. However, this is where the similarity actually ends, because the named norms do not have the universally binding nature of law, they are not provided by state coercion. Corporate norms are of a different nature than law. The subject of their regulation are relations that are not regulated legally (due to the impossibility or inappropriateness of such regulation). They "belong" to the structural units of civil society and reflect the specific nature of the latter. In connection with the foregoing, it is important to distinguish corporate norms from legal ones contained in local regulations. The norms contained in local regulations, although they are valid only within a particular organization, are legal, since they give rise to rights and obligations provided by legal mechanisms. In other words, in case of their violation, there is an opportunity to contact the competent law enforcement agencies. So, in case of violation of the provisions of the constituent documents of a joint-stock company, for example, the procedure for distributing profits, the interested entity may appeal the decision in court. And the adoption of a decision in violation of the charter of a political party is not subject to appeal in court. So, acting in the system of social normative regulation, legal norms are only one of the elements of this system. In the conditions of a legal society, a democratic state, the harmonious interaction of law with other social norms is a necessary condition for its effectiveness. Chapter 18. Legal regulation and its mechanism 1. The concept of legal regulation Human society is characterized by varying degrees of organization, orderliness. This is due to the need to reconcile the needs, interests of the individual and the community of people (large or small social groups). In order to achieve such coordination, social regulation is carried out, that is, a targeted impact on people's behavior. Regulation can be both external to a person (someone influences him in some way), and internal (self-regulation). Throughout its development, society has developed a diverse system of means and methods of regulating people's behavior. The means answer the question of how people's behavior is regulated, and the methods answer the question of how this purposeful influence is carried out. The means of social regulation include, first of all, social norms: legal (legal), moral, corporate, customs, etc. But the norm, although the main one, is far from the only means of influencing people's behavior: the means of regulation are also individual prescriptions, executive orders, measures physical, mental, organizational coercion, etc. In the system of social regulation, the most important role belongs to legal regulation, which in the narrow sense refers to the impact of the rules of law (the system of legal norms), other special legal means on people's behavior and on social relations in order to streamline and progressively develop them. A lawyer must understand legal regulation as a versatile impact on social relations of all legal phenomena, including legal ideas, principles of the legal life of society that are not embodied in legal forms (laws, regulations, decisions of the judiciary, etc.). But in order to solve their professional tasks, a lawyer must first of all understand the role and significance of legal regulation as a set of means and ways of implementing positive law. Positive law has properties and mechanisms that ensure its implementation in the life of society. Normativeness, general obligatoriness, formal certainty, provision with the power of state-legal coercion allow us to transfer legal norms from the sphere of due to the sphere of being, into the everyday practical life of a person and society. The study of legal phenomena, subject to practical tasks, aims to prepare future lawyers to understand the regulatory role of laws and other regulations, individual decisions, and other legal means in their relationship and interaction. Based on these problems, we can formulate the following definition. Legal regulation is a purposeful impact on people's behavior and social relations with the help of legal (legal) means. It follows from the definition that only such an impact can be called regulation, in which sufficiently clearly defined goals are set. For example, in order to streamline the use of land, ensure its safety, and improve the efficiency of land use, a law on land is issued. And the impact of the norms of land law, as a result of which the set goals are realized, can be called legal regulation. If, under the influence of a legislative act or its norms, consequences occur that are not provided for by law, and in some situations contradict the goals of the legislator, then such an impact cannot be considered legal regulation. Thus, under the influence of land legislation, the price of land plots increased, and the number of transactions regarding land of a speculative nature, made for the sake of profit, unproductive use of land, increased. The negative impact of the law on land on social relations cannot be called legal regulation, because this was not part of the goals of the legislator and does not correspond to the goals of law - to streamline the life of society, to ensure a fair, reasonable use of such a value, which is land. It is impossible to consider as legal regulation the impact carried out by non-legal means. Thus, the impact on the consciousness and behavior of people through the media, through propaganda, agitation, moral and legal education and training cannot be attributed to legal regulation as a special legal organizing activity. Of course, in real life, the spiritual, ideological, psychological impact of law is interconnected, combined with special legal legal regulation. The impact on social relations, on people's behavior by special legal means and methods, in turn, has an impact on the spiritual, moral, ideological aspects of human life. The identification of legal regulation as a purposeful, effective, normative and organizational activity with the help of specific legal means and methods makes sense in terms of training legal professionals. It will allow future lawyers to get acquainted in detail with the tools of their professional activities. 2. Subject of legal regulation Law should not and cannot regulate all social relations, all social ties of members of society. Therefore, at each specific historical stage of social development, the scope of legal regulation should be accurately defined. In those conditions when the scope of legal regulation is narrowed, when the possibilities of law are not used to streamline social relations, a threat of arbitrariness, chaos, unpredictability arises in society in those areas of human relations that can and should be streamlined with the help of law. And when the sphere of legal regulation is unjustifiably expanded, especially due to centralized state-imperious influence, conditions are created for strengthening totalitarian regimes, the regulation of people's behavior, leading to social passivity, lack of initiative among members of society. The scope of legal regulation should include those relations that have the following characteristics. Firstly, these are relations in which both the individual interests of the members of society and the general social interests are reflected. Secondly, in these relations the mutual interests of their participants are realized, each of which goes to some kind of infringement of his interests in order to satisfy the interests of the other. Thirdly, these relations are built on the basis of agreement to comply with certain rules, recognition of the binding nature of these rules. Fourthly, these relations require the observance of rules, the binding nature of which is backed up by a sufficiently effective force. The history of the legal life of society has shown that the sphere of legal regulation includes three groups of social relations that meet the listed criteria. The first group consists of the relations of people in the exchange of values (both tangible and intangible). Here, the possibility and necessity of legal regulation of property relations is most clearly manifested, because both the whole society and each individual person are interested in a mutually acceptable exchange of property. These relations are built on the basis of generally recognized rules (for example, recognition of the expression of the value of property in monetary terms); the obligatory recognition of the rules is ensured by the effective force of the special apparatus of legal coercion. The second group is formed by relations on the imperious management of society. Both man and society are interested in the management of social processes. Management is carried out for the sake of satisfying both individual and general social interests and must be implemented according to strict rules, provided by the power of coercion. Naturally, the sphere of legal regulation includes state management of social processes. The third group includes relations to ensure the rule of law, which are designed to ensure the normal flow of the processes of exchange of values and management processes in society. These are relations arising from the violation of the rules governing the behavior of people in the two indicated areas. Public relations included in these groups will be the subject of legal regulation. These are social relations, which by their nature can be subject to regulatory and organizational influence and, in specific historical conditions, require legal regulation. The nature and content of social relations, which are the subject of legal regulation, depend on the features, nature, methods and means of legal regulation. It is quite obvious that relations on the equivalent exchange of values, for example, property relations, require other legal means and methods of regulation than those used to regulate managerial relations. The nature, type of social relations that make up the subject of legal regulation determine the degree of intensity of legal regulation, i.e. the breadth of coverage by legal influence, the degree of binding legal prescriptions, the forms and methods of legal enforcement, the degree of detail of prescriptions, the tension of legal impact on social relations. 3. Methods, ways, types of legal regulation. Legal regimes The variety of social relations included in the scope of legal regulation gives rise to differences in the methods and means of legal influence. Comparison of the public relations allocated in 2 groups rather obviously testifies to distinctions between the relations of the first and relations of the second and third groups. If the first group includes relations between equal owners (owners) of values, for example, between the seller and the buyer in a contract of sale, then the second and third groups include relations between the ruling and the subject. This is also typical for management relations, for example, between a state body and a subordinate official, and for protection relations, law enforcement, in particular, between a court and an offender brought to legal responsibility. Depending on these differences in the theory of legal regulation, it is customary to distinguish two methods of legal influence. The method of decentralized regulation is based on the coordination of the goals and interests of the parties in a public relation and is used to regulate the relations of civil society entities that primarily satisfy their private interests, i.e., in the field of private law industries. The method of centralized, imperative regulation is based on the relationship of subordination between the participants in a public relationship. With its help, relations are regulated, where, as a rule, the general social interest is a priority. In a state-organized society, general social interests are expressed primarily by the state, which exercises centralized management of social processes, endowed with powerful universally significant powers. Therefore, centralized, imperative methods are used in public law branches (constitutional, administrative, criminal law). Ways of legal regulation are determined by the nature of the prescription, fixed in the rule of law, ways of influencing people's behavior. In the theory of law, it is customary to distinguish three main ways of legal regulation. The first way is to provide a participant in legal relations with subjective rights (authorization). It is expressed in the delegation of a set of permissions to an authorized person to perform certain actions (for example, the owner is allowed to own, use and dispose of his thing). The second way is an obligation as an order to perform some actions (for example, the owner of a residential building is obliged to pay taxes). The third way is a ban, that is, imposing an obligation to refrain from certain actions (for example, an employer is forbidden to involve minors in overtime work). The second and third methods have a certain similarity - both involve the assignment of duties, but if in one case the duties are positive, active, then in the other they are passive. All three ways are predetermined by the functions of law. As additional ways of legal influence, one can name the use of coercive measures (for example, the imposition of legal responsibility for a committed offense). This method is additional, firstly, because it is a type of obligation (legal responsibility can be considered as an obligation to undergo deprivation, retribution, punishment), and, secondly, this method ensures the proper execution of the rights granted, the fulfillment of the assigned duties, compliance with established restrictions. Additional methods include the preventive (preventive) impact of norms providing for the possibility of using legal coercion. In particular, the norms of the Criminal Code have a preventive effect on persons prone to committing crimes. This also includes the stimulating effect of the rule of law. In this way, incentive norms influence, i.e., norms that provide encouragement for active lawful behavior (for inventive, rationalization activity). With the methods of legal regulation (both basic and additional), non-legal ways of influencing the consciousness, will, and hence the behavior of people in society interact. For example, the rules of law, legal acts (normative and individual), other legal phenomena have an information impact. With their help, information is brought to the attention of people that they can use to their advantage. They inform people about what is possible and due in public life, about the consequences of legally significant behavior, and allow them to foresee the consequences of their own behavior and the behavior of other people in those areas of life that are covered by legal regulation. In the legal literature and in practice, there are two legal formulas, on the basis of which two types of legal regulation are distinguished. The first formula: everything is allowed, except for what is expressly prohibited in the law. A generally permissible type of legal regulation is built on this formula. According to this type, strictly and clearly formulated prohibitions are established in relations regulated by law. As a rule, the scope of these prohibitions is small, and the scope of permissions is not defined: everything that is not prohibited. For example, the law allows for members of society any means of multiplying material wealth, except for those expressly prohibited by law. This type of legal regulation promotes (or at least does not prevent) manifestations of initiative, activity, independence in solving life problems. It is typical for relations regulated by the branch of civil law. The second formula of legal regulation sounds differently: everything is prohibited, except for what is expressly permitted. The foregoing means that a participant in legal relations of this type can only perform actions that are expressly permitted by law, and all other actions are prohibited. This type of legal regulation is called permissive. It is inherent in those branches of law that are associated, for example, with public administration (administrative law). Here, the law specifies a precise, strictly limited scope of powers; everything that goes beyond the competence of the ruling subject is strictly prohibited. Of course, there are no branches of law built on only one type of legal regulation. Thus, elements of a permissive type are "interspersed" in civil law, and in administrative law one can find norms regulating management relations according to a generally permissive type. At the same time, it is quite obvious that the generally permissible type of legal regulation is associated with the enshrinement in the right of social freedom, with the right of a person to choose the means and methods for achieving the set goals. The permissive type of legal regulation follows from the need for a high and strict orderliness of social relations, consistent implementation of the principles of legality. The permissive type of legal regulation is the only one in the application of measures of legal responsibility and a number of other measures of state coercion. In the theory of law, the term "legal regime" enters into scientific and practical use. This term denotes the specifics of the legal regulation of a certain sphere of social relations using various legal means and methods. As a rule, various spheres of public relations require a different combination of ways, methods, types of legal regulation. The peculiarity of legal regimes is observed both within each industry and in the legal system as a whole. The legal regime may include all methods, methods, types, but in their various combinations, with the dominant role of some and the supporting role of others. Thus, within the branch of administrative law, the legal regime for regulating managerial relations in the army, paramilitary institutions and organizations differs significantly from the legal regulation of managerial relations in the field of public administration of higher education. If in the field of activity of paramilitary organizations the centralized, imperative method prevails, the assignment of duties is the prevailing method, and the permissive type is dominant, then in the field of public administration of higher education in modern conditions, a significant role is assigned to the decentralized method, the broad granting of rights to higher educational institutions with widespread introduction of a generally permissible type. The difference in the legal regimes of industries related to public and private law is quite obvious. The question of methods, methods, types, regimes of legal regulation has, along with theoretical, great practical significance. The choice of one or another form of legal regulation depends on the content of the regulated relations, as well as on a number of other conditions that, taken together, require the legislator to choose for these relations just such and not another way of their legal construction in order to make legal regulation the most effective, expedient, contributing to progress, the implementation of the humanistic ideals of a legal society. Russian jurist E.N. Trubetskoy wrote that when creating and developing law, two factors must be taken into account; on the one hand, the historical experience of the legal life of society, and on the other hand, the ideas of a reasonable impact on social processes, and then the most effective methods, methods, types, regimes of legal regulation will be selected. The outlined differentiation of legal activity into public law and private law, and hence certain orientations in professional training, in legal education and training, is connected with the methods, methods, types of legal regulation. For lawyers of a public legal orientation, as a rule, in their professional sense of justice, general social interests prevail over private, personal interests. Their activities are aimed at subordinating private and group interests to the national interest and the general social order. Private-law lawyers think and act in the interests of a sovereign individual; they see their professional goal in protecting a person's freedom from encroachments by state and other authorities. This differentiation of legal activity should be taken into account already in the preparation of future lawyers. 4. Stages of legal regulation Legal regulation is a process that continues over time. It presupposes the active activity of people, their collectives, both in the process of creating law and in the course of its implementation. The process of the impact of law on people's behavior and social relations begins with the realization of the need and the possibility of regulating some life situations with the help of law. In some settings, people act rightly even in the absence of, or contrary to, legal regulations in force. For example, in the conditions of a "commodity" hunger, a shortage of certain goods, people make purchase and sale transactions not according to the law, but according to traditional rules that provide for the right of the seller and buyer to determine the price of the goods themselves. Under the conditions of a totalitarian political regime, people, despite the threat of punitive legal sanctions against them, exercised their natural right to freedom of thought and expression. These and other examples testify to the regulatory role of law before it is fixed in the form of formally defined norms accepted and guaranteed by the state authorities. The regulatory impact of law most visibly and effectively begins with the publication of normative acts by the law-making bodies of the state. Establishment in the law, giving strict legal forms to the rules of law is the first stage of legal regulation, when its normative basis is created. At this stage, the norms introduced into the legal system regulate and direct the behavior of participants in public life by establishing their legal status. For the subject of law (individual or organization), a range of possible rights and obligations is outlined. The legal status of a citizen is determined primarily by constitutional legislation, as well as other regulatory legal acts. The legal status of organizations is mediated by regulations that establish their competence, i.e., the scope of rights and obligations. For example, Art. 152 of the Civil Code of the Russian Federation grants a citizen or organization the right to demand in court a refutation of information discrediting their honor, dignity or business reputation. This norm establishes the possibility of any member of society to apply for the protection of their honor, dignity, reputation in court. At the first stage, a general, non-personalized, non-individualized impact of law is carried out. The norms of law guide participants in legal life to achieve their goals, warn of the possibility of both positive and negative consequences of people's behavior in the field of legal regulation. In the norms of law, as it were, obstacles to the satisfaction of the legal interests of members of society are predicted and possible legal means of overcoming them are indicated. In addition, at the first stage, the informative possibilities of law are realized, there is an active influence on consciousness, will, and, therefore, on the active behavior of people in the field of legal regulation. At the second stage of legal regulation, individualization and concretization of rights and obligations take place. After the occurrence of circumstances stipulated by the norms, which are called legal facts, individualized relations arise, the participants of which have specific rights and obligations. Here, the participants in legal life are “endowed” with ways of behavior arising from the norms of law and the conditions of a particular legal situation, i.e., their rights and obligations are individualized. At this second stage, a particular person or organization, whose honor, dignity or reputation has been tarnished by some other member of society, arises in accordance with Art. 152 of the Civil Code of the Russian Federation, a specific right to go to court, and the judicial authority has an obligation to accept the statement of claim for consideration. The second stage is the stage of active work of the element of legal regulation, called the legal relationship. The third stage of legal regulation is characterized by the implementation, implementation of those rights and obligations of specific subjects that they have in a particular legal situation (in a specific legal relationship). Thus, the goal of legal protection of honor and dignity, business reputation of a citizen or organization will be achieved when, for example, discrediting information published in the media is refuted by a court decision, and the victim is compensated for moral damage and other losses. The stage of realization of rights and obligations can take a long time period, for example, in long-term legal relations (the state of marriage and family, labor relations), at this stage, the violated rights and interests of subjects are protected, obstacles to their achievement are removed, i.e., law enforcement is implemented. , law enforcement functions of law. In the scientific literature, the stages of legal regulation can also be distinguished on grounds other than ours. 5. Mechanism of legal regulation After answering the question of how law regulates social relations, it is logical to look for answers to the questions of how, by what means the law affects social relations, what is the mechanism of legal influence. In the theory of law, the mechanism of legal regulation is called the system of legal means by which legal regulation is carried out. The concept of the mechanism of legal regulation makes it possible to collect and systematize legal means of legal influence on social relations, to determine the place and role of a particular legal means in the legal life of society. The elements, components of the mechanism of legal regulation include: legal norms, normative legal acts, acts of official interpretation, legal facts, legal relations, acts of law enforcement, law enforcement acts, legal consciousness, legal regime. Each of these elements performs its regulatory functions, affects people's behavior and social relations in its own way. The norms of law act as a prescription and as a model, a model of behavior in legal relations. They serve as the initial, base of legal regulation, they indicate what is allowed and what is allowed, what are the consequences of compliance with or violation of the instructions recorded in them. The rule of law is the basis of the entire mechanism of legal regulation. All other elements of it are provided for by the rules of law, are sub-normative in nature. A normative legal act, as a document containing the rules of law, affects the behavior of people by establishing a legal regime for the regulation of one or another type of social relations. For example, the Civil Code defines the regime for regulating relations on the use of material goods (property), on establishing the legal status of participants in civil law relations. Acts of official interpretation - documents issued by specially authorized bodies (for example, the plenum of the Supreme Court of the Russian Federation) and aimed at clarifying the meaning of legal norms. Legal facts - life situations provided for by law, facts of real life, entailing legal consequences: the emergence, change and termination of legal relations. Legal relations are a means of translating the general patterns of behavior laid down in the rules of law into specific and individualized acts of behavior of members of society (subjects of law). Through legal relations, the realization of law is carried out, this is the main way of translating the prescriptions of the norms of law into acts of human behavior. Acts of the realization of law are the actions of subjects of law, participants in legal life to implement the prescriptions of the rules of law. In such actions (in a number of cases, linked to legal documents, such as contracts), the measures of possible or proper behavior expressed in rights and obligations are actually implemented. Acts of application of law are individualized authoritative prescriptions aimed at regulating social relations. These are acts (both actions and documents) of individualized legal regulation. The most striking example of an act of application of law is a court decision in a specific legal case. Legal consciousness and the regime of legality act as peculiar elements of the mechanism of legal regulation. The peculiarity of these elements lies in their intangibility. But intangibility does not prevent them from exerting an effective influence on the entire process of legal regulation. The effectiveness of all elements of the mechanism of legal regulation depends on the level of legal awareness and the reality of the regime of legality. Elements of the mechanism of legal regulation affect social relations not only specifically legally. For example, the norms of law, acts of legislation, court decisions have an informational, psychological, ideological impact on people's behavior and social relations. Under their influence, psychological attitudes, motives of people's behavior are formed. In reality, special legal means and methods of influencing people's behavior are combined in various combinations with non-legal ones. A detailed study of the issues of the mechanism of action of law is characteristic of the instrumental direction in jurisprudence, where law is considered as a tool for solving individual and group social problems. Analyzing a variety of legal forms and means of influencing people's behavior and social relations, one can find out which of them are the most optimal, effective in given conditions, what results can be achieved using certain legal means in any combination. The study of the mechanism of legal regulation "arms" the legislator with a "set" of tools - optimal legal means and legal mechanisms - for the effective solution of the problems facing at this stage of development of society. Knowledge of the mechanism of legal regulation with all its elements allows you to competently carry out law enforcement legal activities. Chapter 19 1. The concept of a legal norm, its features In modern legal literature, the rule of law is understood as a generally binding formally defined rule of conduct, established and provided by society and the state, fixed and published in official acts, aimed at regulating social relations by determining the rights and obligations of their participants. The following essential features of legal norms can be distinguished. 1. The rule of law is a measure of freedom of expression and behavior of a person. The understanding and assimilation of this moment by a particular individual depends both on internal factors (the state of his mind, type of character, level of culture) and on external circumstances (the degree of orderliness of social relations, the provision of the norm with authority, power). The greatest efficiency in the implementation of a legal norm is achieved when the goals of an individual and society coincide, a combination of universal and social-group, class interests in the conditions of stability of social relations. 2. This is a form of definition and consolidation of rights and obligations. The latter act as guidelines that indicate the range of freedom of action of subjects of law, because the real regulation of relations between people and their organizations is carried out precisely through the granting of rights to some and the imposition of duties on others. The provisional-binding nature is most clearly expressed in regulatory norms, it is less noticeable in specialized norms (declarative, definitive). Various subjects of legal relations usually have a set of rights and at the same time bear a large number of responsibilities. There can be no rights without duties and no duties without rights. This is one of the principles of construction and functioning of any legal system. 3. The rule of law is a rule of conduct of a generally binding nature, i.e. it: a) indicates how, in what direction, during what time, on what territory it is necessary for this or that subject to act; b) prescribes a correct course of action from the point of view of society and therefore obligatory for a particular individual; c) is of a general nature, acts as an equal, equal scale for everyone and everyone who finds himself in the sphere of its action. 4. This is a formally defined rule of conduct. The internal certainty of the norm is manifested in the content, scope of rights and obligations, clear indications of the consequences of its violation. External certainty lies in the fact that any norm is enshrined in an article, chapter, section of an official document - a legal act. 5. A rule of law is a rule of conduct guaranteed by the state. The possibility of state legal coercion in cases of violation of the rights of citizens, the rule of law is one of the important guarantees of the effectiveness of law. 6. It has the quality of consistency, which is manifested in the structural construction of the norm, in the specialization and cooperation of the norms of various branches and institutions of law. It should be borne in mind that the emergence of a rule of law and all its further "life" depend on a number of factors, the disclosure of which will make it possible to more accurately determine the place of the rule in the legal system, to understand the significance of regulatory regulation for the individual and society. First of all, it is necessary to see the natural conditionality of the legal norm. In a broad sense, normativity is a property of matter in general and social matter in particular. The polystructural and cyclical nature of the material world to some extent predetermines the dimensionality, normativity of social ties and relations, phenomena and processes, including legal ones. In this regard, the rule of law reflects a certain particle of the material and spiritual world in human existence (the biological aspect), as if establishing a measure of the development of nature, a measure of the correlation of being with feelings, the emotional mood of a person (the psychological aspect). Further, it must be remembered that the legal norm, being due to natural factors, is a purely social phenomenon (social aspect). The normative characteristic of those real phenomena and processes with which a person deals is the most essential feature of his social world. In general social terms, the legal norm acts as: a) a fair scale of people's behavior, ensured by public authority, social power and the prevailing ideas in society about what is proper and right; b) a typified imprint of recurring actual social relations; c) forms of expressing the interests of the majority. In the individual social plan, the rule of law is a means of protecting the interests, rights and freedoms of the individual and, at the same time, in necessary cases, a means of restricting freedom of behavior (a measure of freedom). Finally, it is necessary to take into account the fact that the legal norm is the result of the intellectual conscious activity of a person, whose mind and will are of decisive importance here (intellectual and ideological aspect). Therefore, the rule of law cannot be considered simply a particle of the world order of things or a cast of social relations. Its creation is always the most complex mental and activity process, in which the needs, interests of specific people and various social groups, colliding with each other, cause various kinds of contradictions (economic, political, ideological, religious). Awareness, study of these contradictions and attempts to resolve them, due to the natural desire to continue the human race, ultimately lead to the development of a legal norm as: a) a compromise, acceptable for a given time and society, a variant of regulation that ensures the normal life of people; b) generalized information about social reality; c) means of cognitive activity; d) a specific means of resolving contradictions (conflicts) between people. And one more thing. With the emergence of the state, the whole picture of normative social regulation in society changes. Gradually, an increasing number of groups, types of social relations are beginning to be regulated by legal norms issued by the state. In fact, in modern developed legal systems, all legal norms are somehow mediated by the state. In the socio-legal (state) aspect, the legal norm acts as: a) a formally defined mandatory rule of conduct, fixed and published in official documents (regulatory legal acts) and provided by the state; b) a social class regulator of social relations in those political systems where the power of a social class or stratum is legislated. Thus, the legal norm has natural historical origins, is socially conditioned and is a product of human activity. It reflects the correspondence between the measure of individual freedom and the freedom of society, acts as a model and regulator of social relations. Legal rules are those that: - have historically developed and survived to this day in the form of customs, traditions, precedents that do not contradict general humanistic ideals and are recognized by the state: - come directly from society (country), territorial entity and express the will of the entire population or its majority, i.e. norms adopted by popular vote (referendum) provided for by the constitution; - issued by the legitimate bodies of the state, elected or appointed in accordance with the constitution, and do not contradict international legal acts that enshrine natural human rights; - are enshrined in agreements concluded between subjects of law in accordance with the current legislation and generally recognized principles and norms of international law. 2. Types of legal norms Multifaceted social relations, a variety of recurring life situations and the ability of a person to reasonably respond to what is happening determine the fact that legal norms are quite diverse. To determine the common and distinctive features of these norms, to designate the place and functional role, it is necessary to classify them. The basis for classification can be very different. 1. According to the subjects of lawmaking, there are norms emanating from the state and directly from civil society. In the first case, these are the norms of bodies of representative state power, executive state power and judicial state power (in those countries where there is a precedent). In the second case, the norms are adopted directly by the population of a particular territorial entity (rural assembly, etc.) or by the population of the entire country (national referendum). So, on December 12, 1993, the Constitution of the Russian Federation was adopted by popular vote. 2. According to the social purpose and role in the legal system, the norms can be divided into: constituent (norms-principles), regulatory (norms - rules of conduct), protective (norms - guardians of order), security (rules-guarantees), declarative (rules-declarations ), definitive (norms-definitions), conflict (norms-arbitrators), operational (norms-tools). Constituent norms reflect the initial principles of the legal regulation of social relations, the legal status of a person, the limits of the state, fix the foundations of the socio-economic and socio-political system, the rights, freedoms and obligations of citizens, the fundamental ideas and parameters for building the legal system of society. They serve as standards that make it possible to establish the necessary correspondence between the goals and means of specific legal prescriptions and the objective laws of social development. These are constitutional norms and norms enshrined in the fundamentals of legislation, codes. For example, the rule enshrined in Art. 2 of the Constitution of the Russian Federation, states: "A person, his rights and freedoms are the highest value. Recognition, observance and protection of the rights and freedoms of man and citizen is the duty of the state." Regulatory norms are directly aimed at regulating the actual relations that arise between various subjects by granting them rights and imposing duties on them. Depending on the nature of subjective rights and obligations, there are three main types of regulatory norms: - authorizing (giving their addressees the right to take positive actions); - binding (containing the obligation to perform certain positive actions); - prohibiting (establishing a ban on the commission of actions and deeds that are defined by law as an offense). The peculiarity of regulatory norms is that they have a pronounced provisional-binding character. In particular, the provisions of art. 10 and 11 of the Law of the RSFSR on peasant (farm) economy of 1990 establish a detailed list of the rights and obligations of citizens who run a peasant economy. Protective norms fix the measures of state coercion that are applied for violation of legal prohibitions. They also determine the conditions and procedure for release from punishment. For example, in accordance with Part 1 of Art. 83 of the Criminal Code of the Russian Federation, the convicted person is subject to release from serving his sentence in connection with the expiration of the statute of limitations for the court's conviction. Both regulatory and protective norms are aimed at the implementation of the functions of law: regulatory (static and dynamic) and protective. They find expression for ways of regulation. Security norms contain prescriptions that guarantee the exercise of subjective rights and obligations in the process of legal regulation. Their social value depends on how effectively they contribute to the creation of mechanisms and structures for the smooth implementation of the law. These norms can be located in various normative acts related to each other. Thus, the right of the Bank of Russia to issue licenses for conducting operations in foreign currency, provided for in Art. 21 of the Law of the RSFSR on the Central Bank of the RSFSR, guaranteed by the norms of Art. 11-18, 35 of the Law of the RSFSR on banks and banking activities of 1990 Declarative norms usually include provisions of a program nature, define the tasks of legal regulation of certain types of social relations, and contain normative announcements. For example, in Part 2 of Art. 1 of the Constitution of the Russian Federation says: "The names of the Russian Federation and Russia are equivalent." Definitive norms formulate definitions of certain legal phenomena and categories (the concept of a crime in criminal law, transactions in civil law, etc.). Conflict rules are designed to eliminate the emerging contradictions between legal prescriptions. So, paragraph 5 of Art. XNUMX of the Civil Code of the Russian Federation states: "In the event of a conflict between a decree of the President of the Russian Federation or a resolution of the Government of the Russian Federation, this Code or another law, this Code or the relevant law shall apply." Operational rules set the dates for the entry into force of the normative act, its termination, etc. 3. According to the subject of legal regulation, the norms of constitutional, civil, criminal, administrative, labor and other branches of law are distinguished. Industry standards can be divided into substantive and procedural. The former are the rules for the conduct of subjects, the latter contain prescriptions that establish the procedure for applying these rules. 4. According to the method of legal regulation, imperative, dispositive, recommendatory norms are distinguished. Imperative norms have a purely strict, authoritative-categorical character, which does not allow deviations in regulated behavior. These are usually rules of administrative law. Dispositive norms are inherently autonomous in nature, allowing the parties (participants) of the relationship to agree on the volume, the process of exercising subjective rights and obligations, or to use a reserve rule in certain cases. They are implemented mainly in civil law relations. Recommendatory norms are usually addressed to non-state enterprises, they establish options for behavior that is desirable for the state. On the same basis, norms can be divided into positive, encouraging and punitive. 5. According to the scope, norms of general action, norms of limited action and local norms are singled out. The norms of general action apply to all citizens and function throughout the territory of the state. The norms of limited action have limits due to territorial, temporal, and subjective factors. These are the norms issued by the supreme authorities of the republics that are part of the Russian Federation, or the norms emanating from the representative or executive bodies of the territories, regions, etc. Local regulations apply within individual state, public or private entities. 6. Rules of law are also classified by time (permanent and temporary), by circle of persons (apply either to everyone who falls under their action, or to a clearly defined group of subjects: military personnel, railway workers, etc.). 3. The structure of the legal norm Being a "cell" of law, the norm at the same time is a complex formation that has its own structure. Firstly, the named structure is an ideal logical construction designed to regulate the relationship between people. This is a kind of model of possible behavior, formed in the course of social development, reflecting the desire of people to create universal, long-term "tools" for cognition and development of legal reality. It is traditionally considered that the rule of law consists of three elements: hypotheses, dispositions and sanctions. The hypothesis points to specific life circumstances (conditions), in the presence or absence of which the norm is realized. Depending on the number of circumstances indicated in the norm, hypotheses are simple and complex. An alternative is a hypothesis that connects the actions of the norm with one of several circumstances listed in the article of the normative act. The disposition contains the very rule of conduct, according to which the participants in the legal relationship must act. According to the method of presentation, the disposition can be direct, alternative and blanket. The alternative disposition enables the participants in the legal relationship to vary their behavior within the limits established by the norm. Blanket disposition contains a rule of conduct in the most general form, referring the subject of implementation to other legal norms. The sanction indicates the adverse consequences arising from the violation of the disposition of the legal norm. According to the degree of certainty, sanctions are divided into absolutely certain (exactly specified amount of the fine), relatively certain (imprisonment for a term of three to ten years), alternative (imprisonment for a term of up to three years, or corrective labor for a term of up to one year, or a fine ...). Secondly, the structure of a legal norm is the objectified result of the reflection of a certain social relation in the norm. The actual social relation, subject to legal formalization, objectively requires that the structure of the legal norm logically correspond to its own internal structure. It quite rigidly predetermines the nature of the connection and the number of structural elements of the norm. The determining influence on the structure is exerted by the type, genus, kind, side of social relations. One should also keep in mind the complexity of the logical connections between the subjects of the relationship, the quantitative characteristics of the subjects and objects, the prevalence and frequency of the social relationship, and the possible level of its generalization. With a certain convention, it can be argued that this or that legal norm contains as many structural logical elements as this social relation requires. The structure of the property relations of individuals determines the presence in the legal norm of such elements as a hypothesis, a disposition (one or two), a sanction, a measure of encouragement, an indication of each of the subjects. Most of the criminal relations correspond to the two-term structure of the norm. For mass, political relations that require constitutional formalization, it is often enough to state in the right of their existence. In the structure of many constitutional norms, one element usually manifests itself. Thus, the real structure of a legal norm enshrined in a normative act is derived from the structure of the corresponding social relation of a certain type and acts as a natural reality of the legal system of a particular society. Thirdly, the structure of the legal norm should be considered as the unity of the ideal and real structure. The ideal structure of the norm expresses its primary, initial connections in the system of objective law. This is a kind of set of logically interrelated elements, due to the specifics of law formation and the structure of law as a whole. The ideal structure, which initially has a potential value, in the process of its development turns into a real one, but, changing, is preserved in its result. This is due to the fact that it, like the real structure of the norm, includes as many elements as are logically necessary to regulate a certain type of social relations in the direction necessary for the legislator. The real structure of the rule of law reflects, to a certain extent, the result of the legal mediation of social relations. It is a set of those selected elements of the potential logical structure, which are sufficient for a specific social-powerful or state-powerful decree to come to life within the framework of an integral legal organism. The number of elements of the real structure is predetermined by the structure of the actual social relationship and the features of the relationship and interaction of legal norms in the system of law. Fourthly, the structure of a legal norm can be represented as a system of dialectically interconnected elements that interact within its framework. These elements can be interchanged, turn into each other, unite and act as a unity. The nature, types of interaction are determined by the established social relations, as well as the specific features of the elements themselves. At the same time, of course, one should also take into account the volitional influence of the legislator, who forms the direction of the structural elements, connects their action with any legal facts. The literature describes cases of the manifestation of various properties of the structural elements of the norm, depending on changes in actual circumstances, their features as system-structural phenomena. As an example, we can cite the scheme designed by M.M. Agarkov: hypothesis + disposition + hypothesis (violation of the previous disposition) + disposition (change in the content of the first disposition) + sanction (forced implementation of the first disposition) + sanction (forced implementation of the second disposition). I.S. Samoshchenko, O.E. Leist and A.S. Pigolkin. They noted that that part of the criminal norms, which is a disposition for citizens (a ban on committing socially dangerous acts), is at the same time a hypothesis for the state and state bodies considering cases of crimes committed. In this regard, the position of K. Saito is also interesting. He writes that the criminal law norm as a norm of behavior is addressed to all individuals before the commission of a criminal act, as a norm of justice - to the participants in the process after the commission of a criminal act, and as a penitentiary norm - to the punished. In all these cases, the property of objective selectivity of the actual social relation and the direction of the structure of the legal norm, i.e., the possible reaction laid down in it by the legislator to changed actual circumstances, are of decisive importance. Due to the fact that law has the property of consistency, close interaction between the structures of various legal norms is ensured. Moreover, the links between them can be simple (single-line) and complex (two-way, closed, etc.). The interaction of structures can take the form of linkage, intersection of the planes of action, or partial (sometimes complete) coincidence of the spheres of functioning. Examples here are the norms of the constitutional and other branches of law, the norms enshrined in the general and special parts of the Civil and Criminal Codes. The mechanism of formation of the structure of the legal norm can be represented as follows. The legislator, intending to regulate this or that social relationship, "trying on" to it a priori the logical model of the norm, developed on the basis of human practice, the achievements of science, and the experience of legal regulation. At the same time, he seeks to direct the development of social relations in the direction necessary for him, tries to establish its temporal, spatial characteristics, and obtain the greatest efficiency from its legal regulation. However, the social relation corresponds to the ideal model (the logical structure of the norm) only in principle. It makes adjustments to the model, selects in the potential logical structure of the norm those elements and connections between them that correspond to its own elements and connections. In other words, the legislator is forced to simultaneously adapt the logical structure to the corresponding type of social relations, and take into account the need for internal and external logical consistency of legal norms, using all legal means, properties of law as a system. The result is the real structure of the norm, which is always included in its logical structure and structures of a higher order (institution, industry, law as a whole). The structure itself is an expression of stability in various processes. It is also relatively independent of changes in the elements as a whole. This property allows the rule of law to retain the status of a single and integral state-imperious decree in all the cases mentioned. Practice confirms that the allocation of one or another structural element of the norm occurs only when it functions independently in the form of a special rule. Moreover, the quality of an independent rule is retained by both "truncated norms" and atypical regulations. Thus, the structure of a legal norm is its logically consistent internal structure, conditioned by actual social relations, characterized by the presence of interconnected and interacting elements, actually expressed in legal acts. 4. External expression of legal norms The real effect of legal norms is directly related to their external expression, fixing in official documents. The most important and most common of these is the normative legal act. It is characterized by the following features: a) is issued by the competent authorities of the state or, in accordance with the constitution, is adopted directly by the population through a referendum; b) contains rules of law, establishes, cancels or changes them; c) has legal force, is protected and provided by the state; d) has the form of a written document with an established structure and necessary attributes; e) is legitimate. A normative legal act is a necessary form of relationship between the legislator and the executor, between abstract models of legal regulation and specific subjects of law. The written form, clarity of presentation make it accessible and understandable to citizens, legitimacy and stability create the basis for ensuring law and order in the country. Normative legal acts are subdivided according to the subjects of lawmaking into acts of representative authorities (laws, resolutions, decisions) and executive authorities (decrees, resolutions, orders); by legal force - into legislative and by-laws; according to the degree of systematization - into simple and codified; by scope - federal, acts of subjects of the federation, acts of local governments, local regulations; by time - permanent and temporary. Normative acts as an external form of expression of legal norms also have a structure (sections, chapters, articles, paragraphs, paragraphs). The main structural element of a normative act is an article. The ratio of the rule of law and the article of the law is polyvariant, depending, as already noted, on the structure of actual social relations, the level of development of the industry, institution or the entire legal system, the intention of the legislator, the degree of development of legal technique and technology. In the first variant, the rule of law and the article of the law coincide. Given the unity of the potential and real structure of the legal norm, we find in the article either all three elements (hypothesis, disposition and sanction), or only one (two), and the rest must be identified in a logical way. But one way or another, in terms of volume and content, the state-imperious decree (norm) and the normative prescription (article of the act) coincide. Such a ratio of the rule of law and the article of the law is typical, and the legislator should constantly strive for this. The second option is the inclusion of several norms in one article of the law. For example, Art. 12 of the Law of the RSFSR on the peasant (farm) economy, which regulates the procedure for paying for land, contains five points, each of which is an independent norm. The third option involves the location of one norm in several articles. Yes, Art. 14 of the Family Code of the Russian Federation contains the conditions for marriage (hypothesis), art. 10, II establish the place and procedure for marriage (disposition), and Art. 27, 30, determine the grounds and consequences of declaring a marriage invalid (sanction). Chapter 20. Forms (sources) of law. Lawmaking 1. The concept and types of forms (sources of law) The concept of "source of law" has existed for many centuries. For centuries it has been interpreted and applied by jurists of all countries. Based on the common meaning of the term "source", then in the field of law it should be understood as the force that creates the law. First of all, such a force is the power of the state, which responds to the needs of society, the development of social relations and makes appropriate legal decisions. Along with this source of law, one should also recognize the form of expression of the state will, the form in which the legal decision of the state is contained. With the help of form, law acquires its inalienable features and characteristics: universal obligatoriness, well-knownness, etc. This concept of a source has the meaning of a container in which legal norms are enclosed. Usually, four types of sources of law are named in theory: a normative act, a judicial precedent, an authorized custom, and a contract. In certain historical periods, legal consciousness, legal ideology, as well as the activities of lawyers were recognized as sources of law. The most ancient form of law is a legal custom, that is, a rule that has become a habit of the people and the observance of which is ensured by state coercion. A legal custom is recognized as a source of law when it consolidates long-established relations approved by the population. In slave-owning and feudal societies, customs were sanctioned by court decisions on individual facts. Now there is another way of sanctioning customs by the state - a reference to them in the text of laws. The essence of a judicial precedent is to give a normative character to a court decision in a particular case. Not the entire decision or sentence is binding on the courts, but only the "core" of the case, the essence of the legal position of the judge, on the basis of which the decision is made. This is what specialists in the Anglo-Saxon legal system call "ratio decidendi". From the precedent, norms of laws can gradually develop. In the recent past, precedent as a source of law was assessed only negatively in Soviet legal science, but recently the tone of critical statements has somewhat softened. Moreover, there are already proposals on the need to equate the judicial doctrine with the sources of law. It seems that what is proposed is possible, but this requires an independent court and appropriate legal training of judges, as well as the formation of their legal awareness in the direction in which their lawmaking will become possible. A normative act is the dominant source of law in all legal systems of the world. It has a number of undeniable advantages. 1. A normative act can be issued promptly, amended in any part of it, which makes it possible to respond relatively quickly to social processes. 2. Normative acts, as a rule, are systematized in a certain way, which makes it easy to search for the right document for application or implementation. 3. Normative acts make it possible to accurately fix the content of legal norms, which helps to pursue a unified policy, to prevent arbitrary interpretation and application of norms. 4. Normative acts are supported by the state, they are protected. In case of violation of the provisions of regulatory enactments, violators are prosecuted and punished on the basis of the law. All sources of law can be classified into two groups: normative legal acts (laws, decrees, resolutions, instructions, contracts) and other sources of non-normative law (legal customs, judicial precedents and decisions). In this case, normativity acts as a criterion for delimiting legal acts and means only that legal documents contain rules of law, general rules of conduct established by the state. Regulations: a) differentiated, since the mechanism of the state has a branched structure of bodies with certain law-making powers and a significant amount of other functions that are implemented through the issuance of legal acts; b) hierarchical (with the leading role of the constitution of the state), because this system is built on the basis of the different legal force of acts, as a result of which the lower sources of law are in a dependent position in relation to the higher ones and cannot contradict them; c) are specified in terms of the subject of regulation, the subjects of execution and realization of the right, indications of which are contained in the sources. As can be seen from the above, in any modern state, the sources of law (and, above all, laws, statutes of parliament) are streamlined, but at the same time they hardly constitute a strict system, especially acts of subordinate law-making, legal customs and precedents. Most likely, this is a set of normative and other legal acts that establish a certain legal regime. So, a normative act is an official document created by the competent authorities of the state and containing generally binding legal norms (rules of conduct). 2. Lawmaking Law-making is one of the important areas of work of any state. This is a specific, requiring special knowledge and skills, intellectual activity associated with the creation or change of legal norms existing in the state. According to the results of law-making work - laws and other normative acts - they judge the state as a whole, the degree of its democracy, civilization, culture. Human society has always needed accurate and perfect legal solutions, in such activities of state bodies, as a result of which the norms of law, rules of conduct for citizens and organizations are created. Such norms and rules were very lacking in Soviet society, however, this shortage was caused not by insufficient development of the theory and practice of law-making activity, but by other reasons far from science. Improving the quality of legal decisions, reducing to a minimum the number of inefficient normative acts is a constant task for the legislator. This explains the theoretical and practical significance of studying the problems associated with the process of creating legal norms. "Consumers" of laws are people, society, and hasty, ill-conceived legal decisions should not be allowed, because any mistake of the legislator entails unjustified material costs, violation of the interests of citizens. We can cite a considerable number of facts from Russian history, when our economy, social and spiritual spheres suffered from ill-conceived, scientifically unfounded and rough legal decisions. What, for example, was the recognition as "parasites" of persons engaged in creative or other individual activities, or the famous List No. 1 of categories of workers whose labor disputes were resolved by higher organizations, but not by the court! The world history of law is also not free from the mistakes of the legislator. Suffice it to cite the fact of a legislative prohibition in the United States during the "Great Depression" of the production and consumption of alcohol, which caused an increase in smuggling, the mafia and crime in general. One might get the impression that knowledge of the basics of lawmaking is useful only to those who carry it out - members of parliament, members of the government, etc. However, this is not the case, because the creation of legal norms is the lot of state bodies at any level - from the highest to the local ones. Therefore, lawyers, graduates of law schools should know the theory and practice of law-making work in all its subtleties. In exercising power, the state uses different methods and methods of leadership - operational management, justice, supervision and control, but these areas of the state's activities do not give rise to the rule of law, although they are carried out on its basis. It should be borne in mind that law-making is not a special function of the state, but a legal form, a legal "shell" of state activity. For example, Parliament approves the state budget. Considering it on its merits, analyzing all items of income and expenditure of the country, he completes the process by adopting a law on the state budget. Thus, the "act of law-making" has two meanings. This is the activity of the competent authorities of the state in issuing the rules of law and the result of this activity, expressed in the form of a legal document, law, etc. One of the most important characteristics of law-making is that it is a state activity, i.e., the activity of mainly state organs. They accept, create rules of law that are binding on those to whom they are addressed. But sometimes law is created by the authority of state bodies by public organizations (in the domestic legal system), directly as a result of the direct law-making of the people (at a veche in medieval Novgorod) or the court (in the Anglo-Saxon legal system). The meaning and significance of lawmaking is to choose such a variant of regulation, legal regulation, which would most fully meet the interests and goals of the people and the legislator, and contribute to the progress of society. This requires taking into account the patterns of development of society, favorable objective and subjective conditions for the adoption and application of the law, as well as the choice of the optimal legal form of the state decision (law, decree, resolution, bill, statute, regulation, etc.). The state conducts its legislative policy on the basis of studying the needs of society and understanding the trends of social development. The main impetus for the creation of a law or other legal act is a socially significant problem, an acute social situation, an unresolved issue that is important for a large number of people, for the state as a whole. The art of the legislator consists in, firstly, in time, and, secondly, precisely, with adequate legal means, to respond to the public “challenge”, to “remove” the acuteness of the situation. The history of law knows a large number of both successful legal decisions (the French Civil Code of 1804, which was in force for almost two centuries), and erroneous, hasty decisions (in 1927, Turkey borrowed the Swiss Civil Code, which, in particular, eliminated polygamy. The Muslim population of Turkey was not ready for this, which caused resistance from many sections of Turkish society). The main role in determining the time of adoption, content and form of a legal decision should belong to legal science. It is science that has such a scientific and cognitive toolkit that makes it possible to almost unmistakably identify the problems of social development and the legal means of solving them. Of course, the level of development of a state affects the content of the adopted laws. If for the United States the struggle for safety on highways, as well as for a clean environment, is relevant, then in Russia the protection of human rights, the fight against mafia and crime, questions of a federal structure, etc. are at the forefront. 3. Law-making (legislative) process and its stages In the theory of lawmaking, it is recognized that the process of creating law is not of a one-time nature, but is "stretched" in time. In this regard, there are, as a rule, two stages of the law-making (legislative) process. The first stage, the pre-project stage, consists in the fact that a need is revealed in society for the regulation of a social problem by the norms of law. The identification of such a need occurs spontaneously, only the degree of severity of the problem (question), its general significance and relevance matter. Assesses the need for legal regulation as a society, which through its institutions - leaders, the media, science - can influence the legislator, as well as the law-making bodies themselves, the state. The fact that the need for legal regulation is ripe can be said when the law is the most effective means, the predominant form of regulation in comparison with other social means of influence (economic, moral, etc.). For example, democratic reforms in the Republic of Lithuania required the legal consolidation of freedom of speech and the press. As a result, on February 18, 1990, the Press Law, art. 1 of which asserted freedom of expression and eliminated censorship, and in Art. 4 secured the right to receive information from state and public organizations. In this case, the legal form took precedence over other types of social influence in such important matters as political freedoms. The second stage of lawmaking is called the project stage, or the stage of making a lawmaking decision. Its peculiarity lies in the fact that, firstly, this work is carried out directly in the legislative body itself, and, secondly, at this stage, the actual "creativity of law" is carried out: legal norms are created, changed or canceled, intellectual work is carried out on the text bill. Moreover, the project stage can, in turn, be divided into several stages, successively replacing one another. The first stage: the introduction of a draft "law into the law-making body by the subject of the law-making initiative. Most often, the initiator of the adoption of this or that law is the government, which implements this or that policy and feels more acutely than others what act of parliament it needs for further effective work. In view of the foregoing Often a bill comes up precisely because the executive branch needs it the most. The government is often persuaded of the need for a new regulation through pressure groups. For example, trade unions can put pressure on ministers, members of parliament to pass or repeal a law, or to amend an existing law. Such activity has been called lobbying since the first advocates of someone's interests appeared in the lobby of parliament. Russian political practice already knows a lot of such facts: for example, the adoption of high customs duties, which restrict the import of foreign cars, under the influence of domestic automobile giants. A Member of Parliament also has the right to introduce a bill that may become law. However, in practice, this possibility is very limited, especially if the bill is not provided for by the program of legislative work, as is customary, for example, in the Russian State Duma, or if the bill is not supported by the government or the president. The second stage: consideration of the draft law in the commissions and committees of the law-making body in order to analyze its content from different positions and propose more advanced means of legal influence. A special role in this process belongs to the Legislation Committee of the Parliament, which, as usual, has the last word before the draft is submitted for discussion at a meeting of the House of Parliament. Third stage: discussion of the bill by the chambers or at a joint meeting of the chambers of the legislative body. The purpose of such a discussion is to express proposals, amendments and comments by individual deputies and factions (associations of deputies) of the parliament. This stage can have two development options: a) adoption of the draft law in the first reading; b) return it for revision with the subsequent passage of the procedure of discussion by commissions and committees of the Parliament. Fourth stage: adoption of the bill by the law-making body in the second (final) reading. What is the adoption of the bill? From a procedural point of view, acceptance only means that the draft has received the approval of the majority of the deputies of the chamber (or the parliament as a whole). From a legal point of view, the adoption of the bill by the members of parliament is one of the necessary legal facts that determine the further transformation of the bill into a full-fledged law. To complete the process of lawmaking, several more important stages are needed, which are logically included in the fourth stage of lawmaking. This is the signing of the bill by the head of state and the promulgation (publication in the media) of the text of the new law. In most Western countries, there are deadlines for the passage of a bill before its adoption: in France - 15 days from the date of introduction, in Germany - 6 weeks, in Spain - up to 20 days (for urgent bills). In the UK, for private bills, time limits are set between stages - four days (between the first and second reading), three days - between the report stage and the third reading. Russia does not yet have a clear regulation of the terms for consideration of draft laws, which indicates the existing red tape in the State Duma and the possibility of certain political forces to impede their passage. 4. Principles and types of lawmaking As already noted, lawmaking is a very significant area of state work, and therefore it should be based on rational, pragmatic, effective principles (principles, fundamental ideas) devoid of any ideology. The issue of principles is not of an abstract-theoretical nature; its development in the theory of law has a positive effect on the practice of creating legal normative documents. Compliance with the principles of lawmaking helps the legislator avoid legislative errors, reduces the likelihood of creating ineffective legal norms, and contributes to the growth of the legal culture of the population and legal entities. So, the principles of law-making are the basic principles for the implementation of law-making activities. Let's consider the most important of them. The principle of legality lies in the fact that the development and adoption of normative legal acts must take place in compliance with the legal procedure and not go beyond the competence of the bodies that adopt them. Adjacent to this principle is the requirement that normative acts comply with the constitution of the country and the current legislation. The scientific principle states that the preparation and adoption of a draft regulatory legal act is carried out with the participation of representatives of different sciences. Undoubtedly, the activity of legal scholars is most important for the success of legislative work. Scientists play an important role at all stages of preparing a law - from developing the concept of a bill, clarifying the need for a legal settlement of any social relationships (for example, through sociological research, observation and analysis) to determining the method and type of legal regulation and choosing the moment for the adoption of a normative act ( errors in this matter are extremely dangerous). The principle of using legal experience implies that any newly developed normative act should be based on the already known positive legal experience of states and civilization as a whole. This is of particular importance at the end of the XNUMXth century. - centuries of free movement of information flows. In addition, revolutionary innovations that are not known to legal science and practice are harmful and dangerous to public life. Recently, the domestic legislator has been widely using world law-making experience, all the best accumulated and achieved by world legal thought and legal practice. Here it suffices to point to the new Civil Code of the Russian Federation, which is second only to the Constitution of the country in its significance. In the new Civil Code, institutions of law appeared, borrowed in their essence from the experience of more legally developed states (the institution of trust property, the institution of a bank guarantee, the institution of moral damage, etc.). Such borrowing is not reprehensible, it is generally accepted and dictated by legal expediency. The principle of democracy makes it possible to effectively reveal the true aspirations and will of the people. A popular vote (referendum) is one of the ways to give a normative legal act the highest legal force. It was during the referendum on December 12, 1993 that the Constitution of the Russian Federation was adopted. However, popular voting is a rather expensive procedure, which is why it is most often used in small states where it does not require the involvement of large forces and means. Therefore, along with a referendum, an expression of the democracy of lawmaking is the publicity of the discussion of the bill in the lawmaking body, its free criticism, the proposal of alternative options, etc. Communication with practice as a principle of lawmaking expresses the task of the legislator to constantly monitor social processes, focus on the practice of applying existing laws, timely eliminate gaps in law, and perceive all the best that is offered by law enforcement agencies. Types of lawmaking. Traditionally, in the domestic theory of law, there are three types of lawmaking: 1) law-making of the competent state bodies; 2) "direct lawmaking of the people" (referendum); 3) the sanctioning of norms, in which the process of their creation takes place outside the state bodies. It seems appropriate here to consider the types of lawmaking that characterize the peculiarities of the legal nature of the process of creating legal norms by various state bodies. Law-making (law-making) of higher representative bodies. The main and most common type of lawmaking is the creation of laws by parliaments. The mechanism of legislative work of parliaments is distinguished by the following features: 1) a limited circle of subjects of legislative initiative; 2) a strict procedure for passing the project in parliament; 3) successive change of stages of lawmaking; 4) the plurality of means of legal response at the disposal of the legislator; 5) the conditionality of the legal content of the law-making act by the range of regulated relations. Sublegal lawmaking. It takes place in cases where the rules of law are adopted and put into effect by state bodies that are not related to its highest representative bodies. Acts of subordinate lawmaking are necessary to ensure the application of the law. The subjects of subordinate law-making include: the president, the government, other supreme bodies of the state, which, by law, have the right to create legal norms and regulations. The main reason for the existence of this type of law-making lies in the complexity of the issues that state bodies must solve. Parliament is not always competent enough to accept for its consideration any complex technical issue that requires the efforts of specialists, and besides, not all complex issues of modern society should be considered by parliament. There are situations when it is more expedient to transfer the decision to a lower level, as required by the rules governing the competence and prerogatives of law-making bodies. Another reason for the presence of sub-legislative law-making is that the parliament often experiences a lack of time, which does not allow making an appropriate legal decision (although this is desirable). As a result, there is a transfer of law-making powers to other subjects of rule-making. The trend of increasing by-law rule-making is observed in all countries. According to the estimates of various researchers, 10 laws adopted by the parliament account for 100 to 140 government regulations. Of course, by-law lawmaking has both positive and negative aspects. Its advantages include efficiency; flexibility and less formality; the competence of the relevant authorities, their knowledge of local and other conditions that increase the effectiveness of the adopted legal decision. The disadvantages of subordinate lawmaking include the closeness of the process of making a legal decision, the difficulty of reviewing and applying norms due to the large number of regulations, the lack of public control over the lawmaking work of the bureaucracy, etc. non-state legal entities. 5. Regulatory legal acts of the Russian Federation In the Russian state, in essence, the only source of law is a legal act. There is no judicial precedent (but the role of legal practice is great), there is no custom either, although there are exceptions. In the most general form, the hierarchical system of legal acts of Russia can be represented as follows: 1) Constitution (Basic Law); 2) federal laws; 3) decrees of the President; 4) resolutions of the Government; 5) normative acts of ministries and departments. A special group is formed by: a) international treaties of Russia; b) normative acts of state authorities of the subjects of the Federation. Let's take a closer look at these types of regulations. The Constitution (Basic Law) of the Russian Federation is the basis of all Russian legislation. Its supremacy in the system of normative acts of the Russian state is determined by the following: 1) the Constitution was adopted by referendum as a result of the free will of the entire people; 2) The Constitution establishes the basic principles, principles, norms of the social and state system; 3) The Constitution contains a list of fundamental human rights and fixes the structure and competence of the highest bodies of state power and administration; 4) The constitution is adopted, changed as a result of compliance with the complicated procedure of lawmaking. The text of the Constitution of the Russian Federation consists of 137 articles, contains norms relating to various branches of law. For this section, the norms of the Basic Law are relevant, which determine the competence of the highest bodies of the state to issue regulatory legal acts of a certain type (Articles 90, 105, 106, etc.), the procedure for the adoption and entry into force of federal laws (Articles 104-108) , and some others. Federal laws are adopted in the Russian Federation by the State Duma, after which they are submitted to the Federation Council for approval. A law is considered approved if more than half of the total number of members of this chamber voted for it, or if it was not considered by the Federation Council within fourteen days. The role of the President of the Russian Federation in the adoption of laws (along with the right of legislative initiative) consists in signing them within fourteen days and promulgating them. A special group of federal laws - constitutional laws that are adopted on issues stipulated by the Constitution of the Russian Federation and are distinguished by a special procedure for adoption - require 3/4 votes of the total number of members of the Federation Council and 2/3 votes of the total number of members of the Duma. In contrast to this, for example, such an important law as the Civil Code of the Russian Federation was adopted by a simple majority of votes. The law of June 14, 1994 recognizes as the date of adoption of the federal law the day when it was approved by the State Duma in its final version, and the federal constitutional law - the day of its approval by the chambers of the Federal Assembly in the manner prescribed by the Constitution of the Russian Federation. Federal constitutional laws and federal laws are subject to official publication within seven days after their signing by the President of the Russian Federation. For all types of laws, the official publication is the publication of their full text in Rossiyskaya Gazeta or in the Collection of Legislation of the Russian Federation. Federal constitutional laws and federal laws shall enter into force simultaneously on the entire territory of the Russian Federation upon the expiration of ten days after their official publication, unless the law itself establishes a different procedure for its entry into force. In accordance with the Constitution of the Russian Federation, the subjects of the Federation (republics, territories, regions, autonomous regions, autonomous districts and cities of federal significance) exercise their own legal regulation, including the adoption of laws, on matters within their jurisdiction. Such laws cannot conflict with federal laws. This manifests the principle of unity of legal regulation and the legal regime on the territory of the entire state. Legal regulation in the Russian Federation is not limited to laws alone. Corresponding relations are regulated by acts of the President, the Government, as well as ministries and other federal authorities, i.e. by-laws. Normative-legal acts of the President of the Russian Federation. The president is the head of state, and in accordance with this, the regulatory legal acts (decrees) issued by him take the next place after laws and are also binding on the entire territory of the Russian Federation. The main directions of domestic and foreign policy are the subject of regulation of decrees. In the event of a contradiction between the decree of the President of the Constitution and the laws of Russia, on the basis of the conclusion of the Constitutional Court of the Russian Federation, the decree becomes invalid. Compared to laws, decrees are adopted relatively quickly and come into force. In addition, the list of subjects for the preparation of draft decrees is not established by law, and, as usual, they are prepared by interested departments or the Government. Normative-legal acts of the Government. The Government of the Russian Federation exercises executive power in the country and, realizing this task, adopts resolutions and issues orders. Decisions of a normative nature or of the most important importance are issued in the form of decrees. Decisions on current and operational issues are issued in the form of orders. A feature of acts of the Government is that they can be adopted only on the basis of and in pursuance of the laws of the Russian Federation, as well as decrees of the President of the Russian Federation. Normative-legal acts of ministries and other federal executive bodies (departments). Their peculiarity lies in the fact that ministries and departments can issue orders and instructions containing the rules of law, in cases and within the limits provided for by the laws of the Russian Federation, presidential decrees, and government decrees. Therefore, the issuance of any departmental act should be based on a special instruction from higher authorities, although in practice it often happens differently. The acts of this group are very numerous and varied. These include orders and instructions, resolutions, regulations, letters, charters, etc. All of them are issued to implement the functions of public administration in various areas of public life (industry, science, culture, health, security, etc.) and are mandatory for execution for all organizations, institutions, officials subordinate to ministries and departments. Normative acts of ministries and other federal executive bodies affecting the rights, freedoms and other legitimate interests of citizens, as well as any interdepartmental acts are subject to state registration with the Ministry of Justice of the Russian Federation and are published no later than ten days after registration. In accordance with the Decree of the President of the Russian Federation of May 23, 1996 "On the procedure for the publication and entry into force of acts of the President of the Russian Federation, the Government of the Russian Federation and regulatory legal acts of federal executive bodies", acts that have not passed state registration, as well as registered, but not published in the prescribed manner, do not entail legal consequences, since they are not considered to have entered into force. Registration with the Ministry of Justice of the Russian Federation is necessary to verify the legality of the rule-making decision of the ministry or department: it is checked whether this act infringes on the rights and freedoms of citizens, whether they are assigned additional duties not provided for by the legislation of the Russian Federation. These acts cannot be referred to the courts in resolving disputes. Such a rule is the result of the struggle of lawyers of many generations for the democratic adoption and application of departmental legal acts, the subjects of which are primarily citizens. Moreover, according to the Rules for the preparation of departmental normative acts, approved by the Government of the Russian Federation on July 23, 1993, the central bodies of federal executive power are entrusted with the duty to bring the departmental normative acts adopted by them to the attention of the relevant government bodies of the Russian Federation, enterprises, organizations, institutions. These acts come into force 10 days after the day of their official publication in the Rossiyskiye Vesti newspaper or in the Bulletin of Normative Acts of Federal Executive Bodies. Normative acts of state authorities of the subjects of the Federation. Local regulations. The bodies of power and administration of the subjects of the Federation, solving the problems that confront them, and according to their competence, make decisions, putting them in a legal form. Normative legal acts issued by them apply only to the territories of the respective regions. Decisions of the regional level (laws, orders) are communicated to the executors within seven days from the date of their adoption, but no later than the date of entry into force. In the theory of law, local regulations are also called legal documents containing the rules of law adopted by the subjects of management at an enterprise, organization, etc. The regional, regional administration of the subjects of the Federation (in some regions - the government) has the right to adopt resolutions, orders, orders. The head of the administration may issue resolutions and orders on issues within his competence. Common to all types of by-laws of the Russian Federation is the fact that they, along with laws, serve as a source of legality, i.e. citizens and legal entities, following the rules of law contained in by-laws, strengthen the regime of law and order of the state. Citizens, officials and organizations are guided by the legal decisions made. Among by-laws there is a hierarchy derived from the administrative hierarchy. Thus, a decree of the federal government has greater legal force than a similar decree of the ministry, the government of the region, the head of the city administration. There are also local acts of state and non-state institutions and organizations of various forms of ownership. For legal registration, legal institutionalization, these organizations create various legal acts: orders issued by the head of the organization, charters and regulations on the basis of which they carry out their activities. Such acts form the lower level of subordinate legal acts and in most cases, in order to acquire legal force, they must be registered with the relevant municipal authority. For example, the charter of a limited liability company (or other similar organization) becomes legally effective only after registration with state authorities. Public relations can also be regulated by such sources of law as an agreement and a custom sanctioned by the state. Normative contract. The contract is an effective legal means for determining the rights and obligations, the rules for the relationship between citizens and legal entities. It is of great importance in relations between states. However, the contract is no less important as one of the main sources of law in the field of commercial relations and property turnover. From a legal point of view, a contract, as a rule, is an agreement between two or more persons to establish, change or terminate civil rights and obligations. In the context of the formation of a market economy in the Russian Federation, the role of the contract as a tool for self-regulation is growing significantly. Freedom and equality of the parties presuppose free entry into contractual relations without any administrative diktat. The content of the contract is therefore mutually established legal rights and obligations. The agreement is concluded on the following principles: 1) equality; 2) autonomy (independence) of the parties and their free will; 3) property liability for breach of obligation. The peculiarity of the contract as a subordinate source of law lies in the fact that the parties can conclude both a contract provided for and not provided for by law or other legal acts. The main requirement for the form, content and subject of the contract is that it does not contradict the current legislation. One might get the impression that there is no legal regulation of the institution of a contract in Russian legislation. However, it is not. One of the most important legal documents of our state - the Civil Code - devoted three chapters to the treaty. The terms of the contract must comply with the norms contained in the legislation. Otherwise, it may be declared invalid. At the same time, the legislator established the legal priority of the contract over the law adopted after the conclusion of the contract (clause 2, article 422 of the Civil Code of the Russian Federation). Custom as a source of law. The approach to the concepts of "custom" and "customary law" in various scientific schools is ambiguous. In domestic pre-revolutionary and modern Western jurisprudence, these concepts were not distinguished at all. So, the Russian historian and jurist V.M. Khvostov wrote in 1908 that it is necessary to consider as a custom a legal norm, the strength of which is based not on the prescription of state power, but on the people's habit of it, on its long-term application in practice. In other words, according to V.M. Khvostov, a custom is a legal norm, backed up by prescription. Some scholars view customary law as the original way of creating legal norms, which arose before society was politically constituted. In their opinion, the law established by custom was applied mainly at fairly early stages of the development of society, in archaic legal systems. However, this is not entirely true, since, according to ethnographic science, customs are still used by some peoples today, in addition, the process of creating new customs that reflect the ethno-cultural development of society continues. The peculiarity of the custom is that it is a rule of conduct that has become a habit. From a legal point of view, custom is an unwritten source of law, characterized by disorder, plurality and diversity. The reason for this lies in the multiplicity of cultures inhabiting a particular region. A custom sanctioned by the state is a very rare form of law. In Art. 5 of the Civil Code, a new concept is established - "customs of business turnover", which are recognized as established and widely used in any area of business rules of conduct that are not provided for by law, regardless of whether they are recorded in any document or not. At present, the scope of application of business customs is mainly limited to foreign trade transactions, but it seems that the further development of market relations will require more detailed regulation of the customs that have developed in this area. The legislator is already following this path, having established in Art. 427 of the Civil Code, the rule according to which the approximate terms of a standard (exemplary) contract can be recognized as a sanctioned custom. 6. Law: its concept and role in a democratic state A democratic state is a political organization of power based on the principles of separation of powers, respect for human rights, and the rule of law in all spheres of life. In most modern states, the main source of law is the law. Etymologically, the word "law" comes from the old Russian word "kon", which meant the border, the limit of something. In modern legal science and practice, the term "law" is used in two ways - as a legal normative act of the highest authority, adopted in a special manner by parliament (or with the help of a plebiscite), and as a normative act (legal document) of any body of the state that contains legal norms, binding rules of conduct. A law is a normative act with the highest legal force, adopted in a special manner by the highest representative body of state power or directly by the people and regulating the most important social relations. What are the characteristic features of the law as the leading source of law? 1. Law is a legal document containing the rules of law. 2. The law is the result of the law-making activity of the highest body of state power (parliament, monarch, etc.) or the entire people. 3. The law regulates the most significant, typical, stable relations in society. 4. The law has the highest legal force, which is manifested in the impossibility of its cancellation by another body, except for the one that adopted it, and also in the fact that all other legal documents should not contradict the content of the law. 5. The law is a fundamental legal document. It serves as a base, basis, guideline for the rule-making activities of other state bodies, courts. In a state that has a parliamentary system, naturally, a legislative system is also formed, consisting of normative acts of parliament (laws, statutes, etc.). The higher the degree of civilization, development and humanity of a society, the greater the need for laws. This makes special, increased demands on the content of the law. In the most general terms, we can say that the content of the law must be legal, that is, corresponding to the inalienable, inalienable natural rights of a person. Such rights are mainly fixed in the authoritative international legal documents of the UN, which constitute the legal basis for the legal protection of each individual and human civilization as a whole and serve as a legal imperative for the legislators of any state. The degree of observance of human rights in the law is a criterion of the quality of the law itself, an indicator of its essence and usefulness, justice and focus on freedom. The rule of law in all spheres of society means the impossibility of arbitrary discretion in managing the affairs of society and the state. In itself, this position is humanistic: a person and society are deprived of the possible danger of voluntarism, gross intrusions into the sphere of the personal by the authorities. Such an invasion is impossible without the grounds specified in the law. The content of the law is formed by primary norms, which in some cases receive further concretization and development in by-laws. 7. Limits of application of normative acts All normative acts have certain temporary, territorial restrictions (limits) of their existence and action, and also apply to a certain circle of persons (subjects of law). As a general rule, normative legal acts are applied to relations that took place in the period from their entry into force to their loss of force. Speaking about the limits of a normative act in time, three significant circumstances are taken into account: the moment it enters into force, the moment it ceases to be effective, and the application of the legal norms established by the normative act to relations that arose before its entry into legal force ("retroactive law"). In the Russian Federation, legal acts come into force in one of the following ways: - as a result of an indication in the text of a normative act of the calendar date from which the legal document enters into force; - as a result of an indication of other circumstances with which the entry into force of the document is associated ("from the moment of signing", "from the moment of publication", etc.); - as a result of the application of general rules. According to these general rules, the laws of the Russian Federation, other regulatory legal acts of the highest representative bodies enter into force throughout the Russian Federation simultaneously after ten days from the date of their official publication, unless otherwise indicated in the text of the act. Normative legal acts of the President of the Russian Federation and the Government of the Russian Federation enter into force throughout Russia simultaneously after seven days after their official publication. The publications in which the regulatory legal acts of the Russian Federation are officially published are Rossiyskaya Gazeta and the Collection of Legislation of the Russian Federation. Acts of ministries and departments come into force after 10 days from the date of their official publication and are subject to state registration with the Ministry of Justice (this is the prerequisite for their legality). The procedure for the entry into force of regulatory legal acts of the subjects of the Federation, municipal bodies is determined by them independently. Termination of the normative act occurs as a result of: - the expiration of the period for which the legal document was adopted; - announcements about the loss of legal force of a normative act (a direct indication of the abolition, which may be contained in a special act); - adoption by the authorized body of a new legal normative document of equal or greater legal force, regulating the same range of public relations; - obsolescence of a legal document due to the disappearance of circumstances that were subject to regulation (for example, the normative acts regulating the legal status of the Soviets of People's Deputies have ceased to be valid and therefore ceased to be valid due to the disappearance of these authorities on the territory of the former USSR). The issue of the effect of normative acts in time should be considered taking into account two more aspects. Firstly, a normative legal act does not have retroactive effect (this legal axiom was formulated by ancient Roman lawyers). A normative document is valid only in respect of those circumstances and cases that arose after its entry into force. This rule is a necessary factor in legal stability, when citizens and legal entities must be sure that their legal status will not be worsened by law. Secondly, a normative legal act may become invalid, but some of its provisions, norms can be applied to the facts that took place during its operation ("experiencing the law"). This also applies to the regulation of ongoing legal relationships. The action of normative acts in space is the essence of territorial restrictions on their action, when the normative act is applied in the territory to which the sovereignty of the state or the competence of the relevant bodies extends. Therefore, acts of federal bodies apply to the entire territory of the Russian Federation, acts of subjects of the Federation - to the territory of these state entities, acts of municipal bodies - to the territory of the corresponding administrative units. The territory limited by the borders of the state includes: land, including subsoil and the continental shelf, territorial waters (12 nautical miles), airspace. Sea, river and aircraft flying the flag of the state are equated to the state territory. According to the rules of international law, military vessels are equated to the territory of the state without exception, and civil ships and aircraft - in the waters and airspace of their state, the high seas and airspace. The effect of regulatory legal acts on a circle of persons is due to the following circumstance: all citizens, stateless persons, foreigners and legal entities located on the territory of the state fall under the scope of the legislation of the state in which they reside. Legal science and practice knows the principle of extraterritoriality. This is a legal fiction, according to which certain parts of the territory of the state (buildings of foreign embassies, missions or their means of transport), as well as diplomatic representatives of foreign states, are recognized as not being on the territory of the state where they actually reside, but are legally considered to be on the territory of the state whose the embassy is located in this building or whose representatives they are. On the basis of reciprocity, the territories of embassies in foreign states are considered the territories of the respective states. Any encroachment on the embassy building is equated with encroachment on the territory of the state and is considered as a violation of international law. 8. Systematization of regulatory legal acts In the course of social development, the state actively carries out law-making functions, as a result of which hundreds of various legal acts are issued on a wide range of issues. The formation of legislation as a mutually agreed and effective system occurs as a result of not only the planning of legislative work by the rule-making body, but also systematization. The systematization of legislation is the purposeful work of the legislator to streamline and bring existing legislative acts into a single system for the purpose of their accessibility, better visibility and effective application. Such work is based on knowledge about the system of law, its branches and sub-sectors. The goals of systematization are: the creation of a coherent system of laws that has the qualities of completeness, accessibility and ease of use of normative acts, the elimination of outdated and ineffective legal norms, the resolution of legal conflicts, the elimination of gaps and the updating of legislation. Legal science knows two main types of systematization: incorporation and codification. Incorporation - a type of systematization, during which the current regulations are brought together without changing their content, processing and editing. In this case, the textual presentation of legal norms (rules of conduct) is not subject to change. The result of incorporation is the publication of various collections or collections, which are formed according to the thematic principle (i.e., according to the subject of regulation) or according to the years of publication of regulations (i.e., according to the chronological principle). Incorporation is divided into official and unofficial. The collection of legislation of the Russian Federation can be attributed to the official one. Its first section publishes the regulations of the President and the Government for a certain period, the second - their individual legal acts. Informal incorporation includes collections of normative materials on branches of law published for educational purposes, to educate the population, etc. Such unofficial incorporated materials cannot be referred to during the consideration of legal cases in court, arbitration and other law enforcement bodies. Codification involves the reworking of the rules of law in terms of content and their systematic, scientifically substantiated presentation in a new law (code of laws, code, fundamentals of legislation, etc.). Codification is a systematization work of a higher level than incorporation, since in the course of codification there is a qualitative processing of existing legal norms, inconsistencies, duplication, contradictions and gaps in legal regulation are eliminated, inefficient and outdated norms are cancelled. The normative material is brought by the legislator into a coherent, internally coordinated legal system. The previously existing large number of legal normative documents are being replaced by a new single consolidated act, the publication of which achieves clarity and efficiency in legal regulation. The codification of legislation can be general (when all the legislation of the state is subjected to processing), sectoral (if the norms of a certain branch of legislation are processed) or special (covering the norms of any legal institution). 9. Legal technique The effectiveness and efficiency of laws and other regulatory legal acts to a large extent depends on how precise and clear the legal formulations are, how logically connected and consistent they are, how uniform the application of legal concepts and terms is. This is facilitated by the rules and techniques of legal technique, which are used by the legislator in the preparation of legal acts. So, legal technique is a set of rules, means and techniques for developing, formalizing and systematizing normative acts in order to make them clear, understandable and effective. The object of legal technique is the text of a normative document, in relation to which the intellectual efforts of the legislator are applied. It is the latter that uses various rules and techniques for preparing regulations. It should be noted that the level of development of legal technology always serves as a reliable indicator of the level of development of the legal culture of society. There is also no doubt that legal technique is not a purely technical, applied problem, but a criterion for determining the essence of law, a criterion for the direction of the political will of the legislator. The rules for preparing draft normative acts are very diverse and numerous. Let's name the most common ones: 1) specificity, clarity and exhaustive completeness of legal regulation; 2) logic in the presentation of the text of the document and the relationship of regulatory requirements with each other; 3) the absence of contradictions, gaps, conflicts both in the normative act and in the entire system of legislation; 4) clarity, ease of use and understanding of terms; the inadmissibility of using in the text of the document vague, ambiguous and fuzzy, emotionally saturated terms such as "outrageous", "violently mad", "exceptional cynicism", etc.; 5) the rejection of clericalism, verbal cliches, outdated turns and rarely encountered words ("add", "allowance", etc.); 6) brevity and compactness of the presentation of legal norms, minimizing duplication of regulatory material on the same issue. From the rules of legal technique it is necessary to distinguish the rules for the execution of a normative act. These are specific and unified norms that fix the official details and structural parts of a normative act. So, all constitutions always have a preamble (introductory part), and codes usually consist of general and special parts, the numbering of articles in the code is continuous, and when a new norm is included in it, it is assigned an index (“icon”) that does not violate the established numbering. The details of a normative act, confirming its official nature, include: the date and place of its adoption, the signatures of officials, the title (full and abbreviated), an indication of the addressees of the legal document. Chapter 21 1. The concept of a system of law The system of law is the internal structure (structure) of law, reflecting the unification and differentiation of legal norms. The main purpose of this concept is to explain at the same time the integration and division of the normative array into branches and institutions, to give a systematic description of positive law as a whole. The latter, being the normative core of the legal system of a particular society, has such qualities as integrity and autonomy, stability and dynamism, interconnection and structured content and form, has its own content and sources of development. It is especially necessary to emphasize here that the structure of law (its system) determines its form (the system of legislation) and is inextricably linked with it. In order to cognize and master law as a system, it is necessary to identify the foundations of construction, the criteria for integration and differentiation of legal norms. To do this, it is advisable to use various approaches and measurements that reveal the main forms of existence and the logic of the development of legal matter. From the standpoint of the genetic approach, it is possible to single out primary and derived criteria. A person acts as a primary (natural) criterion in relation to law. Derivatives in this regard can be various social and socio-political formations, in some way designed, primarily the state and society. From here originate backbone, cementing the law as a whole ties and those ties that determine its division into natural and positive. Natural law is understood as a set of rights and obligations arising from the very nature of man as a rational social being, i.e. those rights and obligations that have become fair norms of human behavior in society. Positive law is a system of norms containing certain rights and obligations emanating from the state and society, expressed (fixed) in legal documents (laws, judicial precedents, acts of executive power). At the same time, it must be borne in mind that all legal systems of modern positive law are based to one degree or another on natural law, contain natural law principles. The same criteria underlie the differentiation of law into private and public. The first is aimed at meeting the needs and protecting the interests of individuals, the second protects the general interests of the state. The historical approach allows us to trace the entire path of the formation of law as a system. The general visible criterion here is the form (source) of law, the analysis of which makes it possible to identify the predominant system-forming principles characteristic of a particular system of law, the specifics of the arrangement of its elements, architectonics. In accordance with this criterion, customary (traditional) law, case law, contract law and law of laws (codified, statutory, decree law) are distinguished. The historical view, revealing the genetic connections of the system of law, which form its basis, at the same time allows us to trace the dynamics of changes in the system in time and space. This is connected, in particular, with the development of a person as an individual and a member of various social formations. Here, the influence on the law of various religious, ideological, ethnic factors, the relationship between them is manifested. In this regard, for example, systems of Muslim law and Hindu law stand out. The system-structural cut denotes the spatial, in a certain way ordered arrangement of the rules of law. The orderliness, coherence, interconnectedness and differentiation of combinations of legal norms are due to the structuring of social relations and the purposefulness of their legal mediation. Structural formations in the system of law differ from each other in the complexity of the structure (horizontal, vertical, linear, matrix), in the degree of rigidity, the connectedness of elements, etc. In certain periods of the development of society and law, the most optimal structure comes to the fore. Currently, this is education, which includes norms, institutions, branches of law. The legal norm is the primary and final structural element of law. She is the first to experience the changes taking place in him. Due to its universal, cross-cutting meaning, the rule of law extends its properties to other levels of the system, serves as a reference point, a unit of measurement of legal matter. The rule of law independently regulates one side (facet) of social relations. For the legal regulation of relations as a whole, the interaction of a set of norms (material, procedural, definitive, operational) is often required. The institution of law is a separate group of legal norms that regulate social relations of a particular type. As an example, we can name the institution of property rights in civil law, the institution of responsibility of officials in administrative law, the institution of electoral law and the norms governing the status of a deputy in constitutional law. Institutes can be sectoral and intersectoral (complex). The branch of law is a separate set of legal norms, institutions that regulate homogeneous social relations. It reflects a higher level of backbone connections, is characterized by a certain integrity, autonomy. Branches are divided into material and procedural. The former include, for example, civil, labor, criminal, land law. The second group consists of civil procedural, criminal procedural and administrative procedural law. The branch of constitutional procedural law is also beginning to take shape. The criteria for dividing law into branches and institutions are the subject and method of legal regulation. The subject of legal regulation is the actual relations of people that objectively need legal mediation. Their circle is very wide and varied - labor, management, property, land, family, etc. They have the following features: 1) these are relations vital for a person and his associations; 2) these are strong-willed, purposeful (reasonable) relations; 3) these are stable, repetitive and typical relationships; 4) these are behavioral relations, over which external control can be exercised (for example, by jurisdictional bodies). Public relations act as the main objective (material) criterion for dividing law into branches and institutions. The structure of these relations, their type, genus, type determine to a certain extent the structural and content parameters of the norm, institution, industry and law as a whole. The method of legal regulation is a set of methods of legal influence on people's behavior, developed as a result of long-term human communication. If the subject of legal regulation answers the question of what regulates law, then the method answers the question of how it regulates. The method combines objective and subjective moments and has an additional (procedural) character in relation to the subject. When regulating public relations, various methods are used: imperative and dispositive, alternative and recommendatory, rewards and punishments. Their application depends on the content of relations, the discretion of the legislator, the prevailing law enforcement practice, the level of legal culture of the population. These methods can act independently and in combination, in interaction with each other. The most common and polar in their characteristics are imperative and dispositive methods. The imperative method is based on relations of subordination, subordination of some subjects of law to others. It is typical for administrative, penal and executive law. The dispositive method assumes the equality of the parties and is used in the branches of private law (civil, labor, family). 2. System of legislation The system of legislation is understood as a set of normative legal acts in which the internal content and structural characteristics of law are objectified. This system is an external expression of the system of law. The latter, however, receives its real existence precisely in clear, formally defined acts - documents. However, the coincidence between the system of law and the system of legislation, ranging from a single norm to law as a whole, is not absolute. Within these boundaries, they exist independently, as they have their own specifics, have their own development trends. The system of legislation is formed as a result of the publication of legal norms, fixing them in official acts and systematizing these acts. It has a complex structure. Depending on the grounds (criteria), it is possible to distinguish horizontal, vertical, federal and complex systems of legislation. The horizontal (sectoral) structure of the legislative system is conditioned by the subject of legal regulation - the actual social relations. Based on this criterion, the branches of legislation corresponding to the branches of the legal system are singled out (constitutional law - constitutional law, labor law - labor law, civil procedural law - civil procedural law). The vertical (hierarchical) structure reflects the hierarchy of public authorities and legal acts in terms of their legal force. The system of normative legal acts of the Russian Federation is headed by the Constitution, followed by laws, decrees of the President, decrees of the Government, normative acts of local authorities, local normative acts. The federal structure of the system is based on two criteria - the federal structure of the state and the terms of reference of the subjects of the Federation in the field of legislation. In accordance with Art. 65 of the Constitution of the Russian Federation and the Federal Treaty of March 31, 1992, three levels of regulatory legal acts of the Russian Federation can be distinguished: - federal legislation (the Constitution of the Russian Federation, fundamentals of legislation, federal laws, decrees of the President, resolutions of the Government of the Russian Federation and other normative acts of the Federation); - legislation of the constituent entities of the Russian Federation - republics within the Russian Federation (constitutions of republics, laws and other regulations), territories, regions, autonomous districts, an autonomous region, cities of federal significance - Moscow, St. Petersburg (charters, laws, resolutions of heads of administrations and other regulations); - Legislation of local governments (decisions, resolutions). Complex formations in the system of legislation are formed depending on the object of legal regulation and the system of public administration. These include environmental, transport legislation, regulations that determine the legal status of certain social groups (youth, women, veterans). 3. Trends in the development of the system of law and the system of legislation The main directions of development and improvement of law are connected with the socio-economic and political reforms taking place in the country. At the same time, there are deep processes of changing the very content of law, updating legislation and understanding the new role of legal phenomena in the life of a person and society. Here are the following trends: 1) general, characteristic of law as a whole, including the system of law and the system of legislation as two sides of one integral phenomenon; 2) trends in the development of the structure (system) of law; 3) trends in improving legislation. The general trends include the following. 1. Gradual change in the ratio of "man and law". On the one hand, we are talking about the "humanization" of law, about the creation of such a legal system, where the focus would always be on a person, his rights and freedoms. Real steps in this direction have been made in the Declaration of the Rights and Freedoms of Man and Citizen, the Constitution of the Russian Federation, the Civil Code of the Russian Federation, laws on property, citizenship and other normative acts. This also includes a change in the methods of legal regulation: the transition from imperative to dispositive methods, the predominance of a generally permissible type of regulation in relations between people. In a word, the scope of private law is increasingly crystallizing and expanding. On the other hand, there is a certain restriction of public law regulation, which in former times was brought to the point of absurdity (evidence of this is the establishment of maximum sizes for garden houses, baths, cellars, etc.). Currently, there is an alignment of relations between the state and the individual in terms of the scope of rights and obligations between them, guarantees for their implementation. 2. Decentralization of legal regulation. The Constitution of the Russian Federation and the Federal Treaty created the basis for legislative stimulation of the development of subjects of the Federation, local governments. Such means of decentralized regulation as contracts, subsidiary application, analogy of law and law are receiving significant development. 3. Integration into Russian legislation in certain cases of generally recognized principles and norms of international law and international treaties of the Russian Federation (Article 15 of the Constitution of the Russian Federation). One can also talk about the integration trend of the legislation of the CIS member states in the economic, information space, and the sphere of combating crime. Among the trends in the development of the structure (system) of law are the following. 1. The process of gradual accumulation of normative material and its distribution by structural blocks - institutions, industries. The trend towards a certain unification of such blocks as equivalent in volume, structure and other characteristics is becoming more and more noticeable, which makes it possible to expand the planes of their interaction and increase the efficiency of regulation. This process includes the formation of new institutions and industries (banking, tax law), as well as their separation from existing structural units (family law). 2. The growth of the importance of legal regulation, which entails the formation of complex structural associations of legal norms. This is due to the complex nature of the subject and method of legal regulation, subjects and objects of legal relations. The emergence of complex formations also depends on the degree of development of the legal system, on its interaction with other normative and regulatory systems of society. 3. Possible development of the system of law in the direction from the modern structure with its fairly strong ties between institutions and industries to a "plasma" structure, where the primary structural elements will be in a state of relative autonomy. In necessary cases, in the presence of certain system-forming factors, they can create structural associations to resolve any issues. Problems arising from the natural needs of social development determine the goals of the legislator in their settlement. The purpose of the legislator "attracts" from the normative array of norms that are different in their purpose and functional specialization in order to achieve it effectively and quickly. Legislation improvement trends are as follows. 1. Bringing the entire legislative array in line with the Constitution of the Russian Federation. This process includes the revision of the current legislation, the abolition of obsolete regulations, the creation of new laws, the improvement of legislative technique and the legislative process. In particular, the Federal Law on the procedure for publishing and coming into force of federal constitutional laws, acts of the chambers of the Federal Assembly of June 14, 1994 recognized two obsolete laws as invalid, defined a new procedure for the publication and entry into force of laws, designated the "Collection of Legislation of the Russian Federation" as an official periodical and ordered the President and the Government of the Russian Federation to bring their legal acts in line with this law. 2. Formation of new complex branches of legislation - on banks and banking activities, privatization, bankruptcy of enterprises, taxes, local self-government, etc. A comprehensive legal impact makes it possible to more effectively and purposefully address economic and social issues. 3. The formation of a new structure of legislation, caused by the delimitation of powers between the Federation, the republics within the Russian Federation and other subjects of the Federation. New types of legislative acts appear (charters of territories, regions, regional and regional laws, decrees, resolutions of governors, heads of administrations and other normative acts). Chapter 22. Legal Consciousness and Legal Culture 1. The concept of legal consciousness Law as a social phenomenon causes one or another attitude of people towards it, which can be positive (a person understands the necessity and value of law) or negative (a person considers law useless and unnecessary). People in one form or another express their attitude to everything that is covered by legal regulation, which is connected with ideas about law (to laws and other legal acts, to the activities of the court and other law enforcement agencies, to the behavior of members of society in the field of law). A person somehow relates to the past law, to the law that exists now, and to the law that he would like to see in the future. This attitude can be rational, reasonable and emotional, at the level of feelings, moods. This or that attitude to law and legal phenomena in society can be in one person and in a group of people, the human community. If we recognize law as an objective reality, then we must also recognize the existence of a subjective reaction of people to law, called legal consciousness. Legal awareness is an inevitable companion of law. This is due to the fact that law is the regulator of relations between people endowed with will and consciousness. It is quite obvious that the process of creating law (law-making) is associated with the conscious activity of people, that law is a product of this activity. It is also clear that the process of putting the law into practice is usually a conscious, volitional activity of people. An illustration of the work of consciousness, both on a rational and emotional level, can serve as a law-making activity of the Russian parliament (the Federation Council and the State Duma). An example of the work of consciousness in the process of exercising the right is the life of any of us, when we, when performing legally significant actions, are guided not by the text of normative acts, but by those ideas about them that have developed in our minds. Legal consciousness is a set of ideas and feelings that express people's attitude to law and legal phenomena in public life. Legal consciousness usually does not exist in a "pure" form, it is interconnected with other types and forms of awareness of reality and reality. So, quite often legal consciousness is intertwined with moral views. People evaluate law and legal phenomena in terms of the moral categories of good and evil, justice and injustice, conscience, honor, etc. Attitudes towards law are often determined by political views. This is especially characteristic of the Marxist-Leninist attitude to law. Marxism-Leninism understands law as the will of the ruling class elevated to law, and law as a political measure. A one-sided political approach to law makes it impossible to fully understand its essence and role in the life of society. In our legal science and legal education, it is necessary to strive for the depoliticization of law and legal consciousness. The class-political approach to legal understanding should be considered as one of the many research approaches to the legal issues of society. Legal awareness is closely associated with philosophical theories, ideological views, and religious doctrines. Some thinkers believed that the norms of law, their obligation and coercion live only in the minds of people, therefore law is a psychological phenomenon (L. Petrazhitsky). Others emphasized the external coercion of law as an external means of regulating human freedom (I. Kant, G. Hegel). Still others considered law to be a class regulator of social relations (K. Marx, V.I. Lenin). The fourth recognized the role of the designer and guarantor of natural human rights (Ch. Montesquieu, J.-J. Rousseau) for the right. Russian jurist I.A. Ilyin considered legal consciousness as a set of views on law, on the state, on the entire organization of social life. For example, he believed that the form of government in the state is determined primarily by the monarchical or republican legal consciousness of the people. I.A. Ilyin emphasized that a person without legal consciousness will live by his own arbitrariness and endure arbitrariness from others. The influence of legal consciousness on the organization of public life is quite large, palpable. This explains its inclusion in the mechanism of legal regulation as one of the means of influencing social relations. A specific feature of legal consciousness as an integral part of the mechanism of legal regulation is that its role is not limited to any one stage of legal influence. Legal awareness is included in the work and at the stage of lawmaking, and at the stage of implementation of the law. To one degree or another, it is present in all elements of the mechanism of legal regulation - the rules of law, legal relations, acts of realization of the law. The most visible role is played by legal consciousness at the stage of realization of the right, in the process of implementing legal rights and obligations. Human life clearly demonstrates that consciousness, thought, image, volitional effort really control people's behavior, initiate and regulate their actions and deeds in all spheres of life, including legal ones. The level, quality, nature, content of legal consciousness largely determines what a person's behavior in society will be - legal, socially useful or illegal, socially harmful and dangerous. 2. The structure of legal consciousness Legal consciousness (both individual and collective) is a complex structural formation in which rational components can be distinguished, usually called legal ideology. Legal ideology includes concepts and ideas about law and legal phenomena in society. The level and quality indicators of such ideas can be different: from primitive, superficial to scientific and theoretical. The legal ideology can be attributed to the arguments about the law of a wise rural elder, and the work of G. Hegel "Philosophy of Law". The role of legal ideology in legal regulation is quite obvious: - law-making is carried out on the basis of legal views, theories, doctrines; - rational components are also important in the process of realizing the law. Legal science has a special significance in legal ideology. Scientific theory determines the strategy for the development of the legal life of society, carries out a comprehensive analysis of the current legal situation. Scientific doctrines can act as sources of law. The development of legal theory, rational understanding of the role of law in the life of society are important and necessary elements of legal education, the formation of legal professionalism. In legal consciousness, emotional structural elements can also be distinguished, which are called legal psychology. Emotions are organically included in the structure of consciousness, and a person cannot be guided in the field of legal regulation only by rational thinking. Emotional coloring (positive or negative) significantly affects the nature and direction of legal behavior. The practice of studying lawful behavior shows that it is difficult to understand anything in the nature of human behavior, if we ignore his emotional sphere. Emotions also influence wrong behavior. For example, the state of strong emotional excitement during the commission of a crime has legal significance. These issues will be studied in the course of the criminal law training course. An analysis of people's attitudes to laws and other normative legal acts makes it possible to single out other elements in the sense of justice. The first element is informational. This is the presence in the mind of one or another amount of information about the law. Information can be complete and comprehensive (for example, after working with the text of the law, getting acquainted with the process of its adoption, reading comments on this law), or it can be superficial, from someone else's words. The information level of legal consciousness is its obligatory structural part, because without information about the law there can be no relation to it. The second element is evaluative. Having received information about a normative act, a person somehow relates to it, somehow evaluates it, compares it with his own values. Axiological (value) elements of legal consciousness occupy an important place in its structure. On the basis of a person's value ideas, the motives of his behavior in the legal sphere are formed. Awareness of the value of law by a person contributes to the transformation of law from "foreign", coming from external forces, from powerful social structures, into "one's own", contributing to the realization of the goals and interests of a person. On the basis of the informational and evaluative elements, the third element is formed - volitional. After learning about the law and evaluating it, a person decides what he will do in the conditions provided for by the law. To use the law for the realization of one's own tasks or to "get around" it, strictly implement this law or find other legal acts that are more in line with the interests and needs - all these moments are included in the volitional element of legal consciousness. The volitional orientation of legal consciousness is sometimes called a legal attitude, that is, a psychological orientation, a person's readiness to somehow act in the field of legal regulation. Of course, in real life, legal consciousness manifests itself as something whole, not structured. Isolation of structural elements in legal consciousness only contributes to the understanding of its role and place in the life of a person and society. 3. Types of legal consciousness To understand what legal consciousness is, it makes sense to consider its varieties. The basis for the division of legal consciousness into types can be taken as the level of awareness of the need for law, the depth of penetration into the essence of law and legal phenomena in society, which will allow us to give it, as it were, a qualitative description. According to these criteria, legal consciousness is divided into three levels. The first level is ordinary legal consciousness. This level is characteristic of the bulk of the members of society, is formed on the basis of the daily life of citizens in the field of legal regulation. People in one way or another encounter legal prescriptions: they receive some information from the media, observe the legal activities of state bodies, officials, etc. People with this level of legal awareness are characterized by knowledge of the general principles of law, here legal views are closely intertwined with moral notions. The second level is professional legal awareness, which develops in the course of special training (for example, when studying at a law school), in the process of carrying out practical legal activities. Subjects of this level have specialized, detailed knowledge of the current legislation, skills and abilities of its application. The formation of professional legal consciousness should be given special attention in modern conditions. The lack of professionalism in lawmaking and law enforcement is one of the troubles of our society. The third level is scientific, theoretical legal consciousness. It is typical for researchers, scientists involved in the legal regulation of social relations. According to the subjects (carriers), legal consciousness can be divided into individual and collective. One of the types of collective legal consciousness is group legal consciousness, i.e. legal representations and feelings of certain social groups, classes, strata of society, professional communities. In some cases, the legal consciousness of one social group may differ significantly from the legal consciousness of another. For example, visible differences exist in the legal consciousness of classes in a society with pronounced class contradictions. Marxist-Leninist literature emphasizes the opposite, the contradictory nature of the legal consciousness of the exploiters and the exploited. One can see differences in the legal consciousness of the age strata of the population in society, in the professional legal consciousness of lawyers of various specializations - employees of the prosecutor's office, the court, the legal profession, persons working in the system of the Ministry of Internal Affairs. Group legal consciousness must be distinguished from the mass one, which is characteristic of unstable, temporary associations of people (rallies, demonstrations, rebellious crowds). To characterize macro-collectives (population of a country, continent, historical era), the concept of "public legal consciousness" is used. This also includes the legal views of nations and nationalities. For example, the legal consciousness of Russian society is distinguished by a number of features. K.D. Kavelin in his article "A Look at the Legal Life of Ancient Russia" pointed out that these features were predetermined by the historical conditions for the development of the Russian mentality. The Russian people have an inherent view of law as mandatory prescriptions of people standing at the top of power, which is typical for societies of the patriarchal type. Vl. Solovyov in his work "Justification of the Good" writes that the law is understood by the Russian people as a means of coercive implementation of the minimum good. Such an understanding of law is typical for feudal societies, for unlimited monarchies, police, totalitarian states, where law exists to suppress the deeds of vicious, negligent, evil. Russian society is characterized by the substitution of legal consciousness with ethical views. For centuries, the ideas of law and freedom, the rule of law and the rights of the individual had no place in Russian historical experience. Russian public consciousness is characterized by legal nihilism, disrespect for law and law. E.Yu. Solovyov ironically remarks that if the European social contract is the consent of the subjects and the authorities on a mutually binding law, then the Russian social contract is a tacit conspiracy of the people and the authorities about mutual impunity in violation of the law. With a fairly obvious absence in the history of our country of persistent legal traditions, legal values, one should not forget the enormous contribution of Russian lawyers - scientists and practitioners to the formation of law and legal consciousness in Russia in the late 1917th - early XNUMXth centuries. But the process of formation of Russian legal consciousness was interrupted in XNUMX. Significant damage to the emerging Russian legal consciousness was caused by the Marxist-Leninist idea of the withering away of law. The legal life of Soviet society did not contribute to the development of legal consciousness either. Russian society in its current state is completing the XNUMXth century. in conditions of a deep deficit of legal understanding and legal consciousness. In this situation, the issues of understanding the role of legal consciousness, the ways of its formation and development acquire special significance. For Russian society, the urgent task is to develop such a legal idea that would correspond to its historical traditions, the spirituality of its people, and would ensure the formation of a legal state and a legal social order. 4. Legal culture The category "legal culture" is used to characterize the entire legal superstructure, the entire legal system of the country, but from a certain point of view. In contrast to the analysis of other extremely broad legal categories, when analyzing the legal culture of society, the main focus is shifted to the study of the level of development of legal phenomena in general, to the description and explanation of legal values, ideals and achievements in the legal sphere, reflecting the scope of human rights and freedoms and the degree of its protection. in this society. The concept of "legal culture" always involves an assessment of the "quality" of the legal life of a particular society and its comparison with the most developed legal models, ideals and values. Legal culture is understood as the qualitative state of the legal life of society, conditioned by the entire social, spiritual, political and economic system, expressed in the achieved level of development of legal activity, legal acts, legal awareness and, in general, in the level of legal development of the subject (individual, various groups, the entire population), as well as the degree of guarantee by the state and civil society of freedoms and human rights. It follows from the definition that legal culture is a certain "quality" of the legal life of society, the level of its development, consisting of subsystems, parts or elements that are in one state or another (also from the point of view of the level of development). What are these subsystems, parts or elements? What, in other words, is the “structure” of legal culture? The legal culture of a society depends primarily on the level of development of the legal consciousness of the population, i.e. on how deeply they have mastered such legal phenomena as the value of human rights and freedoms, the value of the legal procedure in resolving disputes, finding compromises, etc., how legally informed the population, its social, age, professional and other groups, what is the emotional attitude of the population to the law, the court, various law enforcement agencies, legal means and procedures, what is the attitude of citizens to compliance (non-compliance) with legal requirements, etc. This is the first element of legal culture. The level of development of legal consciousness can be fixed only in real legal activity, in legal behavior, which also have independent characteristics. Therefore, the second element of the structure of legal culture is the level of development of legal activity. The latter consists of theoretical - the activities of legal scholars, educational - the activities of students and students of law schools, universities, etc., and practical - law-making and law-realizing, including law enforcement, activities. It is clear that the legal culture of a society largely depends on the level of development and quality of law-making activities to create a legislative basis for the life of society. Law-making should be carried out by persons who are legally competent and in many other respects, in compliance with democratic and proper legal procedures and principles. Significantly affects the legal culture of society and law enforcement, i.e., the power of state bodies that carry out individual regulation of social relations on the basis of the law in order to implement it. The quality of law enforcement activity depends on many factors, both institutional (the structure of the state apparatus, the order of relations between its bodies) and other (professionalism, culture of the law enforcement officer, etc.). Speaking, for example, about the structure of the state apparatus in general and law enforcement agencies in particular, it is necessary to emphasize the need to improve the structure and subordination of the investigative bodies, increase the authority of the court, strengthen guarantees of its independence, etc. It is also necessary to introduce new principles for the activities of law enforcement agencies (renunciation of accusatory bias, ensuring the priority of human rights and freedoms, etc.), the cardinal rise of the third branch of power in Russia - justice. The legal culture of a society is largely determined by the actual legal behavior of citizens, their activities in the implementation of the law, the extent to which they know and timely fulfill their duties (for example, filling out a tax return on total annual income), comply with prohibitions and how fully they use their rights. The third element of the legal culture of a society is the level of development of the entire system of legal acts, that is, the texts of documents in which the law of a given society is expressed and consolidated. The most important for assessing the legal culture of society is the system of legislation, the basis of which is the constitution of the state. In general, the level of development of the entire system of normative legal acts is also important, starting from laws, acts of central executive authorities and ending with acts of local authorities and administration. Any legal act must be legal, that is, it must comply with the ideas of justice, equality and freedom prevailing in the public mind. The law must also be perfect in terms of its form: be consistent, as short as possible and necessarily clear and understandable to the public, contain definitions of basic terms and concepts, be published in a source accessible to the public, etc. The quality of the law is evidenced by the content in itself, the mechanism for its implementation (institutional, organizational, procedural, financial and economic, etc.). When determining the quality of the legal culture of a society, the state of individual legal acts - documents should be taken into account: law enforcement (decisions and sentences of courts, decisions of investigators, acts of prosecutors, documents in the administrative and managerial sphere, etc.) and law enforcement (contracts in economic circulation, etc.) d.). Based on the analysis of these legal acts, as well as other texts of a legal nature (for example, scientific and journalistic texts on legal topics), one can draw a conclusion about the level of development of not only the legal culture of society, but also its culture as a whole. Indeed, according to the monuments of law and other legal documents that have come down to us, historians restore the atmosphere of the legal life of society, and the features of this or that way of economic life, this or that system of social relations. In legal acts, the form of ownership of the instruments and means of production is officially fixed, the fact of the presence in the hands of any class, social group of economic and political power, the structure of the state apparatus, the legal status of the individual in society, the level of protection of human rights and freedoms are reflected. The allocation of the structural elements of legal culture is rather conditional, since there is no legal activity carried out separately from legal consciousness, and legal consciousness can manifest itself only in legal activity and its results - legal acts. Finally, all the constituent parts of legal culture cannot exist without their carrier-subject - a person, a group of people, the population as a whole. The legal culture of a society depends on the level of legal development of various social (classes, for example) and professional groups, as well as on the level of development of individual individuals. In this aspect, it is necessary to single out the legal culture of the population as a whole, the group legal culture and the legal culture of an individual, a person. In the latter case, it is also necessary to take into account the level of legal knowledge of a given individual and his attitude to legal value, to the law, the level of legal orientation to comply with legal requirements. The legal culture of a person can be judged by his behavior in the legal sphere, i.e., use the same signs and criteria of legal culture (the level of development of legal consciousness, legal activity, etc.), but only at the individual level. The analysis of legal culture is necessary in order to first identify and describe the legal values, ideals and patterns that the legislator, law enforcer, citizen and society as a whole should strive for, and then, assessing the real state of affairs from this point of view, look for ways and means to achieve the outlined ideals of building a state of law and a society in which human rights and freedoms corresponding to its socio-economic and spiritual system are ensured. 5. Legal nihilism The antipode of legal culture is legal nihilism, i.e., a negative attitude towards law, law and legal forms of organizing social relations. In Russia, it has, unfortunately, deep roots. More A.I. Herzen noted that “legal insecurity, which from time immemorial weighed upon the people, was for him a kind of school. The flagrant injustice of one half of his laws taught him to hate the other; he submits to them as a force. Complete inequality before the court killed any respect for legality in him. A Russian, no matter what rank he may be, circumvents or breaks the law wherever it can be done with impunity; and the government does exactly the same. The Marxist-Leninist idea of the withering away of the state and law under socialism caused great harm to the development of legal principles in society. The classics of Marxism-Leninism, in general, did not hide their negative attitude towards law. K. Marx and F. Engels wrote: "As for law, we, along with many others, emphasized the opposition of communism against law, both political and private, and in its most general form - in the sense of human rights." Legal nihilism can act in two varieties, or forms - theoretical (ideological) and practical. In the first case, there is a theoretical, conceptual justification of legal nihilism, when scientists, philosophers, political scientists prove (I think quite sincerely) that there are much more important values (for example, the world proletarian revolution) than law in general, and even more so the right of an individual . In the second case, these views and teachings are put into practice, which often results in the terror of the state against its people, in the many millions of victims among the population, in the transformation of the ruling elite, ultimately into a criminal clique (which is why it becomes natural and easy support for state bodies and officials persons, for example, security agencies, prison administration, etc., in the implementation of public policy on criminal elements). It is clear that in those societies where legal nihilism is reproduced by the state itself on an appropriate scale, it is very difficult, almost impossible, to cultivate any positive attitude towards law among the population, since law misunderstands that order, those prescriptions that are established by laws and departmental regulations. And then in society there is an ordinary, mass legal nihilism that is widespread among the population. In addition, the prescriptions established by the state are not observed by state bodies, departmental and officials, for which there are also appropriate explanations and justifications (“in the interests of the people”, “for the implementation of the plan”, etc.). In the latter case, departmental legal nihilism develops in society. On a par with legal nihilism is the opposite phenomenon - legal idealism or romanticism, in a word, an exaggeration of the real regulatory possibilities of the legal form. This phenomenon accompanies human civilization practically on the entire path of its development. So, even Plato naively believed that the main means of implementing his plans for building an ideal state would be ideal laws adopted by wise rulers. In the Age of Enlightenment, it was considered sufficient, having destroyed the old laws, to adopt new ones, and the kingdom of reason would be achieved. It is surprising that even today many people and even politicians mistakenly place too high hopes on the law in the reorganization of our society. It seems that only sufficient political and legal experience can dispel the illusions of legal idealism. 6. Legal education and legal training Legal education is a purposeful activity for the transmission (transfer) of legal culture, legal experience, legal ideals and mechanisms for resolving conflicts in society from one generation to another. Legal education aims to develop the legal consciousness of a person and the legal culture of society as a whole. Usually they talk about legal education in a broad and narrow sense. In the first case, we are talking, rather, not about legal education, but about the legal socialization of a person, when he is "educated" by the environment as a whole, by the entire legal practice and the behavior of people, officials - representatives of the state apparatus in the legal sphere. At the same time, people, officials, state bodies engaged in legal activities (legal or illegal) do not have a direct goal of exerting a law-educational influence on others. However, such an impact on others still turns out. As for legal education in the narrow sense, it is distinguished by its focus on improving the legal culture of a person, a group of people and society as a whole. Legal education is closely related to legal education: education cannot take place without education, and education in one way or another also has an educational effect. The difference here can be made, and quite conditionally, in terms of the sphere of influence: education mainly affects the emotional-volitional, value, worldview side of consciousness, and training - on the cognitive-rational, with the aim of informational and educational impact on a person. The value, emotional and volitional influence, in turn, is very much limited by real legal practice, since it is impossible to instill in a person respect for those values that are absent in the public consciousness and activities of people, but are proclaimed in words, in empty declarations and demagogic statements (as political leaders in front of the population, and simple educators and teachers in front of children and youth). Values and ideals "grow" spontaneously, are formed by life itself, by all surrounding circumstances, and the role of the subjective factor, purposeful activity here, although important, is not leading, much less the only necessary and sufficient. And not everyone is suitable for the role of educator. On a social scale, such an educator can be any outstanding person (A.D. Sakharov, A.F. Koni), who will "open" people's eyes to the true state of affairs in the field of protecting human rights, resisting state arbitrariness. For this reason, the main emphasis in improving the legal culture of society should be placed on legal education, informing the population about existing legal regulations. It is very important to familiarize the population with examples and ideals, legal experience and traditions of those countries where the level of legal protection of the individual, and hence the level of legal culture, is higher than in Russia. It is all the more important to teach this to future professional lawyers so that they see the main goal of their activity in protecting human rights and freedoms from the arbitrariness of society and the state, that is, in protecting the weak from the strong, which is one of the central postulates of global, universal morality, morality and culture in general. Chapter 23. Legal relations 1. The concept of legal relationship Law regulates social relations, as a result of which they acquire a legal form, that is, they become legal relations. A correct understanding of legal relations is impossible without understanding what social relations are. Social relations are the connections between people that are established in the process of their joint activities. The most important of these are economic ties, because they form the basis of society and determine all other social relations. The subjects of public relations can be social communities (people, nation, collective, etc.), organizations (state, private, public), individuals. The place of each subject in the system of social relations is determined by the objective laws governing the functioning of social relations and the activity of their participants. Law acts as a powerful organizing factor, brings special certainty and stability to the relevant sphere of public and state life. The category "legal relationship" allows us to understand how the law affects people's behavior. Within the framework of legal relations, the life of society acquires a civilized, stable and predictable character. A legal relation is a social connection arising on the basis of the norms of law, the participants of which have subjective rights and legal obligations provided by the state. This is the central link in the mechanism of legal regulation, the main channel for the implementation of law. As a variety of social relations, legal relations are characterized by the following features: 1. The parties to a legal relationship always have subjective rights and bear obligations. The content of the legal relationship is formed as a result of the will of its participants, the operation of legal norms, as well as in accordance with the decisions of law enforcement authorities. It should be borne in mind that for the emergence and implementation of legal relations, the simultaneous presence of all the listed grounds is not at all necessary. Usually, legal regulation occurs without the intervention of the law enforcer. In the absence of a regulatory framework, the legal relationship develops with gaps in the legislation. Participants in a legal relationship can independently determine the content of mutual rights and obligations if their relationship is regulated by dispositive norms. A legal relationship is a two-way relationship. This means that in any legal relationship there are two parties involved: the authorized and the obliged. For example, under a loan agreement (Article 807 of the Civil Code of the Russian Federation), the authorized party is the lender, the obligated party is the borrower. True, here it is necessary to make a reservation: most often, legal relations have a more complex structure, when each of the parties is both authorized and obliged. For example, under a sale and purchase agreement (Article 454 of the Civil Code of the Russian Federation), the seller is obliged to transfer the purchased thing to the buyer and has the right to demand payment of money for it, and the buyer is obliged to pay the required amount and has the right to receive the purchased thing. 2. A legal relation is such a social relation in which the exercise of a subjective right and the fulfillment of an obligation are provided with the possibility of state coercion. In most cases, the exercise of a subjective right and the fulfillment of an obligation take place without the use of measures of state coercion. If this becomes necessary, then the interested party applies to the competent state body, which, having considered the legal case, makes an authoritative decision (the act of applying the law), which precisely defines the subjective rights and obligations of the parties. 3. The legal relationship acts as a specific social connection, and the degree of specification may be different. Legal relations that arise directly from the law are minimally specified. In such cases, all addressees of a legal norm have common (identical) rights and freedoms and bear equal obligations, regardless of any conditions. A typical example is constitutional rights and freedoms. Considering the latter in relation to an individual citizen, we translate the normative prescriptions into the plane of legal relations. Each citizen himself determines to what extent he will use the opportunities available to him in accordance with the constitution. The average degree of concretization is observed when not only the subject, but also the object of the legal relationship is individualized. For example, in the legal relationship of ownership, the owner and the thing - the object of ownership are defined. The maximum degree of specification is present in cases where it is known exactly what actions the obligated person must perform in the interests of the authorized person. Here the object, both parties and the content of the legal connection between them are individually established. So, under a work contract (Article 702 of the Civil Code of the Russian Federation), one party (contractor) undertakes to perform certain work on the instructions of the other party (customer) and hand over its result to the customer, and the customer undertakes to accept the result of work and pay for it. The legal relationship has a structure that is complex in composition of elements. It includes the subject, object and content of the relationship. 2. The content of the legal relationship The content of the relationship has a dual character. Distinguish between legal and factual content. The legal content of the legal relationship is the possibility of certain actions of the authorized person, the need for certain actions or the need to refrain from prohibited actions of the obligated person, and the actual content is the actions themselves, in which rights and obligations are realized. Legal and factual content are not identical. The first is richer than the second, includes an indefinite number of possibilities. For example, a person with a secondary education has the right to enter a university, that is, he has a large choice of opportunities that make up the content of his subjective right. However, it is really possible to enter only one university, subject to the successful passing of the entrance exams. Thus, the actual content is only one of the possible options for the implementation of a subjective right. The content of the legal relationship (we repeat) is subjective legal rights and obligations. The subjective right and the duty corresponding to it form a legal connection between the authorized and the obliged parties. Moreover, a legal relationship may consist of one or more legal ties. For example, a legal relationship arising on the basis of a sales contract includes at least two legal ties: the first is the buyer's right to receive the goods and the seller's obligation to transfer the goods to the buyer; the second - the right of the seller to receive money for the goods and the obligation of the buyer to pay for it the amount agreed in the contract. There are two types of legal relations: relative, arising between individuals (subjects of law), and absolute - between the subject of law and society (each and everyone). A subjective right is a measure of possible behavior provided for an authorized person in order to satisfy his interests, secured by the legal obligations of other persons. What are the features of this right? 1. Subjective right is a measure of possible behavior. Measure means the limit, the limit of the manifestation of something. With regard to subjective law, the measure includes the type and size of possible behavior. For example, the law regulating the right to paid leave (Articles 66, 67 of the Labor Code of the RSFSR) determines both the type of behavior (annual leave with the preservation of average earnings) and its size (duration of leave). A subjective right is a possible behavior, i.e., the bearer of a subjective right always has a choice: to act in a certain way or to refrain from acting. 2. The content of the analyzed law is established by the rules of law and legal facts. 3. The exercise of a subjective right is secured by the obligation of the other party. In some cases, this obligation consists in refraining from actions that violate the subjective right of the other party, in others, this right is ensured by the fulfillment of the obligation, i.e., by the active actions of the obligated person. 4. A subjective right is granted to an authorized person to satisfy his interests; in the absence of the latter, the incentive for exercising the subjective right is lost. 5. This right consists not only in the possibility, but also in the legal or actual behavior of the authorized person. Subjective law is a complex phenomenon that includes a number of powers: a) the right to own actual actions aimed at using the useful properties of the object of right (for example, the owner of a thing has the right to use it for its intended purpose); b) the right to take legal action, to make legal decisions (the owner of a thing can pledge it, donate it, sell it, bequeath it, etc.); c) the right to demand from the other party the fulfillment of an obligation, i.e. the right to other people's actions (the lender has the right to demand the return of money or things from the borrower); d) the right to claim, which consists in the possibility of setting in motion the apparatus of coercion against the obligated person, i.e. the right to enforce the obligation (the debt can be collected by force, the worker or employee can be reinstated at work). A legal obligation is a measure of necessary behavior prescribed to an obligated person and provided with the possibility of state coercion, which he must follow in the interests of the authorized person. A legal obligation has the following features. 1. It is a measure of required behavior, a precise definition of what it should be. Compliance with such a measure is mandatory, because the obligation is provided with the possibility of state coercion (if the obligation consists in paying the debt, then the amount of the debt, the payment period, etc., must be precisely determined). 2. It is established on the basis of legal facts and the requirements of legal norms. 3. The obligation is established in the interests of the authorized party - an individual or society (state) as a whole. 4. Duty is not only (and not so much) an obligation, but also the actual actual behavior of the obligated person. 5. The obligated person has no choice between performance and non-performance of the obligation. Failure to perform or improper performance of a legal obligation is an offense and entails measures of state coercion. Legal obligation has three main forms: - refraining from prohibited actions (passive behavior); - performance of specific actions (active behavior); - undergoing restrictions on the rights of a personal, property or organizational nature (measures of legal liability). Subjective right and obligation are inextricably linked. There is no subjective right that is not secured by an obligation, and there is no obligation that the right would not correspond to. Just as a magnet does not "live" when one of the poles is missing, so the legal relationship does not exist if there is no either an authorized or an obligated party. This unity can be traced in the actions of people. Actual conduct is both a right for one party and an obligation for the other. For example, payment in an increased amount of overtime work is the responsibility of the administration, receiving such payment is the right of the worker. 3. Subjects of law The subjects of law are individuals or organizations that, on the basis of legal norms, can be participants in legal relations, i.e., bearers of subjective rights and obligations. Legal personality is the ability (opportunity) to be a participant in legal relations provided for by the norms of law. It is a complex legal property, consisting of two elements - legal capacity and legal capacity. Legal capacity is the ability (possibility) of a person to have subjective rights and legal obligations provided for by the rules of law. Legal capacity - the ability and legal possibility of a person, provided for by the norms of law, to acquire rights and obligations, to exercise and fulfill them by their actions. Varieties of legal capacity are bargaining ability, i.e. the ability (opportunity) to personally, through their actions, make civil law transactions, and tortiousness - the ability to bear legal responsibility for a committed offense provided for by the rules of law. The distinction between legal and legal capacity is mainly characteristic of civil law, since the legal capacity of a citizen arises at the time of his birth, and legal capacity - upon reaching a certain age. How, then, are the rights exercised and obligations fulfilled if the party to the legal relationship is an incompetent person? In such cases, the missing elements of legal personality are performed by other persons. In civil law, there is an institution of representation. The representative, by his actions, realizes the rights and performs the duties on behalf of the legally incompetent participant in the legal relationship. In other legal branches, legal capacity and legal capacity are not separated, it is understood that they appear in a citizen at the same time and his legal status is characterized by a single legal capacity or, in other words, legal personality. The circle of persons with legal personality is determined by specialized norms. For example, in accordance with Part 1 of Art. 13 of the Family Code of the Russian Federation, the marriageable age is set at eighteen years. If there are valid reasons, local governments at the place of state registration of marriage have the right, at the request of persons wishing to marry, to allow persons who have reached the age of sixteen years to enter into marriage (part 2 of article 13 of the RF IC). Individuals (citizens of the Russian Federation, foreign citizens, stateless persons, persons with dual citizenship), organizations and social communities can be subjects of law. Citizens are the most numerous subjects of law, they enter into various legal relations: civil, family, labor, land, financial, procedural and others. From the social and legal activity of a citizen depends on his position in society, social group, labor collective, his success in life. The legal status of Russian citizens as a whole is characterized by their legal status, which includes legal personality and fundamental rights, freedoms and obligations enshrined in the Constitution of the Russian Federation. The legal status of Russian citizens fully complies with the standards of human rights enshrined in acts of international law. By virtue of Art. 17 of the Constitution of the Russian Federation, fundamental human rights and freedoms are inalienable and belong to everyone from birth. According to Art. 18 they are directly acting. Rights and freedoms determine the meaning, content and procedure for the application of laws, the activities of the legislative and executive authorities, local self-government and are provided by justice. The Constitution of the Russian Federation establishes and guarantees the equality of all before the law and the court, the right to life, the protection of the dignity of the individual, the right to liberty and security of person, the inviolability of private life, housing, freedom of movement, choice of places of stay and residence, freedom of conscience, thought and speech, assembly , rallies and demonstrations, the right to association, participation in the management of state affairs, freedom of entrepreneurial activity, protection of the right to private property, including land. Everyone has the right to freely dispose of his abilities to work, has guarantees of social security, the right to housing, health care, education, freedom of creativity, judicial protection of rights and freedoms. The Russian Constitution establishes obligations: to pay legally established taxes and fees, to preserve nature and the environment, to take care of natural resources, to protect the Fatherland, to perform military service in accordance with federal law. The legal capacity and legal capacity of citizens are usually the same in scope. However, in a number of cases, by law or by a court decision, a person is limited in legal capacity. The legal capacity of minors is regulated by Art. 28 of the Civil Code of the Russian Federation. Paragraph 1 of this article formulates a general rule: for minors under the age of fourteen (juveniles), transactions can be made on their behalf only by their parents, adoptive parents or guardians. There is an exception to this rule (clause 2, article 28 of the Civil Code of the Russian Federation): - juveniles aged six to fourteen years have the right to independently make small household transactions; - transactions aimed at gratuitous receipt of benefits that do not require notarization or state registration; - transactions for the disposal of funds provided by a legal representative or with the consent of the latter by a third party for a specific purpose or for free disposal. From the content of Art. 28 of the Civil Code of the Russian Federation it follows that the law considers children under six years of age to be completely incompetent. The legal capacity of minors between the ages of fourteen and eighteen is defined in Art. 26 of the Civil Code of the Russian Federation. The general rule established in paragraph 1 of the said article reads: minors between the ages of fourteen and eighteen make transactions with the written consent of their legal representatives - parents, adoptive parents or guardian. There are exceptions to this rule. First, as provided for in paragraph 2 of Art. 26 of the Civil Code of the Russian Federation, minors have the right to independently, without the consent of their parents, adoptive parents and guardian, dispose of their earnings, scholarships and other incomes; to exercise the rights of the author of a work of science, literature or art, an invention or other legally protected result of his intellectual activity; in accordance with the law, make deposits in credit institutions and dispose of them; make petty household and other transactions provided for minors in paragraph 2 of Art. 28 of the Civil Code of the Russian Federation. Secondly, upon reaching the age of sixteen, minors are entitled to be members of cooperatives in accordance with the laws on cooperatives. Thirdly, a minor who has reached the age of sixteen can be declared fully capable if he works under an employment contract, including under a contract, or, with the consent of his parents, adoptive parents or guardian, is engaged in entrepreneurial activity (Article 27 of the Civil Code of the Russian Federation). The declaration of a minor as fully capable is called emancipation and is made by decision of the guardianship and guardianship body - with the consent of both parents, adoptive parents or guardian, and in the absence of such consent - by a court decision. Citizens who, due to a mental disorder, cannot understand the meaning of their actions or control them (Article 29 of the Civil Code of the Russian Federation) are recognized by the court as incompetent. The law also provides for the possibility of restricting the legal capacity of citizens who abuse alcohol or drugs (Article 30 of the Civil Code of the Russian Federation). A person with limited legal capacity may make transactions (with the exception of small household ones) on the disposal of property only with the consent of the trustee. Foreign citizens and stateless persons may be subjects of labor, civil, procedural and other legal relations, but they do not have voting rights, they are not subject to military duty, some articles of the Criminal Code (for example, on treason), etc. In addition to the general (constitutional) legal status, different citizens have a special status, which is determined by more specific laws: for example, the status of a worker, military man, police officer, student, pensioner, etc. Now the status of a refugee, a foreign worker, an unemployed person needs careful legislative development. etc., which is dictated by the new realities of Russian life. The subjects of law include state and non-state organizations, the state as a whole. State organizations are created to perform a variety of functions. As subjects of law, they can be divided into three groups: 1) state bodies that perform the functions of management and have power. Most often they act as subjects of administrative, land, criminal law, procedural legal relations. The legal status of state bodies is characterized by competence, i.e., a set of rights and obligations provided for by the relevant regulations; 2) institutions engaged in socio-cultural activities not related to government powers. Such institutions (schools, hospitals, universities, libraries, theaters, museums, etc.) are on the state budget, are endowed with a set of rights and obligations to perform their functions; 3) enterprises engaged in economic activities, operating on the right of economic management (unitary enterprises) or on the basis of operational management (state-owned enterprises). The state bears subsidiary liability for their obligations (clause 3, article 56 and clause 5, article 115 of the Civil Code of the Russian Federation). State organizations act in civil law relations as legal entities, performing functions that are not related to authority. In accordance with Art. 48 of the Civil Code of the Russian Federation "a legal entity is an organization that owns, manages or manages separate property and is liable for its obligations with this property, can acquire and exercise property and personal non-property rights on its own behalf, bear obligations, be a plaintiff and a defendant in court." Many non-state organizations (economic partnerships and societies, production and consumer cooperatives, public, religious organizations, etc.) also receive the rights of legal entities. Non-governmental organizations operate not only in the sphere of economy, but also in the sphere of politics (parties), protection of the rights of citizens (legal consultations, consumer protection societies, trade unions), act as subjects of law in state-legal, administrative-legal, labor, procedural and other relations. The state as a whole acts as a subject of law in state-legal (interstate, between republics and the Federation) and some property (when issuing bonds of an intrastate loan, in relation to the ownership of ownerless property, treasures, etc.) relationships, is the owner enterprises of industry, transport, communications, etc. Social communities (people, nation, population of the region, labor collective) are subjects of law in special cases provided for by law. For example, the people directly exercise their rights through a popular vote (referendum). In accordance with Art. 130 of the Constitution of the Russian Federation, local self-government ensures that the population independently resolves issues of local importance, possession, use and disposal of municipal property. However, most often social communities act through state and public organizations. 4. Object of legal relationship The object of a legal relationship is that real good, the use or protection of which is directed by subjective rights and legal obligations. For example, Art. 88 of the Labor Code of the RSFSR provides for increased overtime pay. The money paid is the object of this legal relationship. Moreover, the worker has the right to increased wages, and the enterprise is obliged to produce it. The object of the legal relationship is closely connected with the interest of the authorized party and is a benefit that is at its disposal and protected by the state. Objects can be a variety of items that are of value to the subject of law. For example, according to housing legislation for a tenant, an object is a living space necessary for him to live. In accordance with Art. 35 of the Constitution of the Russian Federation, everyone has the right to own property, own, use and dispose of it individually or jointly with other persons. By virtue of Art. 36 of the Constitution, citizens and their associations may own land. According to the previous legislation, under the dominance of socialist social relations, the state had a monopoly on the ownership of many objects. Only it had and could have land, industrial enterprises, transport, communications, schools, hospitals and much, much more on the right of ownership. A citizen could not own the listed objects, and his property rights were strictly regulated and limited. For example, according to Art. 106 of the Civil Code of the RSFSR of 1964, one residential house (or part of one house) could be in the personal property of a citizen; spouses living together and their minor children could have only one residential house (or part of one house), owned by the right of personal ownership of one of them or located in their common property; in an apartment building of a housing cooperative, spouses living together and their minor children could have only one apartment: the maximum size of a residential building or its part (parts) owned by a citizen on the right of personal property should not exceed 60 sq. m of living space. However, a citizen with a large family or the right to additional space could be allowed by the executive committee of the district or city Soviet of Workers' Deputies to build, acquire or retain ownership of a larger house (part of the house). In this case, the living space should not exceed the size determined for a given family according to the norms for tenants in the houses of local Soviets of Working People's Deputies, taking into account the right to additional space. Legislation established limits on the size of household plots, livestock in personal ownership, etc. The objects of legal relations are objects of spiritual creativity (for example, the object of copyright - a work created by the author), various intangible benefits (the right to personal and family secrets, privacy of correspondence, telephone conversations, postal, telegraph and other messages, etc.). One and the same good can be the object of various legal relations. So, a thing can be an object of ownership, legal relations of sale, pledge, inheritance, insurance, etc. The rights and obligations as elements of the legal content are clearly delineated, separated, and the rights and obligations as elements of the actual content are combined: - the transfer of a thing is both the right of the buyer and the obligation of the seller; - the transfer of money is both the right of the seller and the obligation of the buyer. 5. legal facts Relationships are dynamic. They arise, change, cease, are realized. The dynamics of legal relations is connected with real life circumstances, i.e. with legal facts. Legal fact - a specific life circumstance, with the onset of which the rule of law connects the emergence, change, termination of legal relations. The facts under consideration are called legal, since they are provided for in the rules of law: directly - in a hypothesis, indirectly - in a disposition, sanctions. As soon as the facts indicated in the hypothesis of the norm appear in life, the latter begins to act, that is, the persons - the addressees of the norm - acquire the rights and obligations named in its disposition. The disposition of a permissive or binding legal norm prescribes what the behavior of the active party may or should be. The actions of persons performed in accordance with the provisions of the disposition of a legal norm are legal facts that implement rights and obligations. Therefore, fixing the rights and obligations, the disposition indirectly points to legal facts. In addition, the facts are called legal because, together with the rules of law, they determine the specific content of the mutual rights and obligations of the parties. For example, the content of the rights and obligations of the buyer and the seller is established not so much by a norm of civil law as by an agreement between the parties, and the latter is a legal fact. Very often, for the emergence of a legal relationship, an actual composition is required, i.e. a combination of two or more legal facts, the presence of which is necessary for the onset of legal consequences (for example, for the emergence of a pension legal relationship, it is necessary to reach a certain age, have a length of service and a decision of the social security authorities on the appointment of a pension ). Often, the rules of law associate legal consequences not only with the presence of a particular circumstance, but also with its absence. A typical example of such a connection is the failure to fulfill an obligation, which is the basis for the emergence of a procedural relationship in order to protect the violated right. Facts that testify to the absence of any circumstances or actions are called negative in legal science. Classification of legal factsLegal facts represent a variety of life circumstances, and therefore they can be classified on various grounds. The most important is the division of legal facts according to the consequences that they entail, and their volitional content. According to the consequences, legal facts are divided into law-forming, law-changing and law-terminating. Law-forming facts cause the emergence of legal relations. These are civil law transactions, the conclusion of an employment contract, marriage in accordance with family law, the commission of criminal acts that cause criminal law relations, etc. Law-changing facts change legal relations. For example, a transfer to another job changes the content of the labor relationship between the parties, although in general the legal relationship is preserved. Law-terminating facts cause the termination of legal relations. These are the actions of a person to exercise a subjective right or fulfill a legal obligation. However, the legal relationship can be terminated not only as a result of the realization of subjective rights and obligations, but also as a result, for example, of the death of a person (the subject of the right), the death of a thing (the object of the legal relationship). One and the same fact can cause several legal consequences. In particular, the death of a citizen can simultaneously cause the emergence of legal relations by inheritance, the termination of an employment relationship, a change in the legal relationship for renting a dwelling. On a volitional basis, legal facts are divided into events and deeds (action or inaction). Events are such legal facts, the occurrence of which does not depend on the will of the subjects of the legal relationship (fire from a lightning strike, expiration, natural death of a person, etc.). Actions are volitional acts of people's behavior, the external expression of their will and consciousness. They may or may not be legal. Lawful actions are carried out within the framework of the prescriptions of the current regulations. They are divided into individual legal acts and legal acts. Individual legal acts are outwardly expressed decisions of people aimed at achieving a legal result. These include acts of application of law, agreements between organizations, civil law transactions, statements of citizens and other expressions of will that cause legal consequences. Legal actions are the actual behavior of people, which is the content of real life relations (for example, the performance of labor duties, the transfer of things and money under a contract of sale). Legal actions cause legal consequences, regardless of whether they were aimed at achieving these consequences or not. Wrongful acts are crimes and misdemeanors that go against the legal prescriptions. Inaction is passive behavior that has no external expression. Inaction can be lawful (compliance with prohibitions) and unlawful (failure to fulfill obligations). 6. Types of legal relations The classification of legal relations is carried out on various grounds. First of all, legal relations, as well as legal norms, can be divided by industry into constitutional, civil law, administrative law, etc. This division is based on the specifics of certain areas of social relations. By the nature of the content of legal relations are divided into general regulatory, regulatory and protective. General regulatory legal relations appear directly from the law. They arise on the basis of legal norms, the hypotheses of which do not contain indications of legal facts. Such norms give rise to the same rights or obligations for all addressees without any conditions (for example, many constitutional norms). Regulatory norms containing in the hypothesis an indication of legal facts also give rise to the same legal-subject opportunities guaranteed by the state for all addressees. The ability to have subjective rights and bear legal obligations is a right of a special kind, an element of a general regulatory legal relationship. Regulatory legal relations are brought to life by the rules of law and legal facts (events and lawful actions). They can also arise in the absence of normative regulation on the basis of an agreement between the parties. Protective legal relations appear on the basis of protective norms and offenses. They are associated with the emergence and implementation of legal liability provided for in the sanction of the protective norm. Depending on the degree of concretization (individualization) of subjects (parties), legal relations can be relative and absolute. In relative terms, both parties are specifically (by name) defined (buyer and seller, supplier and recipient, plaintiff and defendant). In absolute terms, only the entitled party is named, and the obligated party is each and everyone whose duty is to refrain from violating subjective rights (legal relations arising from property rights, copyright). According to the nature of the obligations of legal relations are divided into active and passive. In legal relations of an active type, the obligation of one party is to perform certain positive actions, and the right of the other is only to demand that this obligation be fulfilled. In legal relations of a passive type, the obligation is to refrain from actions prohibited by legal norms. Chapter 24 1. The concept of interpretation The implementation of law, that is, the implementation of legal prescriptions into practice, into people's behavior, is impossible without understanding the content of legal norms, clarifying the will of the legislator contained in them. This process of revealing the will in legal science and practice is defined by the concept of "interpretation of law". The interpretation of law is an intellectual-volitional activity to establish the true content of legal acts in order to implement and improve them. Interpretation is not an ordinary thought process, not just an act of cognition, but an activity (intellectual-volitional, organizational), a process that takes place in time. It includes two independent components: clarification and clarification. Clarification is the process of understanding, awareness of the content of the norms "for oneself". Explanation is an explanation, bringing the learned content to others. Various points of view regarding these elements have been expressed in the legal literature. Some scholars considered interpretation only as a clarification, while others reduced it exclusively to clarification. Attempts have been made to determine the main, defining among the two components. Such a formulation of the question seems to be incorrect both from a scientific and practical point of view. Clarification and clarification are two dialectically related sides of a single process. Clarification precedes, accompanies and completes explanatory procedures, because before explaining the content of the norm to others, the interpreter must understand, understand its content for himself. Moreover, the explanation is not the result and not the purpose of interpretation. It is carried out so that the content of the act is clear, "understood" by other persons - the subjects of implementation. At the same time, it should be remembered that the interpretation of law is carried out not for the sake of ordinary knowledge, the study of legal norms, but for the purpose of their implementation. This circumstance gives specific features to the process under consideration. A deeper analysis allows us to characterize the interpretation of law as a specific activity, as a special social phenomenon, as a kind of factor in legal culture, the moment of existence and development of law, a necessary condition for legal regulation. The need for interpretation as a process also takes place in some other areas of human activity, when the text cannot be accessed, understood without appropriate operations for the interpretation of terms, language signs (translation of texts from one language to another, interpretation of musical notes, chemical formulas, etc. .). Interpretation also means the art of comprehending the meaning of signs transmitted by one consciousness and perceived by other consciousnesses through their external expression (gestures, postures, texts, speech). Unlike other types of interpretation, the interpretation of law is a special activity, whose specificity is determined by a number of factors: - firstly, this activity is connected with the interpretation not of any written sources, but of legal acts, i.e. its object is law - a specific reality that has special features, properties, principles of functioning; - secondly, interpretation in law, with the aim of implementing legal prescriptions, also acts as a necessary condition for legal regulation; - thirdly, in cases established by law, this activity is carried out by competent state bodies; - fourthly, the results of the interpretation, when they need to be given a mandatory meaning, are fixed in special legal (interpretative) acts. The special nature of interpretation in law requires not only specific methods and technologies of interpretation, but also a certain methodological approach. First of all, we must bear in mind the dual nature of this phenomenon. Law, by virtue of its inherent formal certainty, is contained in acts - formal, written sources. And from these positions, the interpretation of law does not differ from the interpretation of other written documents. In all cases, reading any text comes down to mastering the given text, to understanding by the reading subject of the meaning contained in it. But if interpretation in law were limited only to understanding the texts of legal acts, it would not have much significance. A feature of law is its effective nature. The law lives when it is fulfilled, realized in the behavior of people. However, the implementation of a formal legal imperative is possible only if the addressee understands its content, its transition into the inner desire, consciousness of the individual. It is no coincidence that law, legal regulation is characterized by the presumption of knowledge of the law - the assumption that the subjects of law, its addressees "know" (ie, realize, understand) the content of legal prescriptions. And this inevitably involves their interpretation. Of course, the understanding of the content of legal prescriptions is also possible without regard to their implementation. Such is the scientific interpretation of the ancient sources of law (the laws of Hammurabi, Russkaya Pravda, etc.). However, such an understanding of the texts of normative acts is no different from understanding the content of any written sources. For example, the laws of the XII tables, the oldest monument of Roman law, are studied and understood not by the text of the act itself, but by quotations and retellings of later authors. But such an interpretation cannot be characterized as a specific activity of lawyers. The essence of interpretation as a specific activity lies in the peculiarities of law itself as a social phenomenon. These properties are such that they necessitate interpretation. These are normativity, obligatoriness, consistency, formal certainty, state coercion. The basis of law is norms - rules of a general nature. Moreover, the normativity of law is of a special kind, since it is an equal scale applied to actually unequal people. Since the law is universal, and the case to which it applies is single, the subjects implementing it are individual, it is necessary to interpret the general norm, to find out whether it can be used in a particular case and in relation to specific subjects. The subject of implementation always "trying on" the general rule to specific facts, personality, taking into account the peculiarities of the place, time, etc. By interpreting the norm, he thereby determines whether and to what extent it is applicable to a specific case, a specific person. It is impossible to bring the general under the singular without clarifying the latter. Law is a specific social phenomenon that has its own patterns of development, forms of manifestation and implementation, structure, constructions, principles, methods, types of regulation, etc. These features also require special efforts to clarify the content of law. It is not only about interpretation, understanding of special legal terms, but also about taking into account the peculiarities of legal regulation. The need for interpretation in law is also caused by possible contradictions between its form and content. The content of the law finds its expression in normative legal acts, which do not always correctly express the will of the legislator. The low level of legal technique, shortcomings of the technical order lead to gaps, contradictions, and distortion of the content of law. In such a case, interpretation is a condition for knowing the true content of legal prescriptions. The opinion was expressed in the literature that only vague norms should be interpreted, while clear, understandable interpretations are not required. This view seems to be controversial. Indeed, in order to determine whether a given norm is understandable, clear, it is necessary to understand, understand, and interpret it. The interpretation of law is also necessary because of the contradiction between the formal nature of legal norms and the dynamics of social relations. By virtue of formal certainty, legal prescriptions remain unchanged, stable until they are changed. At the same time, social life is constantly changing. Therefore, the law is often applied in conditions that have significantly changed compared to the moment of its publication. 2. Ways (techniques) of interpretation of legal norms The specificity of legal interpretation requires the use of special procedures, technologies, and methods in this process. Under the methods of interpretation is understood the totality of techniques and means used to establish the content of the rules of law. In legal science and practice, the following methods are distinguished (some authors call them "techniques") of interpretation: grammatical, logical, systematic, historical-political, special-legal, teleological and functional. Grammar interpretationEvery legal act is the thought of the legislator expressed in words. Words expressing a thought have an independent meaning. However, they are with other words in a certain logical connection, as a result of which they acquire a limited and subordinate to the general structure of meaning. Therefore, when interpreting the law, first of all, there is a need to clarify the terminological or grammatical content of individual concepts that make up its essence. This process is connected with the clarification of the meaning of individual concepts and terms of the normative act. After understanding the meaning of words and terms, the meaning of the sentences is established, through which the rule of law is formulated. To do this, the grammatical forms of words (gender, number, case ...) are compared, connections between words and sentences are revealed, the syntactic and morphological structure of sentences is established (punctuation marks, connecting and disconnecting unions, etc.). Insufficient knowledge of the rules of grammar, their incorrect interpretation lead to an inaccurate understanding of the content of the norm, and, consequently, to its violation in the process of implementation. An example is the well-known royal decree "You cannot be pardoned". The lack of punctuation at all makes this command impossible. But even with a comma, you need to know the rules of grammar in order to understand the content of the phrase. How, for example, to interpret the legal prescription "Exempt from paying value added tax organizations of disabled people, veterans of war and labor ..."? Does the word "organizations" refer to veterans of war and labor, or does it refer only to organizations of the disabled? To understand the meaning of a normative act, a syntactic analysis of the sentence, the form of the verb used, etc. is needed. For example, Art. 267 of the Merchant Shipping Code provides for a person to receive remuneration for saving the property of the ship's passengers. On the contrary, Art. 472 of the Civil Code of the RSFSR of 1964 provided for compensation for damage incurred during the rescue of property. The following statement by the Russian lawyer N. Tagantsev is interesting: “The agreement of words in gender and case, the use of the singular or plural, the single or multiple form of verbs, the punctuation used in the law, etc. - all this can help to clarify the meaning of the law, so how, on the one hand, the law must be understood first of all as it is written, and on the other hand, we always assume that the legislator knows the language in which he writes, and that he writes according to the laws and rules of this language. Logical interpretationThis is the interpretation of a legal act according to its meaning using the laws of logic. It is through this method that the entire scope of the content of the norm is established, and the ambiguities in it are eliminated. If the grammatical interpretation aims to clarify the literal content of what is enshrined directly in the text, then the logical interpretation aims to reveal, using the rules of formal logic, what the legislator wanted to express in the text of the law, but did not express. Of course, for this, the interpreter must know the laws of logic, various logical techniques, etc. In regulations, for example, the term "cold weapons" is used. How to interpret the act if a weapon heated to a high temperature was used? Will it be "cold"? Logical analysis allows us to conclude that edged weapons are not characterized by temperature at all. The pair categories of "cold" here are the terms "firearms", "gas", and not "hot", "warm", etc. And yet, using the rules of formal logic alone, it is impossible to establish all the connections of the interpreted norm with other norms, its purpose and goals, and the socio-political content in given historical conditions. Therefore, in order to cognize the content of the norms of law, along with the rules of formal logic, the laws of dialectical logic are used. These laws are also applied in the process of systematic and historical-political interpretation. Systematic interpretationThe existence of this method of interpretation is predetermined by the systemic nature of law. It consists in understanding the meaning of a particular norm by comparing it with other norms. The norms of law do not exist independently of each other, and therefore, for a deep and complete understanding of the meaning of the norm, its internal analysis is not enough, but it requires a study of its content, its connections with other norms. Yes, Art. 120 of the Constitution of the Russian Federation states that "judges are independent and subject only to the Constitution of the Russian Federation and federal law." It is not clear from the text of the article whether this rule applies to people's assessors, who, according to the Code of Civil Procedure (Article 15) and the Code of Criminal Procedure (Article 15), are members of the court. For the correct solution of this issue, we turn to Art. 119, which establishes that citizens of the Russian Federation who have reached the age of 25, have a higher legal education and work experience in the legal profession for at least five years can be judges. Therefore, in Art. 120 of the Constitution it is only about the independence of judges. Thanks to a systematic method, it is possible to identify the legal force of a legal norm, its scope, belonging to a particular industry, institution of law. Often the text of a normative act itself contains grounds for systematic interpretation. In particular, one has to resort to it when implementing blanket and reference norms. Historical and political interpretationThe materialistic approach to law assumes that the content of law, legal relations can be correctly understood only in close connection with the social relations that give rise to them. The implementation of legal prescriptions is impossible without revealing their political and socio-economic content in specific historical conditions. Such an interpretation is all the more necessary in conditions where the law is outdated and does not reflect the objective conditions of the time of its application. So, quite recently, in the Union and Russian legislation (criminal and administrative), speculation, parasitism, etc. were recognized as offenses. Legal norms reflected the legislator's view of these acts, which corresponded to the economic, social and political nature of socialism. On December 25, 1990, the Law on Enterprises and Entrepreneurial Activities (entered into force on January 1, 1991) allowed any activity aimed at making a profit (including buying for the purpose of resale). In the criminal and administrative legislation, however, the elements of speculation remained until February 28, 1991, that is, until amendments were made to the law. How were the relevant authorities supposed to make decisions when, on the one hand, the legislation allowed activities, and on the other, prohibited them under threat of punishment? Here it was necessary to take into account the socio-economic and political situation in the country (transition to the market, development of private initiative, etc.). Special legal interpretationThe expression of the authoritative will of the legislator, contained in the rules of law, is carried out not only with the help of commonly used words, but also with specific terms. In this case, various legal and technical means and techniques are used, various methods, methods and types of legal regulation are taken into account. The foregoing determines the need for special legal knowledge that the interpreter applies when interpreting the norms. First of all, this concerns the interpretation of special terms (trust, emancipation, acceptance, committent, etc.). However, the method under consideration is not limited to the interpretation of terms (then it would be identified with grammatical interpretation). Its content is much broader. The interpreter must take into account the peculiarities of legal regulation, legal constructions, type of regulation, etc. For example, in conditions of a generally permissive type (“Everything is allowed except what is expressly prohibited”), regulation is carried out by using prohibitive norms, although in fact we are talking about general permission. Without understanding the essence of a generally permissive or permissive type, it is impossible to correctly implement legal norms. Teleological (target) interpretationTeleological (target) interpretation is aimed at clarifying the goals of issuing legal acts. Of course, such an interpretation is not always necessary. However, if the socio-political situation in the country changes dramatically, the specifics of the circumstances of the case, it is impossible to make the right decision without clarifying the purpose. Sometimes the legislator defines the goals of the adopted normative act directly in its text. Thus, in the preamble of the Decree of the President of the Russian Federation of March 7, 1996 "On the implementation of the constitutional rights of citizens to land" it is stipulated that this act was adopted "in order to ensure the protection of the constitutional rights of citizens to land." Taking into account the above goals, the subjects of law must interpret (and apply) the provisions of the decree, based on the priority protection of the interests of citizens (and not state bodies or agricultural organizations). Functional interpretationIn some cases, to understand the meaning of the norm, it is not enough to take into account only its formal analysis and general conditions for implementation. Sometimes the interpreter must take into account the conditions and factors under which the norm is implemented. First of all, this concerns the interpretation of the so-called evaluative terms ("good reasons", "substantial harm", "significant damage", "emergency", etc.). Taking into account the peculiarities of the place, time and other factors, the same circumstances can be recognized as respectful or disrespectful, significant or insignificant, etc. Sometimes the legislator directly obliges to take into account various specific conditions, i.e., refer to a functional interpretation. So, in Art. 1101 of the Civil Code of the Russian Federation states that when determining the amount of compensation for moral damage, the requirements of reasonableness and fairness, as well as the actual circumstances under which moral damage was caused, and the individual characteristics of the victim, must be taken into account. When determining the amount of alimony for minor children, the court also takes into account the financial or marital status of the parties and other "worthy circumstances" (Articles 81, 83 of the Family Code of the Russian Federation). In the literature, in some cases, one way of interpretation is preferred to another. Of course, to understand the content of the norm, it is not always necessary to use all methods of interpretation to the same extent. Sometimes you can limit yourself to only grammatical and logical interpretation. However, this does not give grounds to ignore any of these methods, because it happens that it is he who allows you to "put an end" in understanding the content of the norm and correctly apply it in practice. 3. Interpretation results The use of various methods of interpretation allows the interpreter to correctly and fully identify the will of the legislator contained in the text of the normative act. But for legal practice, it is important to clarify the relationship between the true content of the norm and its textual expression, i.e., interpretation by volume. It is a logical continuation and completion of understanding the content of legal norms. The fact is that the "meaning" of the law is not always accurately and clearly expressed in its "letter". The unity of language and thinking, words and concepts does not mean their identity. And this gives rise to the inevitability of not only a literal, but in some cases a widespread and restrictive interpretation. Literal (adequate) interpretation means full compliance of the verbal expression of the rule of law with its actual meaning. Most of the rules are interpreted literally. For example, in Art. 37 of the Law of the Russian Federation on Banks and Banking Activities says that "bank depositors may be citizens of the Russian Federation, foreign citizens and stateless persons." Here, the verbal expression and the actual content coincide in volume, the subjects of this legal relationship are listed in full. With a widespread interpretation, the content (meaning) of the interpreted norm turns out to be wider than its textual expression. The list of cases that require a broad interpretation is often accompanied by the expressions "etc", "and others". Yes, Art. 150 of the Civil Code of the Russian Federation gives a list of intangible benefits: "life, health, personal dignity, personal integrity, honor and good name" ... and further determines that these include "other personal non-property rights and other intangible benefits", thereby opening opportunities for broad interpretation. A widespread interpretation is possible without an indication of this in the law. In particular, art. 1068 of the Civil Code of the Russian Federation provides for liability for harm "caused to a citizen or legal entity as a result of illegal actions of state bodies, local governments or officials." Will the damage be compensated if the damage was caused not to a citizen, but to a foreigner or a stateless person? Apparently, here the word "citizen" should be given a widespread interpretation. At the same time, a widespread interpretation should not be identified with the application of law by analogy. With the analogy of the law, certain facts are not covered not only by the meaning, but also by the letter of the law, because the legislator did not provide for these (similar) circumstances at all. With a widespread interpretation, the facts relevant to the case are covered by the meaning of the legislation, although they have not received an accurate and complete fixing in the text of the normative act. With a restrictive interpretation, the content of the rule of law turns out to be narrower than its textual expression. So, in Art. 34 of the Family Code of the Russian Federation states that "property acquired by spouses during marriage is their joint property." However, it is not uncommon for spouses, without dissolving the marriage, to live separately. Is the property acquired by them joint under such conditions? In this case, apparently, it is necessary to interpret the rule of law restrictively (ie, not all property acquired during marriage is joint property). Rules of law are interpreted adequately (literally), restrictive and expansive interpretation is usually an exception to the general rule. Often these types of interpretation are the result of the imperfection of the legislation, the presence of gaps in it, unclear wording, etc. But sometimes the legislator allows this possibility deliberately. However, since in such cases the possibility of a literal interpretation is not excluded, the uniform implementation of legal norms is difficult. 4. Subjects of interpretation The rules of law are interpreted by all subjects implementing them. However, the legal meaning of the results of interpretations differs depending on who interprets the rules of law. Therefore, it is important to classify the types of interpretation according to its subjects. On this basis, official and unofficial interpretations are distinguished. The official interpretation is made by the competent state authorities, and its results are binding on all subjects of law. In turn, it is divided into authentic and legal. Authentic interpretation is performed by the body that issued the normative act. He does not need any special permission to interpret his own acts. He does this by virtue of his competence. The law-making body gives an authentic interpretation both in the text of the act itself (definitive norms) and in special acts. For example, certain provisions of the Civil Code were explained in the Federal Law "On the Enactment of Part One of the Civil Code of the Russian Federation." Legal interpretation is carried out by a body specially authorized by law. Yes, Art. 126 of the Constitution of the Russian Federation indicates that the Supreme Court of the Russian Federation "provides clarifications on issues of judicial practice." Similar explanations are given by the Supreme Arbitration Court (Article 127 of the Constitution). The exclusive competence of the Constitutional Court is the interpretation of normative acts from the point of view of their compliance with the Constitution. The right of official interpretation (clarification) of the electoral legislation shall be exercised by the Central Election Commission. Special attention should be paid to the interpretation that has interstate significance. Such, in particular, are the international rules for the interpretation of trade terms "Incoterms" issued by the International Chamber of Commerce, containing interpretations of various legal provisions used by participants in international trade. There is also a non-normative official interpretation, i.e., a law enforcement interpretation. The second stage of the enforcement process is the stage at which the rules of law are selected and analyzed (i.e. interpreted). Here the process of interpretation is inextricably linked with the process of application. An unofficial interpretation is also implemented by various subjects, but its results do not have a legal, generally significant meaning. It is divided into ordinary, professional and doctrinal. Ordinary interpretation can be carried out by any subject of law. Its accuracy depends on the level of legal awareness of the subject. Moreover, the state of legality largely depends on the nature of such a "worldly" interpretation, because it is the basis of the legal activity of citizens, their lawful behavior. Professional interpretation of legal norms is given by lawyers. The criterion for highlighting this type of interpretation is not the degree of knowledge of law, but professional activity. Such is, for example, the interpretation carried out by a prosecutor or a lawyer in a trial. Its results are not binding on the court, however, the need for the activity of these participants in the process is enshrined in normative terms (for example, in Article 295 of the Code of Criminal Procedure). Doctrinal interpretation is carried out by legal scholars, legal experts in monographs, scientific comments, articles, etc. The results of doctrinal interpretation are published in special collections containing scientific and practical comments on the legislation in force in a particular area. These comments are used by practitioners. Depending on the stage of legal regulation, interpretation is carried out, it is divided into normative and causal. In the course of normative interpretation, an official explanation of the norm as a whole is given, regardless of its implementation. Such, for example, are the authentic and legal interpretations carried out in the generalization of legal practice. In a causal interpretation, the norm is interpreted in relation to a specific case. These are explanations, judgments about the applicable norms contained in the decisions and rulings of the collegiums of the Supreme Court in individual cases. Types of interpretation are also distinguished by the object of interpretation, which can be either a normative act as a whole or a separate norm. Thus, in the resolution of the Constitutional Court of the Russian Federation of July 31, 1995, an interpretation of the decree of the President of the Russian Federation of November 30, 1994 "On measures to restore constitutional legality and law and order on the territory of the Chechen Republic" is given. The ruling of April 25, 1995 contains an interpretation of Art. 34 ZhK RSFSR. The object of interpretation can be not only a normative, but also a law enforcement act. Such an interpretation is carried out, for example, by cassation and supervisory authorities. The interpretation of law enforcement acts has its own characteristics. The interpretation of contracts is also specific (Article 431 of the Civil Code of the Russian Federation). Finally, legal practice is also an object of interpretation. So, considering the constitutionality of Art. 209 of the Code of Criminal Procedure of the RSFSR, the Constitutional Court, in its decision of November 13, 1995, indicated that the norm in question "in terms of the meaning attached to it by law enforcement practice, does not comply with the provisions of Article 52 of the Constitution of the Russian Federation." 5. Functions of interpretation Interpretation as a specific legal activity is important for legal regulation, is a necessary condition for the existence and development of law. It performs the following functions: 1. Cognitive function. It follows from the very content, the essence of the interpretation, during which the subjects learn the law, the content of legal prescriptions. 2. Specifying function. When interpreting legal prescriptions, they are often concretized, refined, taking into account specific circumstances (this function is especially pronounced in the process of functional interpretation). 3. Regulatory function. Interpretation in the form of an official explanation, as it were, completes the process of normative regulation of social relations. This means that citizens and organizations, as well as state bodies and officials applying the law, must be guided not only by legal norms, but also by acts of their official interpretation. 4. Law enforcement function. Some acts of interpretation are issued to ensure the unity and effectiveness of law enforcement practice. Such, for example, are the explanations of the Central Election Commission on the procedure for applying the norms of the Law on Elections. 5. Signaling function. The interpretation of normative acts makes it possible to detect their shortcomings of a technical and legal nature. This is a "signal" for the legislator about the need to improve the relevant norms. An interesting idea has been expressed in the literature about the prospective interpretation during which are carried out. interpretation, interpretation, mental "running" of the rules of law at the stage of their development. Ultimately, interpretation as a legal activity serves the task of ensuring the rule of law and increasing the effectiveness of legal regulation. In modern conditions, its relevance has increased significantly. This is explained by the fact that in recent years the legislation has been thoroughly updated, new norms and entire branches, sections of law (for example, private law) have appeared in it. Law-making is now carried out on other principles, new legal terms and structures are used, a completely different type of regulation. In legislative practice, foreign experience is increasingly used. Under these conditions, interpretation should play its role as the most important tool for the knowledge, implementation and improvement of law. interpretation acts. In order to be binding, the results of an official interpretation must be formalized. For this, there are interpretive acts (acts of interpretation), which can be defined as legal acts of the competent state bodies containing the result of an official interpretation. First of all, it should be noted that these acts are legal. They are issued by the competent state bodies, are mandatory, formally fixed, their implementation is provided by the state. This is their similarity with other legal acts (normative and law enforcement). In other respects, interpretive acts are quite different from normative and law enforcement ones. Thus, a normative act contains the norms of law, while an interpretive act only interprets and explains these norms. In other words, interpretation, for all its significance, cannot "create" new norms, and the interpreter cannot replace the legislator. Having no norms of law, an interpretative act is inseparable from an interpreted normative act. They share a common fate: when a normative act loses its legal force, the interpretive act also loses its meaning. An interpretative act differs from a law enforcement act in that the former is associated with the solution of a specific case, and the latter is of a general nature. Science has repeatedly raised the question of the legal nature of acts of official interpretation, whether they contain legal norms. The basis for raising such a question is provided by the current legislation. Yes, Art. 30 of the Law on the Arbitration Court establishes that "explanations of the Plenum of the Supreme Arbitration Court of the RSFSR are binding on the entire system of arbitration courts of the RSFSR." There are similar norms in the Law on the Prosecutor's Office, etc. However, the judicial bodies of Russia do not have law-making competence. Their acts are acts of interpretation. Judicial precedent in our country is not considered a source of Russian law. In science, a solution to this contradiction has been proposed: general prescriptions contained in acts of official interpretation should be considered not as norms of law, but as legal provisions that have legal significance. The latter is manifested in the fact that law enforcement agencies (for example, courts) must take into account the content of legal provisions when solving specific issues. However, legal provisions, not being legal norms, cannot form the basis of law enforcement decisions. Law-making bodies, in turn, should monitor law enforcement practice and promptly make changes to the current legislation, based on the established legal provisions. Since interpretive acts are legal acts, they have the form of expression and are published in official sources. For example, interpretive acts of the Supreme Court of the Russian Federation are issued in the form of resolutions of the Plenum of the Supreme Court and are published in the Bulletin of the Supreme Court of the Russian Federation. The Constitutional Court issues its acts in the form of resolutions, which are published in the Collection of Legislation of the Russian Federation and in the Bulletin of the Constitutional Court of the Russian Federation. The Central Election Commission issues its interpretive acts in the form of explanations, which are published in the Bulletin of the Central Election Commission and Rossiyskaya Gazeta, etc. Chapter 25 legal process 1. Realization of the right The law has meaning and value for the individual, society, if it is implemented. If the right is not put into practice, it inevitably becomes dead. The main purpose of the rules of law is that they help determine the content of the right of the subject and thereby contribute to its implementation. The realization of the law is the implementation of legally fixed and guaranteed by the state opportunities, their implementation in the activities of people and their organizations. The word "realization" comes from the Latin "healis" - material and literally means reification. In our time, implementation is defined as the implementation of something, the implementation of any plan, project, program, intention, etc. The term "implementation of the right" is similar in meaning. Law as something intangible, as a certain possibility is realized, materialized in actions, in the active behavior of people, in the use of material and spiritual values, benefits. At the same time, the implementation of the right has another semantic connotation: the right, unlike other possibilities (plans, programs, intentions, etc.), is characterized by an increased ability to implement, secured by guarantees. The next point, which complicates the analyzed concept, is that the law itself is a multifaceted phenomenon, which includes natural and positive, objective and subjective law. The realization of the right must be understood in view of its diverse content. Realization of law is a complex process that takes place over time. It involves not only the parties, the bearers of subjective rights and obligations, but also the state represented by various bodies: law-making, law enforcement, law enforcement. Realization of the right as a process of translating the right into practice includes, firstly, the legal mechanisms for the realization of the right and, secondly, the forms of the direct realization of the right, when the actual life relations take on a legal form. Legal mechanisms for the implementation of the law are diverse, their content is determined by the peculiarities of the legal system of a particular country. In the Romano-Germanic legal system, the process of law enforcement includes the following stages. The first stage is the construction of natural law into law (positive law), giving it a normative form. The core of natural law is human rights, his social and legal claims arising from the nature of man and society. To realize these claims, it is necessary to have legislative, normative recognition of them by the state. Making human rights into law means: a) their constitutional consolidation; b) their consolidation in the current legislation. At the second stage, various mechanisms for implementing the law are included, with the help of which the provisions of the law are translated into the specific content of subjective rights and legal obligations. These mechanisms are varied: - specification of the law in by-laws of the government, ministries, departments, self-government bodies, etc., in local regulations: - clarification of the norms of the law in acts of official interpretation; - procedural rules governing the procedures for the adoption, application and enforcement of the law; - Diverse acts of application of the law. This also includes the activities of state bodies in the preparation and adoption of legal acts. The third and final stage is the actual realization of the right. It is here that rights turn from possibility into reality, and this transformation occurs at the will of the owner of the right, that is, it depends on the subject of the right whether the right will be realized, when and within what limits. In the Anglo-Saxon legal system, the process of law enforcement proceeds differently. The elevation of legal claims, i.e., natural law, to the rank of a mandatory norm is carried out by the court. The court, considering a specific legal case, carefully analyzes the actual circumstances of the dispute, the claims of the parties and, determining their mutual rights and obligations, resolves the conflict. The normative basis for resolving a case is a precedent - an earlier court decision in a similar case. The mechanism for implementing a legal claim in the Anglo-Saxon legal system is simpler than in the Romano-Germanic one, since it does not require prior legislative consolidation. The danger of judicial arbitrariness should not be exaggerated, because there is always the possibility of appealing a court decision to a higher court. Note that, for example, in England, where Anglo-Saxon law was formed, the highest court is the House of Lords - the upper house of the English Parliament. So, in order to understand what the realization of the right is, it is necessary to understand the following: in principle, only those who have a subjective right, that is, the subject of law, are interested in the realization of the right. All other persons - the obligated party, the law enforcer, the legislator - ultimately act in the interests of the authorized person. The activities of these persons and bodies, the legal norms that regulate this activity, together form a complex and multifaceted mechanism for the implementation of the law. Therefore, the decision of the question of whether the right will be realized or not depends on its holder. Only at his will can be used, put into effect the mechanism for the implementation of the law. It is only important that such a mechanism be available and be able to operate efficiently and effectively. Part of the mechanism for the implementation of the right are mechanisms for the protection of subjective rights, i.e. mechanisms of legal responsibility. In the process of protection, the right is restored, and the possibility of its implementation again appears. To a certain extent, legal responsibility ensures the protection of subjective rights from illegal encroachments and thereby creates the necessary conditions for their implementation. Direct implementation, that is, the exercise of law in actual behavior, occurs in three forms. The first form is observance of prohibitions. Here prohibitive and protective norms are implemented. To comply with prohibitions, it is necessary to refrain from prohibited actions, i.e., passive behavior. So, part 8 of Art. 28 of the Federal Constitutional Law of April 1995, XNUMX "On Arbitration Courts in the Russian Federation" establishes: "No person can be nominated for appointment to the position of a judge without the consent of the relevant qualification board of judges." To comply with the prohibition fixed in this norm, passive behavior is required: refraining from nomination for appointment to the position of a judge, if there is no consent of the relevant qualification board of judges. All protective norms contain a prohibition, which, although not formulated directly, logically follows from the meaning of the norm: if legal liability is established for some actions in the sanction of the norm, then it is obvious that such actions are prohibited by the legislator. Such prohibitions are established by the norms of the Special Part of the Criminal Code and the norms of the Code of Administrative Offenses. The second form is the performance of duties. This is the implementation of binding norms that provide for positive obligations, which requires active behavior: pay tax, deliver goods to the buyer, perform work under an employment contract, etc. For example, in accordance with Part 2 of Art. 385 of the Civil Code of the Russian Federation "a creditor who has assigned a claim to another person is obliged to transfer to him the documents certifying the right to claim and to provide information relevant to the implementation of the claim." The third form is the use of subjective right. In this form, empowering norms are implemented, the dispositions of which provide for subjective rights. So, in part 1 of Art. 209 of the Civil Code of the Russian Federation it is written: "The owner owns the rights of possession, use and disposal of his property." Subjective law involves both active and passive behavior. The subject behaves passively if he refuses to exercise his right. The subjective right can be exercised through the authorized person's own actual actions (the owner of the thing uses it for its intended purpose), through the performance of legal actions (transfer of the thing as a pledge, donation, sale, etc.), through the presentation of a claim against the obligated person (requirement against the debtor repay the debt) and in the form of a claim, i.e. an appeal to the competent state body for the protection of the violated right (if the debtor refuses to repay the debt, the creditor goes to court with a request to collect the debt by force). 2. Application of law The implementation of the law in most cases occurs without the participation of the state, its bodies. Citizens and organizations voluntarily, without coercion, by mutual agreement enter into legal relations, within which they use subjective rights, perform duties and comply with the prohibitions established by law. At the same time, in some typical situations, there is a need for state intervention, without which the realization of the right turns out to be impossible. First, the participation of the state is programmed in advance in the mechanism for the implementation of certain norms. These are, first of all, the norms in accordance with which the state distribution of property benefits is carried out. For example, the realization of the right to a pension includes, as a necessary element, the decision of the commission of the social security body on the appointment of a pension to an individual citizen. The allocation of housing from the municipal or state housing stock requires an individual decision of the authorities of the relevant state body or local government. In the same manner, that is, by making individual decisions of power, citizens and organizations are allocated land plots owned by the state. Secondly, the relationship between state bodies and officials within the state apparatus is mostly in the nature of power and subordination. These legal relations include, as a necessary element, power decisions, i.e., acts of application of law (for example, a decree of the President of Russia on the removal of a minister from office). Thirdly, the law is applied in cases where there is a dispute about the law. If the parties themselves cannot come to an agreement on mutual rights and obligations, they turn to the competent state body to resolve the conflict (for example, commercial disputes between organizations are considered by arbitration courts). Fourthly, the application of law is necessary to determine the measure of legal responsibility for the committed offense, as well as to apply coercive measures of an educational, medical nature, etc. Thus, the application of law is the power activity of the competent authorities and persons in the preparation and adoption of an individual decision on a legal case based on legal facts and specific legal norms. The application of the law has the following characteristics: 1) is carried out by bodies or officials endowed with the functions of state power; 2) has an individual character; 3) is aimed at establishing specific legal consequences - subjective rights, duties, responsibilities: 4) is implemented in specially provided procedural forms: 5) ends with the issuance of an individual legal decision. 3. Stages of application of law The application of the law is a complex process that includes several stages. The first stage is the establishment of the actual circumstances of the legal case, the second is the selection and analysis of the legal norm to be applied, the third is the adoption of a decision on the legal case and its documentation. The first two stages are preparatory, the third - the final, main. At the third stage, an authoritative decision is made - the act of applying the law. 1. The range of factual circumstances, with the establishment of which the application of law begins, is very wide. When committing a crime, this is the person who committed the crime, the time, place, method of committing it, the harmful consequences that occurred, the nature of the guilt (intent, negligence) and other circumstances; in the event of a civil dispute - the circumstances of the transaction, its content, actions taken to fulfill it, mutual claims of the parties, etc. The actual circumstances, as a rule, relate to the past and therefore the law enforcement officer cannot observe them directly. They are supported by evidence - tangible and intangible traces of the past, recorded in documents (testimonies of witnesses, expert opinions, reports of inspection of the scene, etc.). These documents constitute the main content of the materials of the legal case and reflect the legally significant factual situation. The collection of evidence can be the most complicated legal activity (for example, a preliminary investigation in a criminal case), or it can be reduced to the submission of the necessary documents by the person concerned. For example, a citizen who has the right to a pension is obliged to submit documents confirming this right to the commission for the appointment of pensions: about age, length of service, wages, etc. Procedural requirements of relevance, admissibility and completeness are imposed on the evidence, with the help of which the factual circumstances of the case are established. The requirement of relevance means the acceptance and analysis of only those evidence that are relevant to the case, i.e., contribute to the establishment of precisely those factual circumstances with which the applicable rule of law associates the onset of legal consequences (rights, obligations, legal liability). For example, in accordance with Art. 56 of the Arbitration Procedure Code of the Russian Federation, the arbitration court accepts only those evidence that are relevant to the case under consideration. The admissibility requirement states that only the means of proof determined by procedural laws should be used. For example, the factual data reported by a witness cannot serve as evidence if he cannot indicate the source of his knowledge (Article 74 of the Code of Criminal Procedure), an examination is required to establish the causes of death and the nature of bodily injuries (paragraph 1 of Article 79 of the Code of Criminal Procedure) . The requirement of completeness fixes the need to establish all the circumstances relevant to the case. Their incomplete clarification is the basis for the cancellation or change of the court decision (clause 1 of article 306 of the Code of Civil Procedure), the sentence (clause 1 of article 342, 343 of the Code of Criminal Procedure). 2. The essence of the legal assessment of the actual circumstances, i.e., their legal qualification, is to find, choose exactly the rule that, according to the legislator's intention, should regulate the actual situation under consideration. This search occurs by comparing the actual circumstances of real life and legal facts provided by the hypothesis of the applicable legal norm, and establishing an identity between them. This means that for the correct legal qualification of the facts established at the first stage, one should choose (find) a norm (norms) that is directly calculated on these facts. What are the difficulties here? The main difficulty lies in the fact that the norm, the hypothesis of which covers the actual situation, is not always subject to application. To eliminate doubts, it is necessary to analyze the chosen norm, to establish the effect of the law containing this norm in time, in space and in a circle of persons. For example, when determining the operation of a law in time, the following rules must be observed: - "A law establishing or aggravating liability has no retroactive effect" (Part 1, Article 54 of the Constitution of the Russian Federation); - "Laws that establish new taxes or worsen the position of taxpayers do not have retroactive force" (Article 57 of the Constitution of the Russian Federation); - "The effect of the law extends to relations that arose before its entry into force, only in cases where this is expressly provided for by law" (Part 1, Article 4 of the Civil Code of the Russian Federation), etc. Legal qualification facilitates the work of the law enforcement officer in clarifying the range of facts to be established. Not any facts are clarified, but only those that are provided for in the hypothesis of the chosen norm. A typical mistake in this situation is when they begin to "adjust" the facts to the hypothesis of the chosen norm. In legal practice, clarification of additional circumstances often leads to a change in legal qualifications. Analysis, interpretation of the chosen norm of law involves referring to the official text of the relevant normative act, familiarization with possible additions and changes to its original wording, as well as official explanations of the meaning and content of the applicable norm. An analysis of the law is also necessary to make the right legal decision, which must meet the requirements of the disposition (sanction) of the applicable norm. 3. The content of a decision in a legal case is determined mainly by its actual circumstances. At the same time, when making a decision, the law enforcer is guided by the requirements of the disposition (sanction) of the applicable norm. Judgment must be considered from two perspectives. Firstly, it is mental activity, which consists in assessing the collected evidence and establishing on their basis the real picture of what happened, in the final legal qualification and in determining the legal consequences for the parties or the guilty party - the rights and obligations of the parties, the measure of responsibility of the guilty. Secondly, the decision on the case is a document - an act of applying the law, which fixes the result of mental activity to resolve a legal case, officially fixes the legal consequences for specific individuals. The enforcement decision plays a special role in the mechanism of legal regulation. It has already been noted that legal norms and the subjective rights and legal obligations arising from them are provided with the possibility of state coercion, but the latter is implemented precisely by an individual law enforcement decision, since these decisions can be enforced. The possibility of enforcement of acts of application of law determines their features and the requirements of validity and legality imposed on them. 4. Acts of application of law An act of application of law is a legal act of a competent body or official issued on the basis of legal facts and rules of law, which determines the rights, obligations or measure of legal responsibility of specific persons. Law enforcement acts have a number of features. 1. They are issued by the competent authorities or officials. As a rule, these are state bodies or their officials. This implies the state-imperious nature of the acts of application of law. However, state powers are often exercised by non-state organizations. So, in accordance with Part 2 of Art. 132 of the Constitution of the Russian Federation, local self-government bodies may be endowed by law with separate state powers. Obviously, in order to exercise such powers, they must adopt law enforcement acts. Another example: civil law disputes, by agreement of the parties, can be referred to an arbitration court. 2. Law enforcement acts are strictly individual, that is, they are addressed by name to certain persons. In this they differ from normative acts, which have a general character. 3. Acts of application of law are aimed at implementing the requirements of legal norms, as they concretize the general prescriptions of the norms of law in relation to certain situations and persons, officially fix their subjective rights, duties or measure of legal responsibility, i.e., they perform the functions of individual regulation. 4. The implementation of law enforcement acts is provided by state coercion. At the same time, the act of applying the law is a document that is the direct basis for the use of state coercive measures. Thus, enforcement of decisions in civil cases is carried out by bailiffs. The execution of sentences in criminal cases is in charge of the relevant institutions of the Ministry of Internal Affairs of the Russian Federation. Acts of application of law are diverse and can be classified on various grounds. According to the subjects of adoption, they are divided into acts of state authorities, state administration bodies, control and supervisory bodies, judicial bodies, and local governments. According to the method of adoption, these acts are systematized into those adopted collectively and individually. According to the nature of the legal impact, acts of application are divided into regulatory and protective. Regulatory acts ensure the implementation of the dispositions of regulatory norms and authoritatively confirm or determine the rights and obligations of the parties; protective - the implementation of the sanctions of protective norms, establishing measures of legal responsibility. In terms of their significance in the law enforcement process, they can be auxiliary (for example, a court ruling on the appointment of an examination) and basic (a court decision in a civil case, a decision of the commission of the social security department on the appointment of a pension, etc.). According to the form, the acts of application are divided into those that have the form of a separate document (a court verdict, a decision on choosing a measure of restraint for the accused), the form of a resolution on other case materials (approval by the prosecutor of the indictment, a resolution on the transfer of verification materials to the investigating authorities), and in the simplest cases - oral view (imposition of a fine for ticketless travel in public transport). Acts of application must meet the requirements of validity, legality and expediency. The requirement of validity refers to the factual side of a legal case, to logical conclusions about evidence that confirms or refutes conclusions about facts. It is this requirement, as practice shows, that is most often violated (erroneous conclusions are made regarding the factual side of the case, for example, an innocent person is convicted). The requirement of legality covers the legal aspects of the case and includes four points: 1) compliance by the competent body or official considering the case with the requirements of jurisdiction, jurisdiction, etc.; 2) strict observance of all procedural rules governing the collection of evidence, the procedure for consideration, etc.; 3) the correct legal qualification and application of exactly the norm that is in force in this case; 4) making a decision on the case in strict accordance with the provisions of the disposition (sanction) of the applicable norm. The requirement of expediency is secondary to the requirement of legality. This means the following. The prescription of a disposition (sanction), as a rule, allows a certain freedom of the law enforcer in choosing a solution. But this freedom is limited by the requirement of expediency, which manifests itself in different ways depending on the specifics of the case and is expressed in observance of the principles of justice, efficiency, taking into account the financial situation of the parties, individualization of responsibility, etc. For example, choosing a punishment within the sanction of the criminal law, the court must take into account the gravity of the deed, the degree of guilt of the defendant, aggravating and mitigating circumstances. The inappropriateness of the decision on the measure of responsibility may be expressed in excessively severe or too lenient punishment. Such a sentence may be amended or overturned by a higher court accordingly. Enforcement acts - documents of a jurisdictional nature have a clear structure and consist of four parts. The introductory part contains the name of the act (verdict, decision, resolution, etc.), the place and date of adoption, the name of the body or official that decides on which case. The descriptive part describes the facts that are the subject of consideration, it is recorded when, where, by whom, under what circumstances and in what ways the actions were committed. The reasoning part includes an analysis of evidence confirming the presence or absence of factual circumstances, their legal qualification and its justification, an indication of the official explanations of the applicable law and the procedural rules that guided the law enforcement officer. The operative part formulates a decision on the case (on the rights and obligations of the parties, on the chosen measure of legal responsibility, on the establishment of a legal fact, etc.). 5. Gaps in legislation. Application of law by analogy In law enforcement practice, situations sometimes arise when a disputed relationship is of a legal nature, is included in the scope of legal regulation, but is not provided for by a specific rule of law. The law enforcer discovers a gap in the legislation. A gap in the legislation is the absence of a specific norm necessary to regulate a relationship that is within the scope of legal regulation. The range of social relations that make up the scope of legal regulation is established by the legislator in two ways. First, each legal norm regulates a separate type of social relations, the features of which are described in its hypothesis. Thus, each norm has its own “site” in the general sphere of legal regulation. The totality of such "sections", if we mean all the norms of any industry without exception, will constitute the general sphere of legal regulation of this industry. Secondly, the circle of relations that are recognized as legal, the legislator establishes by branches of law through specialized norms. Such rules are intended to establish a range of relations within the scope of legal regulation. Yes, Art. 2 of the Civil Code of the Russian Federation has the heading "Relations regulated by civil law". Part 1 of the said article provides that “civil legislation determines the legal status of participants in civil circulation, the grounds for the emergence and procedure for exercising the right of ownership and other property rights, exclusive rights to the results of intellectual activity (intellectual property), regulates contractual and other obligations, as well as other property and related personal non-property relations based on equality, autonomy of will and property independence of their participants. In Art. 2 "Relations regulated by family law" of the Family Code of the Russian Federation is written: "Family law establishes the conditions and procedure for entering into marriage, terminating marriage and recognizing it as invalid, regulates personal non-property and property relations between family members: spouses, parents and children (adoptive parents and adopted children ), and in cases and within the limits provided for by family law, between other relatives and other persons, and also determines the forms and procedure for placing children left without parental care in a family. Similarly, the circle of legal relations is fixed in other branches of law. At the same time, it is not enough for the law enforcer to determine the legal nature of the case under consideration. He needs to know what its legal consequences are. He can obtain this information only from specific norms, in the dispositions of which the rights and obligations of the parties are formulated in general terms. If there are no such norms, then there is a gap in the legislation. Legislative gaps exist mainly for two reasons: - firstly, as a result of the emergence of new social relations that did not exist at the time of the adoption of the law and could not be taken into account by the legislator; - secondly, due to omissions in the development of the law. In such situations, special techniques are usually used: the analogy of law and the analogy of law. The analogy of the law is the application to a relation that is not regulated in a specific norm of a norm of the law that regulates similar relations. The need to apply this technique lies in the fact that a decision on a legal case must necessarily have a legal basis. Therefore, if there is no rule that directly provides for a disputed case, then it is necessary to find a rule that regulates relations similar to those in dispute. The rule of the found norm is used as a legal basis when making a decision on the case. The application of the analogy of the law in cases of detection of a gap is provided by the legislator. So, in Art. 10 of the Civil Procedure Code of the RSFSR it is written: "In the absence of a law regulating a disputed relationship, the court applies the law regulating similar relations." The scope of the analogy of the law is quite extensive, since, in accordance with Art. 1 of the Code of Civil Procedure of the RSFSR, in civil proceedings, cases are considered on disputes arising from civil, family, labor, administrative and legal relations. Let's take one example. In recent years, many private firms have appeared in the country providing legal assistance to citizens and legal entities. However, the procedural law does not provide for reimbursement of expenses for these services. Therefore, for example, a plaintiff who incurred legal costs, although he won the case, could not recover such costs from the defendant. Currently, in judicial practice, when considering such cases, the analogy of the law is used: the rule of Art. 91 of the Code of Civil Procedure of the RSFSR, which provides for the possibility of recovering the costs of paying for the legal assistance of lawyers - members of the legal advice, is recognized as the legal basis for reimbursement of the costs of paying for the assistance provided by law firms. Note that in connection with the revival of private law in Russia and the expansion of civil liberties, the scope of application of the analogy of the law is correspondingly narrowing. This is evidenced by the definition of analogy in the Civil Code of the Russian Federation: in Part 1 of Art. 6 states that in cases where "relations are not directly regulated by law or by agreement of the parties and there is no business custom applicable to them, such relations, if this does not contradict their essence, are subject to civil law governing similar relations (an analogy of the law)". In civil law, therefore, for the application of the analogy of the law, the absence of a norm directly regulating the disputed relationship is not enough. It is also necessary that there is no agreement between the parties and the usual business practice applicable to the disputed case. The analogy of law is the application to a controversial relationship that is not settled in a specific norm in the absence of a norm regulating similar relations, the general principles and meaning of legislation. The general principles and meaning of legislation are nothing more than the principles of law (general legal and sectoral). With the analogy of law, the principles perform a direct regulatory function and act as the only legal basis for a law enforcement decision. The application of the analogy of law, therefore, is justified if there are two conditions: if a gap is found in the legislation and if there is no rule regulating similar relations, which makes it impossible to use the analogy of the law. The new civil legislation introduced some changes in the procedure for applying the analogy of law. In part 2 of Art. 6 of the Civil Code of the Russian Federation it is written: "If it is impossible to use the analogy of the law, the rights and obligations of the parties are determined on the basis of the general principles and meaning of civil legislation (the analogy of law) and the requirements of good faith, reasonableness and justice." In other words, the law enforcer, using the analogy of law, is guided not only by industry (general principles and meaning of legislation), but also by general legal (requirements of good faith, reasonableness and justice) principles. 6. Legal process Process literally translates as "moving forward." In legal practice, it means the procedure for carrying out the activities of investigative, administrative, judicial bodies, the term "procedure" is close to it in meaning - the officially established procedure for discussing, conducting any case. A great contribution to the creation of the doctrine of the legal process as a special system for ensuring the rule of law was made by V.M. Gorshenev. The most important features of the legal process are that it is regulated by procedural rules, and is aimed at implementing the norms of substantive law. Therefore, in order to understand what the legal process is, what is its place and purpose in legal practice, it is necessary to remember that the role of substantive and procedural norms in legal regulation is different. The norms of substantive law determine the subjective rights, legal obligations, legal responsibility of citizens and organizations, that is, they constitute the main content of law. The essential features of law, as already noted, are its security with the possibility of state coercion, connection with the state. This means that the organs of the state are actively involved in activities aimed at the realization of the law, at its implementation. Such a diverse activity is referred to as the term "legal process". The connection and unity of law and process were noted by K. Marx: “Material law ... has its own necessary procedural forms inherent in it ... The same spirit must animate the judicial process and laws, because the process is only a form of the life of the law, therefore, manifestation of his inner life. Thus, the process is secondary in relation to material law, derived from it, is a form of its life. A similar conclusion can be drawn regarding the procedural rules governing procedural proceedings. K. Marx in his conclusions followed the continental tradition laid down by the school of natural law. A fundamentally different place is occupied by the legal process in the Anglo-Saxon legal system. Here judicial procedures were the basis for the development of the legal system. Judges had to strictly observe all procedural rules when establishing the factual circumstances of the case under consideration, but were not bound by any rules when deciding on it. Only gradually, the desire for unity and consistency of judicial practice led to the formation of case law. Judicial precedent became the main source of law in England, that is, substantive law was formed on the basis of the legal process. In modern legal science, the legal process has received a broader interpretation and is associated not only with law enforcement, but also with lawmaking. The legislative process is carried out on the basis of the relevant regulation and is considered as a kind of legal process, since the regulation contains procedural rules governing the procedure for legislative activity. The legal process is a procedure for the activities of the competent state bodies regulated by procedural rules, consisting in the preparation, adoption and documentary consolidation of legal decisions of a general or individual nature. In a state of law or in a state that seeks to become legal, all the activities of bodies and officials must be organized in such a way that it proceeds in certain legal forms, that is, according to pre-established legal rules. Features of the legal process are as follows. - Firstly, it is the power activity of the competent authorities and officials; - secondly, it is an activity, the implementation of which is regulated by procedural rules; - thirdly, this is an activity aimed at making legal decisions of a general (regulatory acts) or individual (acts of application of law) nature. The legal process is a complex, time-consuming activity, consisting of procedural stages that have a strictly defined sequence. In terms of content, it is a chain of interrelated procedural actions and procedural decisions recorded in the relevant documents. For example, during the investigation of a criminal case, the investigator performs such procedural actions as examining the scene of the incident, search, interrogation of a witness, seizure of material evidence, etc., and makes various procedural decisions - decisions to initiate a criminal case, to conduct a search in the suspect's apartment , on the involvement of a person as an accused, etc. In this case, the investigator, when making procedural decisions and performing procedural actions, is guided by the requirements of the criminal procedure law. At the legislative level, the adoption of laws in parliament, the consideration of cases on administrative offenses, the work of commissions for the appointment of pensions, the activities of all other law-making and law enforcement bodies are also regulated. By the nature of the decisions made, the legal process can be law-making and law enforcement. The result of the law-making process is normative legal acts. The procedures for adopting normative acts and the degree of regulation of these procedures by procedural norms differ significantly depending on the law-making body: parliament, president, minister, regional duma, regional governor, head of an enterprise, etc. The legislative process is of particular importance, and therefore from the stage of legislative initiative and until the entry into force of the law, it is regulated by the Constitution of the Russian Federation, federal laws, regulations of the State Duma and the Federation Council. The result of the law enforcement process is the adoption of an individual legal decision on the case or issue under consideration. The procedures for making law enforcement decisions are diverse. They are simpler for the bodies and officials of the executive and administrative authorities (decree of the President of the Russian Federation on the appointment of a minister, the order of the head on hiring an employee, etc.). The most complex procedures for the adoption of acts of jurisdictional bodies, the law enforcement process in which, depending on the nature of the decision, is divided into the following types: 1) proceedings to establish facts of legal significance. Such a procedure is provided for, for example, by the norms of the Code of Civil Procedure (Art. 247-251); 2) the dispute resolution process (for example, the resolution of economic disputes is regulated by the Arbitration Procedure Code of the Russian Federation); 3) the process of determining the measures of legal liability (for example, the Code of Administrative Offenses of the RSFSR contains a section "Proceedings on Administrative Offenses", criminal proceedings are carried out according to the norms of the Code of Criminal Procedure. In the literature, it is proposed to single out another type of legal process - law-explanatory. There are some grounds for this: in the course of legal explanatory activity, specific legal decisions are issued - interpretative legal acts that differ from both normative and law enforcement acts. At the same time, the legislator does not yet single out a special procedure for the adoption of acts of official interpretation and, therefore, does not consider such activity a special type of legal process. Proceedings for the execution of law enforcement decisions also have specific features: court sentences, decisions in civil cases, decisions on administrative arrest and other decisions on the application of state coercion measures. Such law enforcement activities of state bodies should be considered as a special kind of law enforcement process. The types of legal process also differ by industry. There are two procedural branches in the system of Russian law: civil procedural and criminal procedural law, which regulate civil proceedings and preliminary investigation and criminal proceedings, respectively. There is also proceedings on administrative cases related to the application of measures of legal responsibility, preventive measures, preventive and other measures of state coercion. In domestic legal science, an opinion was expressed that a new branch is being formed - administrative procedural law. We should agree with this, given that the improvement of procedural legislation strengthens the legal foundations for the activities of officials and bodies of the Russian state, and contributes to the formation of administrative jurisdiction. Thus, civil, criminal and administrative proceedings are distinguished by industry. A variation of the civil process is the arbitration process. Proceedings in the arbitration court are regulated by the Arbitration Procedure Code of the Russian Federation. Chapter 26 Lawful behavior. Offense 1. Human behavior and law Law is an important means of regulation, development and protection of social relations. But these relations themselves are a product of people's vital activity, their behavior in society. Consequently, law can regulate social relations only by influencing the behavior of specific people, individuals, from whose actions these relations are composed. We can say that law is one of the most important tools for managing people's behavior, which is the direct object of legal regulation. K. Marx, characterizing the role of behavior in legal regulation, emphasized that in addition to his actions, a person does not exist at all for the law, is not its object. Therefore, the actions of a person are the only thing by virtue of which he falls under the authority of the law in force. Human behavior is extremely varied. It has a different form of expression, intensity, motives, goals, consequences. But all variants of behavior reveal certain interests, orientations, ideological positions in the system of relations of a state-organized society. That is why any behavior is the object of moral and legal evaluation. From the standpoint of law, human behavior can be assessed in different ways. Separate relations of people are outside the scope of legal regulation, and therefore are not evaluated by law at all (relations of love, friendship, etc.). They are only moral. Other relationships are not regulated by law, are legally indifferent and do not require legal mediation (for example, passion for sports, music, sports games). Of greatest interest to legal science and practice is the behavior of people in the sphere of legal influence, that is, behavior regulated by law. In the literature, such behavior is called legal. Legal behavior has a number of characteristics. The first of these is social significance. The actions of people are woven into the system of social relations and therefore have a certain impact on it (positive or negative). By virtue of its social significance, every human act generates the reaction of others - approval or condemnation. This is the manifestation of the social characteristic (assessment) of behavior that can be either socially useful or socially dangerous (harmful). The second sign of legal behavior is its psychologism, subjectivity. It is due to the fact that people are endowed with consciousness and will and control their behavior. Performing this or that action in the legal sphere, the subject correlates it with the existing norms and values, analyzes it from the standpoint of what benefit it will bring to society, to itself, to other people. Depending on this, a decision is made, the direction and intensity of behavior are determined. This side, connected with the attitude of a person to his actions and their consequences, constitutes the subjective side of behavior. At the same time, human behavior in the legal sphere has specific, legal features that characterize it as legal, which is determined by the connection of behavior with law, legal regulation. The first legal sign of such behavior is its legal regulation. Both objective and subjective moments of behavior are reflected in legal prescriptions. Such regulation ensures accuracy, certainty of behavior in the legal sphere, is protection against outside interference in the actions of citizens of other subjects. This formal-legal side of legal behavior is very significant. No matter how socially useful (or, conversely, socially dangerous) behavior is, if it is not mediated by law, it is not legal, it is not supported by the coercive power of the state. It is through legal norms that socially useful behavior is stimulated, introduced into public life, and behavior that is undesirable for society is forced out of life. The second legal sign of legal behavior is its control by the state represented by law enforcement and law enforcement agencies. This sign follows from the property of guaranteeing the law by the state, its coercion. Controlling the actions of the subjects of public life, the state corrects them depending on the social significance of actions. The third legal sign of legal behavior is that, as a legal behavior, it entails legal consequences. This feature is important for characterizing behavior in the legal sphere. In the context of expanding the boundaries of generally permissive regulation, when "everything that is not prohibited by law" is allowed, it can be assumed that any behavior that is not prohibited by legal norms is legal behavior. However, subjects commit a lot of actions that, although not prohibited by law, do not entail any legal consequences. While legally neutral, such behavior is (again) not legal. Due to this feature, a legal act usually acts as a legal fact - the basis for the emergence (or termination) of a legal relationship. All of the above makes it possible to define legal behavior as socially significant conscious behavior of individual or collective subjects, regulated by the rules of law and entailing legal consequences. Thus, human activity in the legal sphere can be assessed both from the social and from the legal side. We speak of lawful and unlawful behavior when it is examined from the point of view of its compliance with the requirements of legal regulations. It can be socially useful or socially dangerous (harmful), when the evaluation criterion is its social significance. In addition, when characterizing human actions, it is important to take into account the subjective moment. The behavior of the subject cannot be analyzed from the standpoint of only one of these factors. A one-sided approach does not allow one to correctly evaluate an act, give a correct classification of its consequences, and determine the reaction of the state and society to it. In particular, a legal act is often considered only from one, legal, side. Any behavior that complies with the rules of law is understood as lawful, and contrary to them - as an offense. When analyzing behavior, not only from the legal, but also from the social side, its various variants are revealed. Thus, behavior is possible that is carried out within the framework of legal norms, which does not violate them, but causes some damage to society and individual citizens. It happens that the subject violates the law, acts illegally, but his actions do not entail any negative consequences for others. Therefore, it is not necessary to limit the types of legal behavior to the two named (lawful and offending). The development and needs of legal practice require a more differentiated approach to this issue, because different types of legal actions need appropriate legal regulation. All of the above allows us to distinguish the following types of legal behavior: 1) lawful - socially useful behavior that complies with legal requirements; 2) offense - socially harmful behavior that violates the requirements of the rule of law; 3) abuse of the right - socially harmful behavior, but carried out within the framework of legal norms; 4) objectively illegal - behavior that does not cause harm, but is carried out in violation of legal orders. This also includes the unlawful behavior of an incompetent person. 2. Lawful Conduct The main variety of legal behavior is lawful behavior, because the vast majority of citizens and organizations in the field of law act in this way. Lawful behavior is a mass-scale socially useful conscious behavior of people and organizations that complies with legal norms and is guaranteed by the state. Lawful behavior has the following characteristics. First, lawful behavior complies with the requirements of legal norms. A person acts lawfully if he strictly observes legal prescriptions. This is a formal legal criterion of behavior. Often lawful behavior is interpreted as behavior that does not violate the rule of law. However, such an interpretation does not quite accurately reflect the content of this phenomenon, because behavior that does not contradict legal prescriptions can be carried out outside the scope of legal regulation, not be legal. Second, lawful behavior is usually socially beneficial. These are actions that are adequate to the way of life, useful (desirable), and sometimes necessary for the normal functioning of society. It also plays a positive role for the individual, because thanks to it freedom is ensured, legitimate interests are protected. Thirdly, lawful behavior has a sign that characterizes its subjective side, which, like any other action, consists of motives and goals, the degree of awareness of the possible consequences of an act and the individual's internal attitude towards them. At the same time, motives reflect not only the direction (violates or not the norms of law), but also the nature, degree of activity, independence and intensity of behavior in the course of implementation. The subjective side indicates the level of legal culture of the individual, the degree of responsibility of the person, his attitude to social and legal values. The social role of lawful behavior is extremely high. It represents the most effective implementation of the law, which is protected by the state. It is through lawful behavior that the ordering of social relations is carried out, which is necessary for the normal functioning and development of society, and a stable legal order is ensured. Lawful behavior is the most important factor in solving the problems facing society. However, the social role of lawful behavior is not limited to the satisfaction of social needs. Its no less important function is to satisfy the interests of the subjects of legal actions themselves. Since society and the state are interested in such behavior, they support it with organizational measures, encourage and stimulate it. Acts of subjects that prevent the commission of lawful actions are suppressed by the state. At the same time, the social significance of various variants of lawful behavior is different. Their legal status is also different. Some types of lawful actions are objectively necessary for the normal development of society. This is the defense of the Motherland, the performance of labor duties, compliance with internal labor regulations, traffic rules, etc. Variants of such behavior are enshrined in imperative legal norms in the form of duties. Their fulfillment is ensured (in addition to the organizational activity of the state) by the threat of state coercion. Other options of behavior, while not so necessary, are desirable for society (participation in elections, marriage, appealing against illegal actions of officials, etc.). This behavior is fixed not as a duty, but as a right, the nature of the implementation of which largely depends on the will and interests of the authorized person. Many variants of such behavior are enshrined in dispositive norms. Possible legitimate socially acceptable behavior. These are, for example, divorce, frequent job changes, a strike. The state is not interested in their prevalence. However, these actions are lawful, permitted by law, and therefore the possibility of their commission is provided by the state. Socially harmful, undesirable behavior for society is normatively fixed in the form of prohibitions. Lawful behavior in this case consists in refraining from prohibited actions. Lawful actions can be classified on various grounds: subjects, objective and subjective side, legal consequences, etc. So, depending on the subjects of law, carrying out lawful actions, the latter are divided into lawful individual and group behavior. Group is understood as "unification of actions of members of a certain group, which are characterized by a certain degree of commonality of interests, goals and unity of action." This includes the activities of a labor collective, a state body, an organization - a legal entity, fixed by law. From the external, objective side, lawful behavior can be expressed in the form of active actions or inaction. Close to this is the division of lawful behavior according to the forms of implementation of legal norms, which include their observance, execution and use. Depending on the legal consequences that the subject of implementation wants to achieve, there are legal acts, legal actions and actions that create an objectified result (here, lawful actions act as legal facts). The classification of lawful actions according to the subjective side is very important. The subjective side of lawful actions is characterized by the level of responsibility of subjects who may relate to the implementation of the law with a sense of high responsibility or irresponsibility. Depending on the degree of responsibility, the attitude of the subject to his behavior, his motivations, there are several types of lawful actions. Socially active behavior indicates a high degree of responsibility of the subject. When implementing legal norms, he acts extremely actively, striving to implement the legal prescription as best and more efficiently as possible, to bring maximum benefit to society, to realize his abilities. Legal activity can manifest itself in various spheres of public life - industrial, political, etc. So, in the industrial sphere, this is a creative attitude to work, a constant increase in its productivity, initiative and discipline in work. Law-abiding behavior is responsible lawful behavior, characterized by the conscious obedience of people to the requirements of the law. In this case, lawful prescriptions are used voluntarily, on the basis of proper legal awareness. Such behavior prevails in the structure of lawful behavior. Conformist behavior is characterized by a low degree of social activity. A person passively observes legal requirements, strives to adapt to others, not to stand out, "to do like everyone else." Although marginal behavior is legitimate, due to the low responsibility of the subject, it is, as it were, on the verge of antisocial, illegal (translated from Latin "marginal" - on the verge). It does not become unlawful because of fear of punishment (and not because of the awareness of the need to implement legal norms) or because of some selfish motives. In these cases, the subjects only obey the law (for example, the passenger pays for the fare only because there is an inspector on the bus who can impose a fine for stowaways), but do not recognize, do not respect it. Somewhat apart in this classification is habitual behavior, when lawful actions, due to repeated repetition, turn into a habit. Habitual behavior is not in vain called "second nature". It becomes an inner human need. A feature of habitual behavior is that a person does not fix in the mind either its social or legal meaning, does not think about it. So, an experienced driver stops at a red traffic light automatically, without thinking about the content of the signal, the consequences of its violation. However, the habit does not negate the understanding of the actual elements of its action, although there is no proper social assessment of its consequences. This is habitual but not unconscious behavior. 3. Offense An offense is a social and legal antipode of lawful behavior, their social and legal signs are opposite. Offense is a kind of antisocial, illegal behavior. In the social sense, this is behavior that is contrary to or capable of harming the rights and interests of citizens, their teams and society as a whole, it complicates and disorganizes the development of social relations. Thus, the crimes provided for by the Criminal Code of the Russian Federation encroach on the foundations of the state system, on the individual, his political and economic or social rights, public order and other social benefits. Other offenses, although not so socially dangerous, still harm social relations, the individual, the natural environment, etc. Of course, individual offenses cannot pose a danger to society as a whole. However, taken in aggregate, they pose a significant danger to him, violate the regime of legality, the established legal order. A mass phenomenon consisting of a set of crimes committed in a state in a certain time period is called crime. In modern conditions in our country there is a sharp surge in offenses, including their most dangerous form - crimes in various spheres of public life. The rampant growth of crime poses a serious threat to the state and society, life, health and property of citizens. To combat offenses, it is important to determine their nature and characteristics, the reasons for committing them, and on this basis to outline ways to reduce their number. An offense is a socially harmful guilty act of a capable subject, contrary to the requirements of legal norms. Consider the main signs of an offense. Firstly, an offense is an act of behavior expressed in action or inaction (inaction here is understood as refraining from actions when the law prescribes their commission). Thoughts, feelings, political and religious views that are not expressed in actions cannot be considered offenses. Qualities, personality traits, nationality, family ties of a person, etc. are not considered offenses. K. Marx emphasized that laws that make the main criterion not the actions of a person, but his way of thinking, are nothing more than positive sanctions of lawlessness . Secondly, only volitional actions are considered offenses, that is, actions that depend on the will and consciousness of the participants, carried out by them voluntarily. It is impossible to call an offense behavior that is not controlled by consciousness, or behavior committed in a situation that deprives a person of the choice of a behavior other than illegal. Therefore, offenses are behaviors of only able-bodied (delictual) people. The law does not consider minors and the mentally ill to be delinquent. Thirdly, only such an act is recognized as an offense, by committing which the individual is aware that he is acting illegally, that his act damages public interests, acts guilty. Fourth, an offense is an illegal action that violates the requirements of the rule of law. This is either a violation of prohibitions, or a failure to fulfill obligations. Abstention from the active exercise of the right of the offense is not. The sign of wrongfulness characterizes the offense from the formal legal side. It is well known that no one can be limited in their rights and freedoms, and no actions performed within the limits of legal prescriptions can be recognized as illegal. Unlike lawful actions, which may be directly provided for by the rule of law, or may follow "from the spirit" of the law or type of regulation (everything that is not prohibited is allowed), illegal acts in the form of their prohibitions must be clearly formulated in legal rules. The excessive "formalism" of wrongfulness ensures the unity of the requirements for all citizens and organizations. Fifthly, the offense is always socially harmful. Any offense harms the interests of the individual, society, state (property, social, moral, political, etc.). Damage or destruction of property, death of a person, infringement of his dignity, loss of working time, defective products - all these are negative consequences of an offense. An act may not cause real harm, but only put social values under its control (for example, the drunken state of a driver is such). The degree of social harmfulness of an act may be different, but its presence is necessary for classifying it as an offense. The absence of at least one of these signs does not allow us to consider the act as an offense. Therefore, it is not an offense to conduct a variant of behavior, although it violates legal requirements, but does not cause damage, socially useful. An action, although socially dangerous, but carried out within the framework of legal prescriptions, is also not considered an offense, just as the illegal action of an incompetent person is not considered as such. These features are derived from the current legislation. In particular, art. 14 of the Criminal Code of the Russian Federation enshrines that "a guilty socially dangerous act prohibited by this Code under the threat of punishment is recognized as a crime", in Art. 10 of the Code of Administrative Offenses is called as an administrative offense (misdemeanor) "an unlawful, guilty ... action or inaction that encroaches on the state or public order, for which the law provides for administrative responsibility." Due to the formal certainty of law, its norms clearly fix not only the very rule of behavior (necessary or prohibited), but also other factors that make it possible to characterize an act as an offense. The system of signs of an offense in the unity of its objective and subjective sides, necessary and sufficient for the imposition of legal responsibility, is defined as the composition of an offense. It includes the subject of the offense, the object of the offense, the objective and subjective side of the offense. The subject of the offense may be a delinquent individual or organization. In criminal law, this is only a natural person. The subject of the offense is enshrined in the hypothesis of a legal norm. Thus, negligence (a crime under Article 293 of the Criminal Code of the Russian Federation) can only be committed by an official. The object of the offense is what it is aimed at, i.e. those values and benefits that are damaged by the offense - property, life, health of citizens, public order, etc. The object (like the subject) is clearly enshrined in the legal norm . The objective side of the offense is characterized by: an outwardly expressed act, its socially harmful consequences and the necessary causal relationship between them. Like other elements of the composition, the objective side is quite clearly enshrined in the law. For example, bodily injury can be severe, less severe, light. Each of them forms an independent corpus delicti under the Criminal Code. The subjective side of the offense is associated with the concept of guilt. The degree of the subject's guilt is determined by the guilty person's foresight or unforeseen consequences of his act, his attitude to the act and its consequences. Guilt may be in the form of intent or negligence. The latter assumes that the individual foresaw the onset of socially dangerous consequences, but not only did not want their onset, but also frivolously hoped for their prevention (arrogance), or did not foresee, but should have foreseen due to the circumstances of the case (negligence). Offenses, as well as acts of lawful behavior, are very diverse. They differ in the degree of social harmfulness, the duration of the commission, the subjects, the scope of the violated legislation, the objects of encroachment, etc. According to the nature and degree of social harm, all offenses are divided into crimes and misdemeanors. This division is not only of scientific and theoretical, but also of great practical importance, because it contributes to the provision of effective legal regulation, the fight against offenses, and the strengthening of the rule of law. Often, crimes and misdemeanors are distinguished according to the degree of public danger, i.e., a quantitative criterion is placed at the basis of the division. However, this does not quite accurately characterize the factual side of offenses, the basis of which is their qualitative originality. Crimes are socially dangerous criminally punishable acts. Public danger is a clear danger of an act for society, for the most significant interests of the state, the individual. Recognizing the harmfulness, antisocial nature of other offenses (misdemeanors), it should be remembered that the harm caused by them does not reach the level of public danger. This circumstance must be taken into account by the legislator, whose unconditional duty "is not to turn into a crime that which has the character of a misdemeanor." The named side of the crime is also fixed by law. Yes, Art. 14 of the Criminal Code of the Russian Federation defines a crime as a socially dangerous act in general. Public danger is inherent in all elements of its composition, including the subject. It is no accident that crimes taken together form a specific social and legal phenomenon - crime, against which every society is forced to wage an uncompromising struggle. For a subject guilty of a crime and brought to justice, the law provides for special consequences - a criminal record. The increased social danger of crimes also predetermines their formal legal side. As criminal acts are fixed exclusively by law. No other regulation can do this. Moreover, they are enshrined in the Criminal Code with exhaustive completeness. Analogy in criminal law is unacceptable. To administrative offenses, the signs of which are formulated in Art. 10 of the Code of Administrative Offenses, include acts that damage relations that are developing in the field of public administration. Their social harmfulness lies in the fact that they interfere with the normal executive and administrative activities of state and public bodies and organizations, destabilize them, encroach on public order. The legislation provides for administrative liability for such misconduct. Civil law offenses (torts), unlike crimes and administrative offenses, do not have a clearly defined definition in the legislation. These are illegal acts that harm property and related personal non-property relations regulated by civil law (non-fulfillment or improper fulfillment of contractual obligations, causing property damage, etc.). For their commission, civil liability in various forms is assumed. A disciplinary offense is understood as an unlawful guilty failure by a worker or employee to fulfill their labor duties, violating the rules of internal labor regulations. Such offenses undermine labor discipline and thereby harm the normal functioning of enterprises and organizations. An independent type of offenses is formed by the actions of state bodies authorized to issue legal acts, when the latter contradict the requirements of the law. The basis of this phenomenon is the violation of the principle of the rule of law and the subnormality of law enforcement acts. This type of offense has not yet received sufficient development in science, although the number of normative acts (for example, acts of ministries and departments) that contradict the law is quite large. In the context of the construction of a rule of law state, the most important principle of which is the rule of law, such facts are unacceptable, and therefore the problem requires further study. 4. Abuse of the right Lawful behavior and offense as the main types of legal behavior do not exhaust the whole variety of behavior in the legal sphere. A special place here is occupied by the abuse of the right. Moreover, despite the fact that the number of such cases is increasing more and more, in legal science this problem remains unresolved, largely debatable. The term "abuse of the right" in its literal sense means the use of the right for evil in cases where the authorized subject has a subjective right, acts within it, but causes any damage to the rights of others or society as a whole. For example, a family member of a tenant of a dwelling, abusing his right, does not consent to an exchange without any reason, thereby infringing on the rights of other family members. An analysis of the legislation and the practice of its application allows us to conclude that the abuse of the right is a legal phenomenon, because it implies: a) the person has subjective rights; b) activities to implement these rights; c) the use of rights contrary to their social purpose or causing damage to public or private interests; d) no violation of specific legal prohibitions or obligations; e) establishing the fact of abuse by the competent law enforcement agency; f) occurrence of legal consequences. Many authors interpret this phenomenon as an offense, but, in our opinion, such a conclusion does not adequately reflect its content. An offense is a guilty, unlawful, socially harmful act. Since in the case under consideration the subject acts within the framework of the subjective right granted to him, illegality as the main legal sign of an offense is absent here. Moreover, abuse is not associated with a violation of specific prohibitions, failure to fulfill obligations (which is typical for an offense). In general, the inadmissibility of abuse of the right is enshrined in Art. 10 Civil Code of the Russian Federation. In exceptional cases, when the degree of public danger of the abuse of the right is great, the legislator defines it as an offense, prohibiting it normatively and supplying the norm with a legal sanction. Such are, for example, Art. 201, 202, 285 of the Criminal Code of the Russian Federation, Art. 284, 285, 293 of the Civil Code of the Russian Federation, Art. 69 RF IC. At the same time, the denial of the illegality of the abuse of the right does not provide grounds for characterizing it as lawful behavior, because the latter is always socially useful. We believe that this phenomenon should be considered as an independent type of legal behavior. Such an interpretation of the abuse of the right suggests that its legal consequences are unconventional. They cannot be either legal responsibility (this is a consequence of an offense), much less incentives (stimulating socially useful behavior). Russian legislation provides for the following consequences of abuse of the right: - invalidation of its consequences (recognition of an invalid transaction made for the purpose contrary to the foundations of law and order and morality - Article 169 of the Civil Code of the Russian Federation); - termination of the use of the right without its deprivation (Article 72 of the LC limits the possibility of using the right to exchange a dwelling if it is mercenary); - denial of state protection of a subjective right (clause 2, article 10 of the Civil Code of the Russian Federation). 5. Objectively wrongful act Another kind of atypical variant of legal behavior is an action that violates the rule of law, but does not cause harm. This includes the wrongful act of an incompetent person and an innocent act. Such behaviors are often identified with offenses. However, they are not such, because there is no important sign of an offense here, one of the elements of its composition is social harm (capacity of the subject, his guilt). In the legal literature, the considered variant of legal behavior is defined as an objectively illegal act. Not being an offense, it does not entail measures of legal responsibility. The main type of state coercion used for the commission of an objectively unlawful act is protective measures, legal means used to restore violated rights in relation to obligated persons. Their purpose is to stop the violation of law and order, to restore normal ties and relationships. An objectively illegal act of an insane person or a minor entails the use of coercive measures of a medical or educational nature (Article 97 of the Criminal Code of the Russian Federation). Chapter 27 Legal Liability 1. The concept of social responsibility The term "responsibility" is quite diverse. So, they talk about a sense of responsibility and responsible behavior. You can increase responsibility, take responsibility, bring a person to responsibility and release from it. Finally, there are people who act responsibly and persons in responsible positions, and in the economic sphere there are enterprises with limited liability. What unites these concepts, different in content, but defined by one term? In all these and other cases, we are talking about various aspects of a phenomenon rich in content - social responsibility. Its existence is predetermined by the social nature of human behavior and reflects the relationship between society and the individual. It is impossible to live in society and be free from it: in any life situation, a person must conform his actions to the norms and values that exist in society, to the interests of other people. Acting in accordance with them, he acts responsibly. In turn, society (the state, the collective, surrounding persons) constantly monitors the activity of the subject, adequately responding to various behaviors (encouraging, approving responsible behavior and punishing the violator). Therefore, responsibility (in a broad, social sense) can be characterized as a social relationship between the subject and the authority that controls his behavior (the state, society). Thanks to it, organization and order are ensured in society. Since human behavior has two polar varieties (socially useful and socially harmful), then responsibility is considered in two aspects: positive and negative (prospective and retrospective). In the prospective (positive) aspect, responsibility characterizes a person's positive attitude towards his actions. This is an understanding of the importance of one's actions for society, the desire and desire to perform them as best, more efficiently, faster as possible. This is the responsibility for the proper implementation of one's social role, the implementation of social norms, for any task assigned. In the legal sphere, positive responsibility is associated with social and legal activity, the manifestation of initiative in the implementation of legal prescriptions. It is this side of responsibility that is meant when they talk about a feeling (awareness) of responsibility or that a person takes responsibility. Responsibility in the indicated sense is considered as a social necessity realized and perceived by a person for the proactive fulfillment of duty, the entire amount of duties lying on him - political, moral, legal. This is the responsibility for future behavior. Society is not indifferent to the activities of the subjects, its consequences. Therefore, exercising constant control over their behavior, it, if necessary, corrects it by encouraging, stimulating socially active, highly responsible behavior or, conversely, punishing the violator of social requirements. In the second case, there is retrospective responsibility, responsibility for what has already been done. It is associated not only with the awareness of its personality, but also with external influence from society, the state, other persons and can be moral, public, etc. Among these types of negative (retrospective) responsibility, legal responsibility occupies a special place as the most important type of social responsibility. 2. The concept of legal liability In domestic science there is no unity in the interpretation of legal liability. Each author tries to define it in his own way, emphasizing those aspects of it that he considers to be the main, defining ones. Most authors understand legal responsibility as a measure of state coercion or identify it with punishment for an offense. Another group of researchers considers legal responsibility within the framework of existing legal categories. They interpret it as a protective legal relationship, as a specific legal obligation, as the implementation of sanctions of legal norms, etc. Recently, another direction has been formed - the analysis of legal responsibility as a general social phenomenon. It resulted in the concept of positive legal liability. When characterizing this phenomenon, we proceed from the following assumptions. 1. Legal responsibility reflects the specifics of any legal phenomena - their formal certainty and the procedural order of implementation. 2. Legal liability is inseparable from the offense, acts as its consequence. 3. Legal liability is associated with the implementation of the sanctions of legal norms. 4. Legal responsibility is associated with state-power activities, with state-legal coercion. Thus, legal responsibility is the application to the offender of the measures of state coercion provided for by the sanction of the legal norm, expressed in the form of deprivations of a personal, organizational or property nature. Let us name the main features of the analyzed phenomenon: 1) legal responsibility involves state coercion; 2) this is not coercion "in general", but a "measure" of such coercion, its clearly defined scope (quantitative indicators); 3) legal liability is associated with the offense, follows it and is directed at the offender; 4) responsibility entails negative consequences (deprivations) for the offender: infringement of his rights (deprivation of liberty, parental rights, etc.), imposing new additional obligations on him (payment of a certain amount, performance of any actions, etc.) ; 5) the nature and extent of the deprivations are established in the sanctions of the legal norm; 6) the imposition of deprivations, the application of state-coercive measures is carried out in the course of law enforcement activities by the competent state bodies in the manner and forms strictly defined by law. Outside the procedural form, legal liability is impossible. The interpretation of legal liability as an application also follows from the content of the current legislation. Thus, the commission by a person of actions prohibited by criminal law does not yet entail legal liability. Moreover, until the appropriate decision (verdict) of the court, the person is generally considered innocent, and therefore not subject to criminal liability. In some cases, the person who committed the offense may be released from liability, i.e., the law enforcement process is not carried out. In other cases, the violator in the course of law enforcement is exempted from punishment, i.e., from the corresponding deprivations, but not from liability in general. 3. Purposes and functions of legal responsibility For a deeper insight into the essence of legal responsibility, it is necessary to clarify its goals and purpose in society. N. Wiener pointed out the need for such a clarification: “Until society establishes what it really wants: redemption, isolation, education or intimidation of potential criminals, we will have neither redemption, nor education, nor intimidation, but only confusion, where one crime breeds another." The goal is the ideal representation of subjects (personalities, organs, social groups) about the results of their actions. It is they who determine both the means and the nature of the actions aimed at achieving it. The goals of legal responsibility are a concrete manifestation of the general goals of law. These are the consolidation, regulation and protection of social relations. These goals determine the existence of the regulatory and protective functions of law. Since legal responsibility "participates" in the implementation of the protective function, then its goal in general form can be defined as the protection of the existing system and public order. The responsibility applied to a specific offender has (along with the protection of social relations) a narrower goal - the punishment of the guilty. At the same time, the state, exercising a measure of state coercion, pursues another goal - preventing the commission of offenses in the future. In addition, there are purely legal goals of legal responsibility, which serve as a means of ensuring the normal functioning of the mechanism of legal regulation by ensuring the implementation of subjective rights and legal obligations by the subjects of legal relations, which are the most important guarantee of legality. These goals of legal liability determine its functions. Chief among them is the penalty, punitive function. It acts as a reaction of society represented by the state to the harm caused by the offender. First of all, this is the punishment of the offender, which is nothing but a means of self-defense of society from violation of the conditions of its existence. Punishment is always the infliction of spiritual, personal, material burdens on the offender. It is implemented either by changing the legal status of the violator through the restriction of his rights and freedoms, or by imposing additional obligations on him. However, punishing the offender is not an end in itself. It is also a means of preventing (preventing) the commission of new offenses. Consequently, legal responsibility also performs a preventive (warning) function. By implementing the punishment, the state affects the consciousness of the offender. This influence consists in "deterrence", proof of the inevitability of punishment and thus in the prevention of new offenses. Moreover, the preventive effect is not only on the violator himself, but also on those around him. This, of course, in no way means that punishment can be carried out without taking into account the gravity of the violation and the guilt of the offender, only as a warning to others. Excessive, unjustified cruelty of punishment cannot be a condition for preventing future violations. Experience shows that the preventive value of punishment is determined not by its cruelty, but by its inevitability. At the same time, punishment is also aimed at educating the offender, i.e., legal responsibility also has an educational function. An effective fight against violators, timely and inevitable punishment of the perpetrators create among citizens an idea of the inviolability of the existing legal order, strengthen faith in the justice and power of state power, confidence that their legitimate rights and interests will be reliably protected. This, in turn, contributes to an increase in the political and legal culture, responsibility and discipline of citizens, the intensification of their political and labor activities, and, ultimately, the strengthening of the rule of law and the stability of the rule of law. In a significant number of cases, the measures of legal responsibility are not aimed at formally punishing the perpetrator, but at ensuring the violated interest of society, the authorized subject, and restoring public relations violated by unlawful behavior. In this case, legal liability performs a remedial (compensatory) function. It is most clearly manifested in civil law, which implies, for example, sanctions such as compensation for damages (Article 15 of the Civil Code of the Russian Federation). Of course, compensation for damage is far from possible in all cases (it is impossible to resurrect the dead, etc.). However, where this is achievable, the compensatory function of legal liability is one of the most important. Thus, legal responsibility is connected mainly with the protective activity of the state, with the protective function of law. But it also performs the organizing (regulatory) function inherent in law as a whole. The very fact of the existence and inevitability of punishment provides organizing principles in the activities of society. Historically, legal liability arose as a means of protecting private property. The embryo of the latter was possession, and the basis of law as a specific regulator of social relations of a class society is the protection by public authorities of possession, which is gradually turning into private property. An important task of the state was to protect private property by establishing prohibitions and applying state coercion to their violators. An analysis of the legal acts of antiquity shows that the institution of property and its protection served as their core, and the law of obligations arose and developed in the form of legal consequences of violation of the rights of the owner. Thus, legal responsibility is a means, a tool for the formation and strengthening of private property relations and, at the same time, for the displacement of obsolete social relations alien to society. 4. Principles of legal responsibility For a more complete understanding of the essence of legal liability, it is important to determine the principles on which it is based. The principles of any phenomenon reflect deep, stable, natural connections, thanks to which it exists. Knowledge of the principles of responsibility allows you to correctly apply protective norms, resolve cases with gaps in law, and ensure the effectiveness of state-legal coercion. In legal science, the following principles of legal responsibility are distinguished: legality, justice, inevitability of occurrence, expediency, individualization of punishment, responsibility for guilt, inadmissibility of doubling the punishment. LegitimacyThe essence of legality is the requirement of strict and precise implementation of legal prescriptions. With regard to legal liability, this requirement is that only competent authorities can be brought to it in a manner strictly established by law and on the grounds provided for by law. The actual basis of liability is an offense in the unity of all its elements. If at least one element of the offense is absent in the actions of the subject, then there is no legal basis for bringing him to justice. No other factor (nationality, party affiliation, education, gender, ideological views, etc.) can serve as such a basis. Otherwise, it will no longer be legal responsibility, but arbitrariness. Legitimacy imposes certain requirements on the procedure for bringing the violator to justice. It is unacceptable to deviate from the procedure established by law under the guise of speeding up, simplifying, or the effectiveness of liability, or with reference to the excessive formalism of the law. JusticeBased on the requirements of legality, the punishment of the guilty must be imbued with the idea of social justice. It is the principle of law, the basis of justice. A.F. Kony emphasized that "justice must find its expression in legislation, which is the higher, the deeper it looks into the truth of human needs and opportunities, and in justice administered by the court, which is the higher, the more it contains a living, and not a formal relationship to person's personality." The same applies to legal liability as well. “To punish a criminal without violating justice,” said J.P. Marat, “means to curb the evil, protect the innocent, save the weak from oppression, snatch the sword from the hands of tyranny, maintain order in society and the public peace of its members. What other goal can be more intelligent, more noble, more generous, and more important for the well-being of people?" The justice of legal responsibility is not an abstract moral or psychological concept. It manifests itself in the following system of formal requirements: 1) it is impossible to impose criminal punishment for misdemeanours; 2) the law establishing liability or strengthening it does not have retroactive effect; 3) if the harm caused by the violation is reversible, legal liability must ensure its compensation; 4) only one punishment is possible for one violation; 5) the responsibility is borne by the one who committed the offense; 6) the type and measure of punishment depend on the gravity of the offence. When establishing liability, both aggravating and mitigating circumstances are taken into account. In certain cases provided for by law, it is possible to determine a measure of punishment below the limit established by the sanction, or to release a person from punishment altogether. The inevitability of the offensiveLegal responsibility (we repeat) is inextricably linked with the offense. From this connection follows the principle of the inevitability of responsibility, the inevitability of its occurrence for any offense. If measures of state coercion must follow for this or that act, then without legal grounds no one can be exempted from responsibility and punishment under any pretext (social status, party affiliation, family ties, etc.). If an offense is committed, but responsibility has not occurred, this causes moral damage to the authority of the law, undermines the idea of legality in the minds of citizens and officials. The introduction into the public consciousness of the idea of the inevitability of the connection between an offense and punishment is an important factor in reducing the level of offenses. ExpediencyThe inevitability of responsibility presupposes its expediency. Responsibility comes inevitably, because it is expedient. It is unacceptable to release the violator from liability without legal grounds under the pretext of severity, expediency, efficiency, political, ideological and other non-legal motives. At the same time, it is necessary to distinguish between the expediency of responsibility as a legal phenomenon and the consideration of expediency in the process of law enforcement, in the course of bringing a person to responsibility, in determining the measure of punishment for him. In this case, expediency lies in the compliance of the measure of influence chosen against the offender with the goals of legal liability. It involves a strict individualization of punitive measures, depending not only on the severity of the violation, but also on the characteristics of the personality of the offender, the circumstances of the commission of the act, etc. If the goals of liability can be achieved without its implementation, the law allows the release of the perpetrator from liability. He can be transferred on bail, the case is sent for consideration by a comrades' court, etc. The requirement of expediency should not contradict the requirement of legality in the implementation of responsibility (expediency does not allow the possibility of making arbitrary, subjective decisions by a state body). And even more so, it is impossible to violate the requirements of the law under the guise of its inexpediency. There is no need for such a violation, because the law itself makes it possible to choose an appropriate solution. For example, the sanctions of criminal law are relatively certain, which allows the state body to choose the most appropriate measure of punishment in specific conditions. Individualization of punishmentThis principle is that the perpetrator must bear responsibility for the committed offense. It is unacceptable to transfer it from the guilty to another subject (for example, for the irresponsible actions of the head, responsibility is often assigned to the enterprise as a legal entity, for the offenses of adolescents, parents and teachers are often held accountable). In order to put this principle into practice, it is important to precisely enshrine in the legislation the functions of each employee and also clearly define the measures of responsibility for their failure. Legal liability is effective only when its bearer is personally identified. This excludes the possibility of "impersonal" collective responsibility or mutual responsibility, bringing persons to responsibility only on the basis of any connection between them and the perpetrator. Responsibility for guiltResponsibility can come only if there is guilt of the offender, which means the person's awareness of the inadmissibility (illegality) of his behavior and the results caused by it. If the person is innocent, then despite the severity of the act, he cannot be held accountable. At the same time, in exceptional cases, the norms of civil law allow liability without fault, i.e., for the very fact of committing an unlawful, asocial phenomenon. In particular, an organization or a citizen - the owner of a source of increased danger is obliged to compensate for the damage caused by this source (for example, a moving car), even when they are not guilty of causing damage (Article 1079 of the Civil Code of the Russian Federation). How is the guilt of the offender determined? Who has to prove it? In different branches of law, this issue is solved differently. In criminal law, when a person is held criminally liable, there is a presumption of innocence. A person is presumed innocent until proven otherwise. The guilt of the accused is proved by a state body, while he himself is relieved of the need to prove his innocence. In civil law, there is another presumption - the guilt of the tortfeasor: a person, in the presence of an objective side of the offense, is assumed to be guilty until he proves the opposite. Both presumptions serve as a means of protecting the interests of the individual, his personal and property rights. In the first case, we are talking about the personality of the offender, in the second - about the interests of the person who suffered damage from the offense. The inadmissibility of doubling liability is the inadmissibility of combining two or more types of legal liability for one offense. This does not mean that both the main and additional punishment (for example, imprisonment and confiscation of property) cannot be imposed for a crime. However, for one violation, the perpetrator can be punished only once. 5. Grounds for legal liability The grounds for liability are those circumstances, the presence of which makes liability possible (necessary), and the absence of which excludes it. Legal liability arises only by virtue of the prescriptions of the rules of law based on the decision of the law enforcement authority. Its actual basis is an offense. It is known that it is characterized by a combination of various features that form the composition of the offense. A person can be held liable only if all elements of the composition are present in his action. At the same time, the offense itself does not automatically give rise to responsibility, does not entail the use of state coercive measures, but is only the basis for such application. For the real implementation of legal responsibility, a law enforcement act is necessary - a decision of the competent authority, which is assigned legal responsibility, establishes the volume and form of coercive measures against a specific person. This may be a court verdict, an order from the administration, etc. In some cases, the law provides grounds not only for liability, but also for exemption from it and from punishment. Thus, a person who has committed an act containing signs of a crime may be exempted from criminal liability if it is recognized that by the time the investigation or consideration of the case in court, due to a change in the situation, the act has lost the character of a socially dangerous one (Article 77 of the Criminal Code of the Russian Federation). Exemption from criminal liability and from the application of punishment provides, in particular, for the transfer of a minor under the supervision of parents or persons replacing them, or a specialized state body. The possibility of exemption from liability is also fixed by the norms of other branches of law (for example, Art. 22 of the Code of Administrative Offenses). 6. The procedure for assigning legal liability The variety of factual circumstances that imply legal liability requires a certain procedure for their detection and bringing a person to responsibility. Legal responsibility is characterized by clear normative regulation of its implementation. Such regulation is necessary to maximize the provision and protection of the rights and legitimate interests of citizens and other entities. The procedure for imposing legal responsibility is established by the rules of procedural law, which, in the presence of a certain fact, give rise to procedural legal relations through which, as through their form, relations of legal responsibility are manifested. Clear regulation allows you to record as accurately as possible all the circumstances of the case, the composition of the offense, while ensuring the rights of all participants in the process. Of course, unnecessarily cumbersome, complicated forms of consideration in some cases can also play a negative role, giving rise to formalism, red tape, etc. However, the absence of procedural regulation in some cases, the mechanism for assigning responsibility, causes an even greater evil. Of course, the degree of regulation of different types of legal liability is different. The most rigidly regulated are criminal and administrative liability, which are punitive and penal in nature. For example, the procedure for bringing to criminal responsibility is regulated by the Code of Criminal Procedure, which contains more than 400 articles. A less rigid procedure for bringing, for example, disciplinary responsibility of workers and employees. However, simplification and violation of the established procedure are also unacceptable here. 7. Types of legal liability Legal liability cannot be exercised "in general". In real life, it is always quite definite. In certain types of responsibility, its general features manifest themselves in different ways, which determines the specifics of their regulation and implementation. In science, the classification of types of legal liability is carried out on a variety of grounds: by the bodies exercising liability, by the nature of sanctions, by functions, etc. The most widespread division of types of liability by industry. On this basis, a distinction is made between criminal, administrative, civil, disciplinary and material liability. Each of the types has a specific basis (type of offense), a special procedure for implementation, specific coercive measures. Criminal liability is the most severe type of liability. It comes for the commission of crimes and, unlike other types of liability, is established only by law. No other normative acts may define socially dangerous acts as criminal and establish liability measures for them. In the Russian Federation, an exhaustive list of crimes is recorded in the Criminal Code. The procedure for bringing to criminal liability is regulated by the Code of Criminal Procedure. Only the court has the power to prosecute. No one can be found guilty of committing a crime, and also subjected to criminal punishment except by a court verdict and in accordance with the law (Article 13 of the Code of Criminal Procedure of the RSFSR). Measures of criminal punishment are the most severe forms of state coercion, affecting mainly the personality of the perpetrator: deprivation of liberty, corrective labor, confiscation of property, etc. The use of the death penalty - execution by firing squad - is allowed as an exceptional measure of punishment. The basis of the procedural form of criminal liability, as mentioned, is the presumption of innocence. Administrative responsibility comes for the commission of administrative offenses provided for by the Code of Administrative Offenses. In addition, this responsibility may be determined by decrees of the President of the Russian Federation, resolutions of the Government of the Russian Federation and regulations of the constituent entities of the Federation. Cases of administrative offenses are considered by the competent government bodies, the range of which is enshrined in Ch. 16 of the Code of Administrative Offenses (administrative commissions, commissions for juvenile affairs, people's courts, internal affairs bodies, customs authorities, specialized security and supervision bodies, etc.). Measures of administrative coercion - warning, fine, deprivation of a special right, administrative arrest. Civil liability arises for violations of contractual obligations of a property nature or for causing non-contractual property damage, i.e. for committing a civil tort. Its essence consists in forcing a person to bear negative property consequences. Full compensation for harm is the basic principle of civil liability (Article 1064 of the Civil Code of the Russian Federation). Compensation for losses in some cases is supplemented by penalties, such as payment of a penalty. The assignment of this type of responsibility is carried out by judicial (general or arbitration court) or administrative bodies (Article 11 of the Civil Code of the Russian Federation). In this case, the plaintiff is (along with the state body) the person whose right has been violated. Disciplinary responsibility arises as a result of committing disciplinary offenses. The specificity of their unlawfulness lies in the fact that in this case it is not a prohibitive norm that is violated, but a positive rule that fixes the employee's labor duties. A person exercising administrative and disciplinary power over a specific employee can bring to disciplinary responsibility. There are three types of disciplinary liability: in accordance with the rules of internal labor regulations, in the order of subordination and in accordance with disciplinary charters and regulations. Measures of disciplinary responsibility - reprimand, severe reprimand, dismissal, etc. The liability of workers and employees for damage caused to the enterprise, institution, is the need to compensate for the damage in the manner prescribed by law. The basis of this type of liability is damage caused during work to the enterprise with which the employee has an employment relationship. The amount of damages to be compensated is determined as a percentage of wages (1/3, 2/3 of monthly earnings). In addition to those indicated as an independent type of responsibility, the literature highlights the cancellation of acts that contradict the law (such a cancellation is provided, for example, by Article 13 of the Civil Code of the Russian Federation). Despite a certain proximity to legal liability and the significance of this legal phenomenon, we believe that it differs from liability. 8. Legal liability and government enforcement Legal liability is primarily coercion. It is known that coercive influence exists in every human society. But legal responsibility is not coercion "in general", but state coercion. Its peculiarity is that it is carried out on behalf of the state by state bodies. Another feature of this coercion is its legal nature, due to which it also acts as legal coercion. The legal nature of state coercion lies in the fact that it is implemented only by the competent authorities, in the forms specified by law and on legal grounds. Often, state coercion is reduced solely to legal responsibility, and any coercive influence on the part of the state is interpreted as legal responsibility. However, the analysis of the current legislation and the practice of its application do not give grounds for such a conclusion. Legal responsibility is not the only measure of state coercion, since state coercion is an objective property of law and state coercion pursues various goals in the process of legal regulation. What are these measures? First of all, these are measures to protect subjective rights. Their essence lies in the fact that in the cases specified in the law, the state applies coercive measures in order to restore the violated right and protect subjective rights without bringing the violator to justice. These are the forced seizure of property from someone else's illegal possession (vindication), the forced collection of alimony for the maintenance of children, etc. And although in this case coercion is directed at the offender (for example, at a parent who evades paying alimony), the purpose of punishment, punishment of the guilty are missing here. These measures are enshrined not in the sanctions of legal norms, but in their dispositions. The measures of state coercion also include measures of restraint. They are used to prevent, suppress the offense. Since in this case there is no offense, there is no purpose of punishing the guilty person. Preventive measures include detention, search, inspection of luggage, etc. They are of a legal nature and are carried out in the manner and on the grounds established by law. For example, ch. 19 of the Code of Administrative Offenses regulates the procedure for administrative detention, inspection of things, seizure of things and documents. The legislation also provides for other specific measures of state coercion that are not liability. These are, for example, compulsory measures of educational influence applied to minors (incapacitated) persons for committing socially dangerous acts (Articles 90, 91 of the Criminal Code of the Russian Federation). They also do not carry elements of punishment. Measures of a medical nature have the same specificity - compulsory treatment in conditions that ensure public safety for persons who have committed socially dangerous acts in a state of insanity (placement of a mentally ill offender in a psychiatric hospital - Article 99 of the Criminal Code of the Russian Federation). A specific measure of state coercion is requisition - the seizure in emergency cases of property from owners in state or public interests with the payment of its value (Article 242 of the Civil Code of the Russian Federation). All these measures are of a state-legal nature and are carried out on a legal basis. 9. Legal responsibility in the system of legal categories Of great scientific and practical importance is the delimitation of liability from similar legal phenomena, the determination of its place in the system of legal categories. As a legal phenomenon, legal responsibility is organically and functionally interconnected with other legal phenomena. Expressing itself in them in its own way, it does not lose its specificity. First of all, legal responsibility is connected with legal obligation. Some authors (for example, S.N. Bratus) generally consider responsibility as a forced fulfillment of an obligation. One cannot agree with such an understanding, because here responsibility is, in fact, identified with protective measures. Legal responsibility really carries an obligation in its content. But this is a new obligation, previously not available to the offender, to undergo coercive measures for the offense. A law-abiding subject does not and should not have such an obligation. And if he himself, even under the threat of coercion or directly under coercion, fulfilled his duty, no additional obligation arises for him. He does not suffer any negative consequences, deprivations, which is characteristic of responsibility. Legal responsibility is inseparable from the sanctions of legal norms. The sanction, as you know, is a structural part of the norm, containing indications of the type and measures of state coercion that should occur if the requirements of the disposition are violated. But before the offense, the coercive measures formally enshrined in the sanction remain potential. Thus, legal responsibility can be interpreted as the implementation of the sanction of a legal norm in a specific case and in relation to a specific person. A large number of scientists interpret legal responsibility as a specific protective relationship between the state and the offender. An offense as a legal fact gives rise, of course, to a protective legal relationship, within the framework of which responsibility is realized. However, without the enforcement activities of the competent authority, liability can only be potential. Recently, the concept of the so-called positive legal liability has become popular in legal science. Under it, some authors understand the active implementation of legal obligations, that is, responsible lawful behavior in the legal sphere. In our opinion, in this case, it is not entirely correct to use the term "legal", referring to legal phenomena that do not have signs inherent in law. As you know, any legal phenomenon is characterized by a connection with law and the state, and hence - formal certainty, state coercion and procedural form of implementation. Responsibility in its positive, prospective meaning does not have these characteristics. This is a social phenomenon, not a legal one. And the fact that general social positive responsibility is expressed in the activities of people in the legal sphere does not make it legal. Legal responsibility, of course, is a kind of social responsibility. But legal mediation gives it specific features that allow it to be interpreted only in a negative (retrospective) plan. What has been said once again shows how important is the in-depth scientific development of legal phenomena, a comprehensive study of the problems of the theory of state and law. Chapter 28 1. Legality is the most important legal category Legality is a fundamental category of all legal science and practice, and its level and state serve as the main criteria for assessing the legal life of society and its citizens. Law is a factor in social life. But its reality is determined not only by the fact that it finds expression in formal legal acts - laws, decrees, resolutions, codes and other systematized collections. The right is real, first of all, because the imperious will expressed in laws is embodied in the behavior of people - citizens who execute the law, persons entering into relationships by concluding agreements, judges and other officials who apply the law. Law by its nature is such that it cannot exist outside of embodiment in legal relations. Even the most perfect law is alive only when it is fulfilled, it affects social relations, the consciousness and behavior of people. It is this side of law, connected with the life of the law, its effectiveness, and is characterized by the concept of "legality". Legality, however, is not identical with the implementation of the law, its content is not identical with the implementation of legal norms. This side of legal regulation is covered by such legal categories as "implementation of law", "application of law", "lawful behavior", "legal relationship", "effectiveness of law". All of them are directly related to the operation of law, but describe it only from one side. "Lawful behavior" determines the actions of subjects that comply with the rules of law, "legal relationship" indicates the legal connection of its participants, "effectiveness of law" - the effectiveness of legal influence, etc. Legality is a complex category that covers all aspects of the life of law, its effectiveness , regulation of public life in general. The category of "legality" fixes the socially necessary dependencies both within the law, considered from its normative side, and between it and the practical impact of the imperious will on people's behavior, and reflects the attitude of society towards them. Legality expresses the general principle of society's attitude to law as a whole. Therefore, its content is considered in three aspects: a) in terms of the "legal" nature of public life; b) from the standpoint of the requirement of universal respect for the law and its mandatory implementation by all subjects; c) from the point of view of the requirement of unconditional protection and real provision of the rights, interests of citizens and the protection of law and order in general from any arbitrariness. Consequently, the content of legality is connected both with the behavior of the subjects exercising the right, and with the activities of state bodies that ensure its formation, implementation and protection. In the recent past, domestic science analyzed legality mainly in the second aspect, interpreted it as a requirement for strict observance of the rule of law by all its subjects. This is essentially a correct understanding, but it reflects the content and essence of this phenomenon one-sidedly. In this case, the requirement of legality applies only to citizens and their organizations, bodies directly exercising their rights and obligations. The activity of the bodies providing legal regulation (law-making and law enforcement) is outside its content. This understanding unilaterally oriented legal practice as well. Ensuring the rule of law was reduced mainly to the work of supervisory and law enforcement agencies - the identification of violators of legal regulations and their subsequent punishment. The result of this was the accusatory bias in their activities. Even the court was considered as a law enforcement body, and not a body of justice, guaranteeing the protection of the rights and freedoms of citizens and their associations. Such a concept of legality, which satisfies the needs of a totalitarian regime, does not at all ensure the normal functioning of society in a democracy, and even more so does not contribute to the formation and strengthening of the rule of law and society. Such an interpretation of legality is the result of the identification of law and law, when any normative act emanating from the state (even inhumane, reactionary) is "law" and, accordingly, requires strict implementation. However, these acts do not provide the goals of legal regulation, legality. On the contrary, they give rise to social tension, limit the freedom of citizens, their natural rights, allow lawlessness and arbitrariness in the activities of officials. In addition, it is easy to see that with this understanding of legality, the emphasis is only on the implementation of the rules of law, and the question of the content of these rules, which, as you know, are largely of a volitional nature, is bypassed. Considered from the broadest positions, legality is a complex political and legal phenomenon that reflects the legal nature of the organization of social and political life, the organic connection between law and power, law and the state. It is no coincidence that earlier the theory of the rule of law had a different name - "the rule of law." 2. Content of legality An analysis of legality in the broad sense of the word makes it possible to distinguish in its content the following independent aspects of the dialectic of the legal, juridical, and state-political. Legality is inseparable from the universal validity of law. It is this moment that has received the greatest reflection in science, in most definitions of legality. In this case, legality characterizes the right, taken from the point of view of its implementation. The main thing here is the requirement of strict implementation of laws and normative acts based on them. In other words, legality in this sense requires the conformity of the behavior of the subjects of public relations with the prescriptions of legal norms, i.e., ensuring the real lawful behavior of all their participants. This side of legality follows from the very fact of the existence of law as a system of generally binding rules. From these positions, one can speak of legality as a condition for the life of a state-organized society. Another facet of the phenomenon under study is identified with the idea of legality, which is understood as the idea that is being formed in the public legal consciousness about the expediency and necessity of such a real situation, when there is no room for arbitrariness, the universality of law, the actual realization of rights and freedoms will actually be achieved. It is no coincidence that legality is interpreted as a principle of law, which expresses in a concentrated manner the main features of the latter, its properties, considered in action, in the process of implementation. As a result, law is also analyzed as a force that ensures the organization of social relations. As a general legal principle, legality penetrates into the flesh of legal matter, determines its formation, functioning, development and, in particular, such a sign of law as the rule of law and subnormativity of law enforcement acts. Understood as a method of state management of society, legality assumes that the state performs its functions exclusively by legal means - by adopting normative acts and ensuring their rigorous implementation. And since legal regulation extends to various spheres of public life, sufficient completeness of its regulation is necessary. At the same time, the state not only formally consolidates legal norms, but also provides (by political, organizational, legal means) their implementation and protection of rights. In such a state, arbitrariness in the activities of officials is unacceptable, the adoption of subjective, voluntaristic decisions, the solution of political issues by force are excluded. A special place in the activities of the state is given to legislative and judicial bodies. At the same time, legality is the principle of the activity of the state. The state, all its bodies, organizations and institutions are themselves bound by legal norms, act within their framework and in the name of their implementation. Legality, considered from this side, serves as a principle not for everyone, but only for a democratic state. In other words, legality is the antithesis of arbitrariness and lawlessness, and above all the lawlessness of the state power itself, arbitrariness perpetrated by state bodies and its officials. Most clearly, this principle is manifested in the rule of law, determining its essence. Such a state can also be defined as a state of the strictest legality. At the same time, the demand for the realization of law, the strict implementation of legal prescriptions into practice is not a formal requirement, not an end in itself, but a condition for the normal functioning of society and the state, ensuring order, organization and discipline. Thanks to the rule of law, the ideas of justice, humanism, personal and public freedom are being introduced into society. Therefore, in a broad socio-political sense, legality can be considered a regime of socio-political life. This is a regime in which the activities of all subjects are based on the law, and the ideas of law, humanism, justice, freedom and responsibility dominate over personal, group, class interests. The rule of law is such a moral and political atmosphere in which the ideas of law, humanism, justice dominate in public life, when the exact and steady observance of laws, the reality and inviolability of the rights of citizens are the basis of the life of society, its citizens. Even Aristotle considered legality a sign of the best state form - polity. Hegel also opposed a truly democratic state, where law and individual freedom reign, to despotism - a state of lawlessness in which a special will as such, whether it be the will of the monarch or the people (ochlocracy), has the force of law or, rather, replaces the law. Consequently, legality is such a political and legal regime, such living conditions, such a legal atmosphere that protect the individual from the arbitrariness of power, the mass of people - from anarchy, society as a whole - from violence, chaos, disorder. 3. Requirements of legality As a regime of social and political life, legality is not a definite, established order of relations. In this sense, it would be identical to the rule of law. Legality acts as a necessity, which is expressed in a system of certain objective requirements for all subjects, participants in public life, regulated by law. One part of these requirements is addressed to citizens, organizations, the other - to various branches of state power (legislative, executive, judicial). Let's consider these requirements in more detail. The embodiment of the idea of the rule of law in the life of society, the stateThis idea was put forward by Aristotle, believing that in a democratic society the law should rule over everyone. We are talking about the fact that in the regime of legality, it is law that plays the main role in regulating social relations. It is this, and not personal, ideological, political and other similar motives that should underlie social regulation. What has been said in no way means a call for the introduction of total legal regulation of all spheres of life. Only those relations that objectively need it should be regulated by law. Moreover, the legislation must be perfect from the technical side, sufficiently clear, definite, not allowing arbitrary or contradictory interpretation and application, and not have gaps. However, this is only one aspect of the issue. Emphasizing the rule of law, it should be remembered that law and law are not identical concepts. Political practice shows that, for example, under totalitarian regimes, despotic forms of government, absolute monarchies, the laws themselves act as an expression of arbitrariness. But under "a lawless regime, there can be no legal action," and "laws against the trend, laws that do not give objective norms, are terrorist laws." Legality requires that, given the universal regulation of social relations, the content of the law, by-laws, normative acts always correspond to the idea of law, "the legal nature of things." A humane, fair, specifically "legal" decision should be enshrined in legislation (this requirement of legality is also defined by the term "lawfulness"). Only in the presence of legislation adequate to the objective nature of social relations, the basic legal principles, the ideas of freedom, humanism and justice, is the regime of legality ensured. Law supremacyThe law is an act of the highest bodies of state power, directly expressing the will of the people, the interests of civil society. Therefore, legality is associated with the dominance, first of all, of laws. Any publication of legal norms that contradict the law is its violation, as well as the exact fulfillment of the requirements of a normative act that contradicts the law. The constitution, the fundamental law of the state, has the highest legal force. Therefore, in the content of legality, constitutional legality stands out as the most important component. The rule of law is manifested in the rule of not only the legislative content, but also the form. This means that normative acts must be adopted in the order and form strictly established by law. Only then will they fully express the will of the people, the interests of society, the basic ideas and principles of law, and ensure the regime of genuine legality. Equality of all before the lawEveryone must be equal before the law. Everyone should have an equal obligation to comply with legal regulations, in equal conditions everyone should have equal rights and not have advantages, all rights should be equally protected. This principle was preached by Cicero, arguing that "everyone should fall under the law." In other words, it is necessary to put into practice the idea of justice contained in law, guaranteeing the individual from abuse by other subjects, including government officials. Strict observance (execution) of legal acts by all subjects of lawThis requirement dictates the need for the implementation of government regulations (obligations and prohibitions), their unconditional obligation for all subjects of law. Ensuring the strict realization of rights and freedomsThis requirement is addressed not to the authorized subject (which may or may not exercise the right at its own discretion), but to the competent authorities of the state. It is not enough to give citizens rights. It is important to create conditions that ensure their implementation, a system of organizational and legal measures that guarantee their protection. The Constitution of the Russian Federation provided citizens with a very wide range of rights and freedoms. However, many of them are still not provided with a sufficiently effective implementation mechanism, others are not supported economically. The result here may be the inferiority of constitutional legality. Proper correct and effective application of the lawThis rule is addressed to state bodies whose competence includes the obligation to ensure the implementation of legal norms. Recall that the application of law is the activity of the competent state bodies to ensure the implementation of the rule of law. The point is not only that these bodies must operate strictly within the law. Legitimacy needs effective law enforcement, which implies the prevention of red tape, bureaucracy, indifference to the interests of people, a timely response to any statements of citizens about the infringement of their rights and freedoms, and the issuance of effective law enforcement acts. Consistent fight against offensesLegality requires that any deviations from the provisions of the law be revealed in a timely manner, the consequences of offenses are eliminated, and those responsible for their commission are held accountable. Inadmissibility of arbitrariness in the activities of officialsLegality is the opposite of arbitrariness - an activity based not on the rule of law, but on subjectivist, arbitrary decisions. Officials, when making an imperious decision, should be guided not by momentary personal or group interests, but by specific legal regulations, and take into account the interests of society, the state, legal principles and moral requirements. This rule is addressed not only to law enforcement, but also to law-making bodies, which must eliminate gaps and contradictions in law that create conditions for arbitrariness, subjectivism, voluntarism. In view of the foregoing, the following definition of legality can be given. Legality is a socio-political regime consisting in the dominance of law and law in public life, the strict implementation of the prescriptions of legal norms by all participants in public relations, the consistent fight against offenses and arbitrariness in the activities of officials, in ensuring order and organization in society. 4. Basic principles of legality Genuine, real (rather than formal) legality should be based on certain principles, fundamental principles that ensure its democratic, humane nature. What are these principles? Unity of legalityWith all the variety of existing laws and regulations, with all local features, the rule of law should be the same for the whole country. The understanding and application of the laws must be the same throughout its territory. Attempts to create in each republic, region, district (and even more so at a specific enterprise) their own legality, different from the national one, are unacceptable. Unfortunately, in our country this principle is not always clearly implemented, some regions adopt regulations that contradict federal laws and even the Constitution of the Russian Federation. Such a situation violates the unity of legality, reduces the effectiveness of legal regulation, and introduces disorganization into social relations. The unity of legality, however, does not mean a template in the application of legal acts, infringement of the independence and initiative of the localities. The point is only that, showing initiative, they should not allow derogations from general rights, so that taking into account the uniqueness of local conditions should not be aimed at circumventing the law. Universality of legalityThis principle characterizes the operation of law in a circle of persons. Legality cannot be selective; its requirements are addressed to all subjects without exception. Legal prescriptions must be carried out by individual citizens and their associations, officials, state bodies, political parties. There should not be any organization or individual in a society that is excluded from the influence of legality, to which its requirements would not apply. In the literature, the opinion was expressed that only authorities, and not individual citizens, can be subjects of legality, since the latter allegedly do not violate this regime by their actions. Indeed, the illegal activities of state bodies, officials endowed with power, undermine the very basis of legality, their consequences are very dangerous for society and the individual. It is no coincidence that most of the requirements of legality are addressed to the state and its bodies. However, if the offenses of citizens take on a mass character, if there is an increase in crime, the rule of law is certainly violated. Therefore, there is no reason to exclude citizens from the number of subjects of legality, although, of course, their role in ensuring it is not comparable with the same role of state bodies. The expediency of legalityThe criterion for evaluating the role of legality should be how it contributes to the achievement of the goals of the state and society, to what extent it ensures the solution of the tasks of social progress, the protection of the rights and freedoms of citizens. The expediency of legality follows primarily from the value of law itself as an expression of freedom, responsibility, justice, as a means of ensuring order, organization and discipline. It is in law, in the law, that the highest social expediency is expressed. The foregoing allows us to speak about the presumption of the expediency of the issued normative act. This presumption, in turn, dictates the need for a steady, accurate implementation of legal prescriptions, regardless of the subjective attitude of the subjects of the implementation of the law to its norms. Only a political and legal regime of legality, based on expediency, can protect society from accidents, voluntarism and subjectivism of individuals. By virtue of formal certainty, the law cannot change simultaneously with changing life and therefore often lags behind its requirements, becomes outdated. Laws can be inefficient, imperfect from the technical side. There are frequent cases when such laws are violated precisely for reasons of their obsolescence, imperfection, i.e., inexpediency. From the point of view of the principles of legality, any deviation from the requirements of the law, no matter how they are motivated, cannot be tolerated. Legality, exact adherence to the prescriptions of the law is always expedient. Of course, in a single case, observance of outdated or inefficient legal regulations can cause negative results, but widespread deviation from the requirements of such a law will entail uncertainty, instability of legal regulation, and will harm society and the rule of law. In other words, from the point of view of the goals of legal regulation in any situation, it is advisable to follow the prescriptions of the law, and deviating from them is always inappropriate. Legality is always expedient, and expediency acts as a principle, the basis of legality. Expediency manifests itself somewhat differently in the process of law enforcement, where taking into account the benefits, effectiveness, and consequences of the decision being made is not only acceptable, but also necessary. However, here, too, expediency must be achieved within the framework of legality. Based on the principle of legality, the law itself provides an opportunity to take into account the expediency factor in the course of law enforcement. The rules of law often imply individual regulation, when it is inevitable that subjects take into account the features of a particular case - the choice of an appropriate solution. It is no coincidence that legal norms are predominantly relatively definite in nature. For example, the norms of the Criminal Code do not have absolutely definite sanctions. Some authors, considering the principles of legality, call “the connection of legality with culture”, “the unity of legality and justice”, etc. as such. Without denying such unity, we emphasize that the connections of legality with other phenomena cannot act as principles. In addition, all of them are covered by the content of the principle of expediency. It is also important to note here that due to its principles, legality acts as the most effective, humane, fair regime of socio-political life, and any deviation from these principles, their underestimation leads to violations of the law, belittling its social value, the effectiveness of legal regulation in general. It is necessary to distinguish between legality as a system of formal requirements and real legality. In practice, the requirements of legality are violated to one degree or another, deviations from legal prescriptions are often observed. Consequently, real legality has quantitative indicators that determine its level in a particular society. 5. Legality and legislation The problem of the relationship between legality and legislation is of great theoretical and practical importance. There is an inseparable organic connection between these phenomena, because legality as a phenomenon is associated with the implementation of existing laws and other regulations that form the system of legislation. However, the proximity of these phenomena does not mean their identity. Such an identification is detrimental, first of all, from a practical point of view. It is explained by the obligatory nature of legal prescriptions, which, because of this, are mostly implemented (although the possibility of their violation is not excluded). From this it is concluded that the very fact of the existence of normative acts entails legality. The identification of legislation and legality gives rise to the illusion of a fairly easy solution to the task of implementing and strengthening the latter. One gets the impression that it is enough to issue a good law, and the problems of combating offenses, strengthening the rights and freedoms of citizens will be solved, and many negative phenomena in public life will be eliminated. However, political practice does not give grounds for such an optimistic conclusion. History knows many states where there were a large number of legal acts, laws, but there was no legality. The identification of legislation and legality is not justified from the scientific point of view, because it does not allow to fully reflect the content of such a complex phenomenon as legality. The connection between legality and legislation is complex and contradictory. Since legitimacy consists in requiring the implementation of existing laws, they serve as a condition for its existence. Legislation, therefore, is the basis, the normative base of legality. "The first condition for legality is the law itself," wrote P.I. Knock. Being the basis of legality, legislation largely determines its nature. In particular, the detailed system of Roman law and its codification predetermined the high level of legality in the sphere of property relations in Rome. However, this role of legislation also implies specific requirements for it. First of all, legislation can only be the basis of legality when it is truly "legal", when it reflects the legal ideas of goodness, humanism, justice, and human rights are enshrined. Let us repeat once again that "a law that punishes a way of thinking is not a law issued by the state for its citizens," but "laws against the trend, laws that do not give objective norms, are terrorist laws." Such acts not only do not ensure legality, but also give rise to phenomena opposite to it - lack of rights, arbitrariness, lawlessness of power. The basis of true legality can only be effective legislation that meets the needs of social development. Thus, in the field of property relations in the Russian Federation, the consistent implementation of legality was hampered by the fact that the norms and institutions of civil legislation were outdated and did not satisfy the conditions of market relations. The adoption of a new Civil Code that meets these conditions should not only increase the effectiveness of civil law regulation, but also raise the level of legality in this area. To ensure the necessary level of legality, legislation must not only meet objective needs, but also be technically perfect. When forming it, it is necessary to use modern legal tools, it must have a clear structural organization, be based on modern progressive principles. Inaccurate wordings, gaps and even more so contradictions in the legislation inevitably entail a violation of legal requirements, infringement of the rule of law. A necessary condition for the latter is the implementation in the legislation of such an important principle as the rule of law and the Constitution, because the process of destruction of the rule of law most often begins with gross violations of the provisions of the Constitution, with the adoption of anti-constitutional laws, by-laws that contradict the law. At the same time, it should be borne in mind that legality implies the implementation of not only legal prescriptions, but also the provision, although not legally enshrined, of "generally recognized rights and freedoms of man and citizen" (Article 55 of the Constitution of the Russian Federation). No matter how perfect the system of legislation is, by itself it cannot ensure the rule of law. It is not enough to develop a good law, it is not enough to publish it. It lives, acts only when it is fulfilled. And for this it is necessary to create an effective mechanism for its implementation and protection, to ensure an appropriate level of political and legal culture of citizens and officials exercising the law. The most important thing is that legality must be ensured by an appropriate system of guarantees. 6. Guarantees of legality Despite their importance, the requirements of legality are not implemented automatically, spontaneously. In order for legal prescriptions not to remain on paper (and even more so not to be violated), appropriate conditions and a certain set of organizational, ideological, political, and legal measures are necessary to ensure implementation, i.e., guarantees of legality. To guarantee legality means to make it unshakable. Guarantees of legality are objective conditions and subjective factors, as well as special means that ensure the regime of legality. Among these guarantees, it is necessary to clearly distinguish between general conditions and special means. General conditions are the objective (economic, political, etc.) conditions of social life in which legal regulation is carried out. These conditions create a macro-environment for the implementation of law, its functioning, predetermining to a certain extent and special means to strengthen the rule of law. Often in the literature, general conditions as guarantees of legality are interpreted extremely broadly. Under economic guarantees is understood the existing system of economy, form of ownership, under political - the political system, under social - the class structure of society, etc. Such an understanding of guarantees cannot satisfy the needs of practice, because their influence on the state of legality is ambiguous, sometimes they have on its negative impact. Therefore, the general conditions must be considered specifically, highlighting in them those factors that positively affect the implementation of the right. An important prerequisite for making the best use of favorable conditions in activities to strengthen the rule of law is their maximum possible specification. The economic system, the political system, the dominant ideology can hardly be considered as factors that ensure the rule of law. Let's analyze this situation on the example of property. For a long time it was believed that socialist property (as opposed to private property) in itself is a condition for ensuring the rule of law. Such a conclusion was based on the assumption that it gives a person a sense of the owner, the owner of the means of production, contributing to their preservation, multiplication, protection. However, as we have all seen, socialist property has become the cause of the birth of other phenomena alien to the law - mismanagement, theft, etc. The point, therefore, is to single out from the conditions of social life those that contribute to the strengthening of the rule of law, to create prerequisites for their development and impact on people, and also through the use of organizational measures, special means to neutralize the effect of negative factors. Let us consider these general conditions that act as guarantees of legality. Economic conditionsThis is the state of the economic development of society, the organization of the economic system, etc. The conditions that ensure the rule of law are factors such as the degree of organization in the economic sphere, the rhythmic work of the entire economic organism, the constant growth of labor productivity and production volume, a stable monetary system, etc. e. Such factors most directly affect the state of legality. So, in conditions of economic instability, falling production, breaking economic ties, rising prices, galloping inflation, social tension in society increases, which leads to anarchy, disorganization, and an increase in the number of crimes, and not only economic ones. Political conditionsThe main political condition for stable legality is a strong state power. The strength of state power is determined not by the size of the army, not by the power of the repressive apparatus. A strong state power is a stable, legitimate power that enjoys the support of society and is able to ensure the implementation of the adopted legal prescriptions. A strong state guarantees the stable development of society, the security of people, the effective fight against crime, corruption and other anti-social phenomena. In the context of the disorganization of state power structures, the struggle for power, the inability of the state to ensure the implementation of decisions made, the low level of executive discipline, the flourishing of bureaucracy, corruption, legality not only does not increase, but even decreases, and to a dangerous limit. A strong state in no way means the centralization of state power, an authoritarian regime that does not provide, but, on the contrary, denies the rule of law. An important condition for strengthening the state, ensuring law and order is democracy. The democratic state is not a weak, amorphous power. This is a system of strong and at the same time fully responsible to the people of power, based on democratic principles of formation and functioning (separation of powers, parliamentarism, publicity, the supremacy of the Constitution, etc.). Ideological conditionsThe state of legality is largely determined by the level of political, legal and general culture of the population. Legality implies such a level of legal culture, when respect for the law, the law is the personal conviction of a person, and not only an ordinary citizen, but first of all a civil servant, a legislator. The necessary level of culture is provided by the organization of legal propaganda, a clear system of educating citizens of high moral qualities, patriotism, responsibility, a sense of law and legality. In the context of the destruction of the education system, the ideological vacuum is filled with views alien to society that negatively affect the state of discipline, organization, legality (spread of pornography, the rule of force, etc.), contributing to the growth of offenses, crime, threatening the regime of legality. social conditionsLaw-abiding citizens, their respect for the law, the implementation of its instructions largely depend on the situation that has developed in the social sphere. The fall in the living standards of the population, the growth of unemployment, the cost of living, social services most directly affect the level of legality, provoking citizens to look for ways of illegal enrichment, circumventing the law, giving rise to national and social conflicts, etc. Strong legality is possible only in conditions of social stability confidence of citizens in the inviolability of their social rights and freedoms. Legal conditionsThe state of legality as a political and legal phenomenon is determined by the state of the law itself, the system of legislation. The current legislation should be sufficiently complete, stable, provided with a high level of legal technique, the necessary mechanisms for implementation and protection. Important for the implementation of the law and the level of legality are the legal means used by the legislator, methods, methods and types of legal regulation, the principles on which the legislation is based. Thus, legislation lagging behind the dynamic development of social relations makes it difficult to combat crime. Corresponding subjective factors are also guarantees of legality. Among them, one can note the state of legal science, the completeness and development of progressive humanistic ideas, provisions, scientific and theoretical constructions in it. The scientific and theoretical concepts dominating science have a direct impact on the level of legality. For example, ignoring such "bourgeois" (as they were called until recently) theories, such as the idea of a rule of law state, separation of powers, parliamentarism, etc., caused undeniable damage in ensuring the rule of law. its provisions in the legislative and law enforcement practice allow to strengthen the rule of law in the activities of state bodies. The manifestations of lawlessness and arbitrariness in their activities were facilitated by theoretical provisions on the intensification of the class struggle against the construction of socialism, on the withering away of the state, on the reduction of the scope of legal regulation, etc. The level of legality is also determined by the effective activity of the political leadership, the correct choice of priorities by the leaders in making political decisions, the readiness and ability of the relevant bodies to fight for the strengthening of the rule of law. Special means of ensuring the rule of law are legal and organizational means designed exclusively to ensure the rule of law. Among them are legal and organizational guarantees (means). Legal guarantees - a set of means enshrined in the legislation, as well as organizational and legal activities for their application, aimed at ensuring the rule of law, at the unhindered exercise, protection of rights and freedoms. Legal guarantees are linked to and determined by the general terms and conditions. They legally mediate them, acting as their legal form, without merging, however, with them and without losing their legal quality (formal-normative consolidation, procedural order of implementation, state provision). At the same time, legal guarantees are unthinkable outside of their social content. Among the legal guarantees are the following. Means of detection, (detection) of offenses. These include the activities of the prosecutor's office, preliminary investigation bodies, the Constitutional Court, etc. These guarantees are associated with the work of the competent state bodies aimed at detecting offenses in order to suppress them and eliminate their consequences. Some guarantees are related to the activities of citizens. Such, for example, is the constitutional right to appeal against illegal actions of officials in court. Means of crime prevention. These are means enshrined in law to prevent possible offenses. For example, Art. 35 of the Labor Code provides that termination of an employment contract at the initiative of the administration (Article 33 of the Labor Code) is possible only with the prior consent of the trade union body. Such consent has the only purpose - to prevent a possible violation by the administration of the labor rights of citizens, to prevent illegal dismissal. A preventive role is also played by such means as baggage screening at the airport, customs screening, etc. Means of suppression of offenses. These include means aimed at suppressing, preventing offenses, violations of the rights and freedoms of citizens and organizations. These are detention, arrest, search, undertaking not to leave, other preventive measures, cancellation of illegal acts. Measures to protect and restore violated rights, eliminate the consequences of offenses. These are the forced collection of funds for the maintenance of a child (alimony), vindication (forced seizure of property from someone else's illegal possession), etc. Legal liability. It refers to the punishment of a person guilty of an offense. This tool is the most important and necessary for strengthening the rule of law, and its effectiveness is determined not by cruelty, but by inevitability. Among legal guarantees, a special role is given to procedural guarantees, because the process is a form of life of substantive law, formally enshrined rights and freedoms can receive real life only if they have procedural support. One can rightly be proud of the breadth of the legal status of the individual, enshrined in the Constitution of the Russian Federation. However, this does not give grounds to turn a blind eye to the shortcomings of the legal mechanism for the implementation of these rights, their provision and protection. The legal mechanism for the implementation of legal norms presupposes the existence of a clear regulatory framework. The constitutional norms that enshrine rights and freedoms are quite definite, although many of them are not supported by current legislation, a clear legal mechanism for implementation, which makes their implementation difficult. Finally, the most important guarantee of legality is justice - the activities of the courts, carried out by considering and resolving civil and criminal cases in order to strengthen the rule of law in every possible way. Organizational guarantees are understood as various organizational measures that ensure the strengthening of the rule of law, the fight against offenses, and the protection of the rights of citizens. This includes personnel, organizational measures to create conditions for the normal operation of jurisdictional and law enforcement agencies, the formation of special units in the structure of the latter (to combat organized crime, corruption, etc.). Emphasizing the role of jurisdictional and law enforcement agencies in ensuring the rule of law, their importance cannot be exaggerated, absolutized, because the effectiveness of their work is largely determined by objective conditions. However, often the responsibility for the state of legality, for the growth of crime in the region, in the country is assigned only to the prosecutor's office, the Ministry of Internal Affairs. The problem of combating crime often comes down to just a change in the leadership of these bodies without a significant change in conditions, which cannot provide adequate guarantees of legality. Only purposeful work to improve the objective (general) conditions, the effective use of special means, the constant development of legislation will ensure stable legality and a stable legal order - the basis of a normal life of society. 7. Law and order Closely connected with legality is another legal phenomenon - the rule of law (legal order). The concept of "law and order" is widely used in the current legislation, law enforcement is the most important function of the state. Despite this, domestic science has not yet developed a single definition of this phenomenon. The most widespread view of the rule of law as implemented legality, however, such an interpretation is not entirely correct. Indeed, these phenomena are closely interrelated. In the formation of the rule of law, legality acts as a fundamental principle of the activities of state bodies, officials and citizens. But "law and order" cannot develop as a consequence of a single principle, even a fundamental one... Therefore, it would be more accurate to say that the rule of law develops as a result of the implementation of all legal prescriptions in accordance with the principle of legality. The basis of the rule of law is not legality, but law. Legality is a condition of the rule of law. Let us turn to the etymology of the word "law and order". First of all, the rule of law is order, organization, stability. Consequently, the rule of law characterizes the degree of orderliness of social relations, acts as an antipode to chaos, anarchy, disorganization. Further, the rule of law is a legal order, a state of social relations programmed by law. The legal order can be considered as the goal of legal regulation, which is the creation, with the help of law and legal means, of such an order and such a regulation of social relations that serve to preserve and strengthen the existing system. But the rule of law is not only the goal, but also the result of legal mediation - the actual actual regulation of social relations. Based on the foregoing, the rule of law can be defined as an organization of social life based on law and legality, reflecting the qualitative state of social relations at a certain stage in the development of society. Consider the features of this phenomenon. 1. Law and order is a state of orderliness, organization of public life. 2. This is the procedure provided for by the rule of law. 3. The rule of law arises as a result of the actual implementation of legal norms, their implementation, is the result of legal regulation. 4. It is provided by the state. As you know, far from all legal norms are implemented everywhere, deviations from the requirements of legal norms and offenses are not uncommon. Therefore, it is necessary to distinguish between the actually existing legal order (the result of legal regulation) and the legal order, which the legislator sought to achieve at one stage or another of the development of society (the goal of legal regulation). The first one depends on the state of social relations in specific conditions, the level of political and legal culture of society, the state of legislation, the nature of legality, etc. Consequently, the rule of law has not only qualitative, but also quantitative characteristics. Therefore, it is no coincidence that in the sphere of the functioning of the state one can note areas of activity to strengthen (strengthen, improve, ensure, protect) the rule of law. The legal order is not due or possible, but the actual state of relations regulated by law, and therefore, with a certain degree of conventionality, it can be characterized as a system of legal relations. What are the principles of law and order? Certainty. The legal order is based on formally defined legal prescriptions, the implementation of which ensures the certainty of social relations. In this, it differs from the system of relations that arise as a result of the action of other social norms, where there are no clear formal guidelines, and the role of subjective moments is very large. Consistency. For the same reason (connection with law), the legal order is not a collection of single, disparate acts of behavior, various legal relations. This is a system of relations, which is based on a single essence of law, the form of ownership prevailing in society, the system of economic relations and is provided by the power of a single state power. Organization. The rule of law does not arise spontaneously, but with the organizing activity of the state and its bodies. State guarantee. The existing legal order is provided by the state, protected by it from violations. It is no coincidence that one of the main functions of the state is the protection of the existing legal order. Sustainability. Arising on the basis of law and ensured by the state, the rule of law is quite stable and sustainable. Attempts to destabilize, violations of law and order are suppressed by the relevant law enforcement agencies. Unity. The nature of the organization is not the same in various spheres of public life. However, based on unified political and legal principles, ensured by the unity of state will and legality, the rule of law is one throughout the country. All its components are equally guaranteed by the state, any violations of it are considered offenses and are suppressed by state coercion. Due to these features, the legal order can be characterized as an order that ensures the stability of public life and social progress. Since it is determined by law and provided by the state, it fixes the most important features and aspects of the socio-economic system, the system of political relations prevailing in the country. Consequently, the legal order includes not only the relations of people in the sphere of civil society, but also the organization of political power itself, that is, the state, based on the rules of law. Even Cicero drew attention to this side of the legal order, asking: "And what is the state, if not the general legal order?" Kant is also close to him, considering the state as "an association of many people subject to legal laws." In other words, the state is both the most important element and the necessary condition of the rule of law. On the one hand, the state, constituted by law and functioning within strictly established limits, constitutes the most important link in the legal order. On the other hand, it is a powerful subject that ensures and protects the rule of law. It is no coincidence that the legal regulation of the activities of state bodies and officials is carried out according to the principle "Only what is expressly permitted is permitted." The rule of law, therefore, can be seen as the unity of law and power. This is an order in which the legal status and relationships of all subjects of public, political and state life are clearly defined by laws and protected by state power. The rule of law is the most adequate form of the reality of such a legal order. The rule of law is not an end in itself, but a socially and historically conditioned universal means and form of expression, institution and organization of freedom and justice in social relations. 8. Law and order and public order The legal order should be distinguished from a close, but not identical phenomenon - the public order, which, like the legal order, is characterized by organization, orderliness of social relations. However, unlike law and order, public order is formed under the influence of not only legal, but also other social norms: moral norms, customs, corporate norms, etc. Consequently, public order is a state of regulation of social relations based on the implementation of all social norms and principles . Public order is ensured primarily by the power of social influence. But this does not mean that his condition is indifferent to the state. On the one hand, the most important part of public order is the rule of law. On the other hand, the state of public order largely determines the state of law and order. It is impossible to regulate the rule of law without affecting the social order, which is therefore often maintained by the coercive power of the state. Yes, Art. 213 of the Criminal Code provides for liability for hooliganism, that is, a gross violation of public order. Thus, law and order and legality are the goal and result of legal regulation, the most important legal and political phenomena, the state of which has a direct impact on public life. Therefore, it is no coincidence that the main activity of professional lawyers is the work on their provision (strengthening). 9. Main ways to strengthen law and order Law and order are the greatest social values, the basis of the normal life of society and its citizens. Therefore, their strengthening is one of the main tasks facing society, one of the main activities of the state, its function. Unfortunately, the state of law and order in our country has reached a critical point. In recent years, the number of offenses has sharply increased, including the most dangerous of them - crimes. Suffice it to say that in 1995, 2 crimes were registered in Russia, almost 755,7% of which were serious. Therefore, the strengthening of the rule of law, the fight against increasing crime are the vital tasks of ours today. There is a fairly widespread opinion that lawyers are primarily to blame for the increase in offenses, who supposedly are not actively fighting lawbreakers. Practice shows the fallacy of such views. Only in recent years has the notion that the roots of crime in our country are remnants of the past in people's minds been overcome. Legal and political practice has proved that the causes of offenses must be sought not in "remnants", not in the past, but in reality. They are generated by those objective conditions (economic, political, social) in which the society is at a particular stage of development. The problem of eliminating violations of the law is not only a legal problem. To solve it, first of all, those objective factors that support, "revive" criminal activity, create conditions for the commission of offenses, for deviations from the requirements of laws, must be eliminated, eliminated. The stabilization of economic relations, the growth of people's material security, their moral education, the strengthening of social ties, the development of democracy are the necessary prerequisites and the most important ways to strengthen law and order. At the same time, it would be wrong to rely only on these objective processes. Society needs special legal, state-power activities to ensure the rule of law. The forms of this activity are very diverse. The main ones are persuasion, legal education, crime prevention, public influence on violators and the use of state coercion measures against them. Persuasion as a method of strengthening the rule of law consists in raising the legal awareness of both citizens and officials. Legal education involves the introduction into the minds of people of knowledge of law, understanding the need to fulfill its requirements, a sense of intolerance to any violations of the law. This is ensured by the creation of a coherent system of legal education, training, propaganda tools and systematic systematic work in this direction. Of great importance is the training of citizens in the ability to fight for their rights, to protect them by legal means. Even R. Iering wrote that the resistance of the individual to wrong, that is, to the violation of the law, is the duty (duty) of empowered citizens in relation to themselves and to society. Crime prevention is closely related to persuasion. Its essence lies in the prevention of possible offenses by carefully studying the causes and conditions that contributed to the commission of violations of the law, and taking measures to eliminate them. The role of the public in ensuring the rule of law should not be discounted either. In our country there is a rich practice of involving it in this activity. Comrades' courts, people's squads, various public formations of citizens did a lot of work to ensure the rule of law and strengthen discipline in labor collectives, at the place of residence, in public places. Unfortunately, in recent years, these traditions have been forgotten, and the ideas of individualism based on the principle "My house is on the edge" are increasingly penetrating into the minds of people. We believe that the process of formation and development of local self-government should entail an increase in the role of the public in solving regional problems, including the strengthening of the rule of law. The most important role here certainly belongs to the state. It is it that implements the functions of protecting freedoms, property, and the rule of law, which are carried out primarily by legal means. The following ways of carrying out these functions can be named: continuous improvement and timely updating of the current legislation, increasing the role of justice, improving the activities of law enforcement and law enforcement agencies. Strengthening the rule of law in society is impossible without ensuring the rule of law in the activities of the state apparatus itself, without eliminating such negative phenomena as corruption. Emphasizing the importance of such a requirement, Marx once wrote that "even among the British, among the nation that most respects the law, the first condition for the observance of legality on the part of the people is that other bodies are kept within the law." And finally, the most important condition for strengthening law and order is the comprehensive deployment of democratic principles in all spheres of public life, including in the activities of the state apparatus. Chapter 29 1. The concept and structure of the legal system The legal system can be defined as an integral complex of legal phenomena, determined by the objective laws of the development of society, conscious and constantly reproduced by people and their organizations (the state) and used by them to achieve their goals. This concept expresses a very important idea, namely: - law is a complex; - its constituent elements are interconnected not randomly, but by necessary connections and relationships; - all legal phenomena of a given society, existing at the same time and in the same space, are connected by general relations, which unite them into a system. In the legal system, the natural needs of people have merged with their thoughts, will and feelings, with legal traditions and an arsenal of technical and legal means, with the actions and activities of their associations. This explains the possibility of combining various legal phenomena in the legal system, the ambiguity of states, as well as the difficulty of their knowledge and classification. When studying this topic, it is advisable to use a systematic approach that allows you to distinguish between five levels of the legal system: - subject-essential; - intellectual and psychological; - normative and regulatory; - organizational and activity; - socially effective. The subject-essential level is singled out in order to emphasize the importance of subjects of law as backbone material factors of the legal system. It is a person (citizen, foreign citizen, stateless person) and his associations (public organizations and movements, joint-stock companies, other commercial and non-profit organizations and the state as a whole), who have rights and bear legal obligations, are the real elements of the legal system. At the intellectual-psychological level, the legal understanding of a particular person and legal consciousness (individual and public) are formed. The totality of such seemingly diverse phenomena as knowledge, emotions, feelings, ideological and religious views and dogmas, moral postulates, allows a person to perceive, evaluate legal reality, develop an attitude towards it and motives for legal behavior. The study of the normative and regulatory level of the legal system allows us to conclude that the norms of law also act as a certain system-forming factor. They objectify the ideal ideas of people about justice and injustice, about the importance of stimulating the development of certain social relations. Legal norms are included in the system as a link with which, one way or another, all its other components are connected. Taken together, they represent and characterize law as such. Legal norms act simultaneously as accumulators and conductors of the state will of the people, built into law, that is, as sources of that political and legal energy with which the entire mass of the normative core of the system is charged. Acting as a carrier of such energy, they, being elements of the legal system, attract to themselves and make all other components work, as a result of which structural and functional blocks of a different order are formed. The norm is the first to experience changes, it begins the real improvement of the legal system. Due to its universal, cross-cutting meaning, the rule of law extends its properties to other levels of the system, serves as a reference point, a unit of measurement of legal matter. The normative section highlights the main social function of the legal system - the regulation of social relations, as well as the main goals and directions of legal influence on the development of society. The organizational and activity level covers all legally formalized connections and relations, forms of realization of law, various types of legal behavior of people, law-making and law enforcement activities of the state and society. The socially productive level of the legal system characterizes, on the one hand, how much a person as a subject of law has mastered the legal reality, how he “lives” in it, and on the other hand, how various regimes and regimes have been formed and how identical to the interests of the individual and society. states that allow one to imagine certain results of the operation of legal norms (legal culture, legality, law and order). At this level, the freedoms, opportunities and requirements inherent in the law are organically woven into social and political matter. Here, the essential qualities of the legal system are most clearly manifested, which are important for the formation and functioning of the political system and civil society. Along with the concept of "legal system" in the domestic legal literature, the terms "legal superstructure", "mechanism of legal regulation", "system of law", "law" are used that are close in meaning and scope, but have an independent meaning. The category "legal superstructure" reveals the location of all legal phenomena in the social system relative to the economic basis, and the concept of "legal system" reflects the internal (structural) functional and systemic connections of legal phenomena. The category "mechanism of legal regulation" is intended to draw attention to the functional side, to the process of regulating social relations, while the "legal system" shows the integrity and interconnection of structural elements, the unity of the states of statics and dynamics of law. The term "system of law" characterizes the institutional internal structure of the normative basis of the legal system - law as such, "the legal system" covers all legal phenomena on the scale of the state and society. 2. Contradictions and patterns of development of the legal system The legal system, as a purely social entity, experiences the influence of various kinds of general political and general civil contradictions of an objective and subjective plan in the process of formation and functioning. However, its development is determined primarily by its own dialectical contradictions, which can be divided into internal and external. The main internal contradiction of the legal system of any society, in our opinion, is that it contains both natural and artificial principles associated with man and the state. The natural-legal side (part) of the legal system reflects the origins of law as an integral quality of human existence. It contains that measure of freedom, due to nature and human communication, which is necessary for the normal existence of a person and the continuation of his kind. Hence the complex of natural rights and duties: - the right to life, property, personal independence, happiness; - the obligation not to encroach on the life, property, freedom of another person. The state-legal beginning of the legal system characterizes three main points: a) what natural rights and duties of a person and to what extent affirms and guarantees positive legislation; b) what new legal opportunities for a person that have arisen as a result of the development of science, culture, the growth of the welfare of society, the state has fixed in regulatory legal acts; c) what legal privileges or legal restrictions are established by the state for people belonging to a certain stratum, class, nation, race, adhering to this or that ideology, professing this or that religion. This is an internal dialectical contradiction of a deep, essential order, which predetermines all other similar phenomena. Its resolution depends on the level of development of the economy, politics and culture of society; resolving, it is each time reborn in a new quality. The characterization of the legal system as fair or unfair, democratic or anti-democratic depends on how fully and accurately the natural law principles are taken into account by the legislator (state) in law-making activities, how adequately the will of the people is expressed in legal institutions. The contradictions between objective subjective law, between the objective laws of the functioning of the legal system and the subjective limits of its architectural and technological construction, between law and law, between the structural elements and components of the legal system should also be attributed to internal ones. The main systematizing external contradiction is the contradiction between the legal system as a whole as a form of existence of economic, socio-cultural and political relations and the actual relations themselves as the content of law. F. Engels emphasized that the course of legal development "consists for the most part only in the fact that first they try to eliminate the contradictions arising from the direct translation of economic relations into legal principles and establish a harmonious legal system, and then the influence and coercive force of further economic development again constantly break this system and draw it into new contradictions." In public life, noted G.V. Plekhanov, "any legal institution sooner or later turns into its own opposite: now it contributes to the satisfaction of certain social needs; now it is useful, it is necessary precisely in view of these needs. Then it begins to satisfy these needs worse and worse; finally, it turns into an obstacle to satisfy them: from being necessary it becomes harmful, and then it is destroyed. The main external contradiction predetermines other, more concrete contradictions and manifests itself in them. For example, this is a contradiction between formal equality, an equal scale of human behavior established by the law and the actual inequality of people to whom this scale is applied, a contradiction between the dynamics of the development of social relations and the stability of the legal system, between the general nature of the legal norm and the individual characteristics of specific relations and their participants. . In the course of resolving contradictions and having a creative impact on the legal sphere of people, the patterns of development of the legal system are crystallized. Being conditioned by the whole complex of needs of social production, tendencies of general political development, they reflect the active role of law in the formation of a civil legal society. As one of the main patterns, one can recognize the gradual and consistent convergence of natural-legal and state-legal principles in the legal system, which occurs with the growth of universal culture, the implementation of moral and humanistic social ideals. The constitution of this regularity is connected with the characteristics of law as a measure of freedom, a guarantee of social justice. Its implementation depends on the implementation of such interrelated and interacting trends as: increasing the degree of expression in the law of the will of the people and its implementation in life, in the behavior and activities of subjects of law; strengthening the role of legal regulation; shifting the center of gravity in legal regulation from prohibitive measures to permitting measures, expansion and intensive use of methods of persuasion, preventive measures, positive incentives. This pattern is of a general historical nature, however, it manifests itself differently in different social systems and at different stages of their development. In some countries, it acts consistently, with increasing force (Switzerland, Holland, USA), in others this process develops spasmodically (Russia, Germany, Spain). Another basic regularity in the development of the legal system is the requirement that legal phenomena correspond to actual social relations. This pattern is also multifaceted, it includes the problems of the adequacy of the reflection of public needs in the rules of law, timely changes in legislation, and the quality of legal regulation. It does not operate automatically, it cuts through accidents and deviations and requires the active participation of people. For its implementation, a special organizational and legal mechanism is needed. Briefly, this mechanism can be represented as follows: new or changed factual relations that require legal formalization legal experimental norms (scale, levels, regions, duration of their action are determined taking into account territorial, national and other points) evaluation of a legal experiment based on sociology, statistics, preparation and publication of a normative act by the competent authorities (with mandatory procedures and expert evaluation of the project); study of the effectiveness of the act; making changes, additions to it, and, if necessary, its cancellation The sequence of operation of the elements of such a mechanism, the possibility of adjustment, the nomenclature of law-making bodies, sociological support services, and everything else can be provided for in the law on the procedure for the development, adoption and implementation of regulatory legal acts. Of great importance for the legal system is the requirement to comply with legal technology, including the implementation of relevant procedures and legal standards, a combination of dynamism and stability of legal phenomena, inhibition and stimulation in law, permissive and permissive types of legal regulation, imperative and dispositive regulation, optimal design of norms, institutions and the system as a whole. 3. The importance of the legal system for the formation and development of civil society Here the following points come to the fore. 1. The social significance of a particular legal system depends primarily on how its main contradiction between natural law and state law principles is resolved. The society that was able to create favorable (democratic) conditions for the consistent and successful resolution of this contradiction is experiencing the beneficial influence of the legal system in the establishment of universal values and ideals. And taking into account the fact that law also acts as a means of resolving social contradictions, there is reason to assert that legal phenomena in their entirety act as, if not a source, then a kind of powerful catalyst for the formation of civil society. 2. The system of special legal guarantees enshrined in the Constitution and other normative legal acts is of great importance for the normal functioning of society in a democratic regime, the implementation of humanistic principles and ideals, and the free development of the individual. This gives citizens and public structures the quality of legal protection, confidence in the unhindered and full exercise of their rights and freedoms, and the fulfillment of duties. 3. Thanks to its systemic and state-imperious qualities, the legal system ensures the organization and stability of intra-system public relations, protects the integrity of the social organism, neutralizes, displaces negative phenomena from public life. Moreover, if under administrative-command, authoritarian regimes, the state, using law as an instrument of coercion and ideological cover, tries to penetrate into all pores of public life and subordinate it to its influence, thus ensuring the integrity of the society, then a developed democratic legal system is able to bind the state itself, to establish the limits of state power and create legal conditions for the unity of the social organism on a voluntary, humanistic basis. 4. The legal system accumulates in itself and fixes for the whole society the moral principles of truth and justice. It reflects many ethical, religious, traditional, positive foundations that have been formed over the centuries-old history of human development. Even the most brutal totalitarian regimes that appear on the historical stage for various reasons are forced to reckon with this and, in addition to direct restrictions enshrined in law, declare general social legal values. The nature of everything legal lies in the fact that it normatively generalizes and guarantees the dominant principles of human civilization - human freedom, orderliness and justice of social relations, and the stability of society. 5. The legal system, due to its internal general humanistic qualities, clear structure, ideological and psychological aura, actively influences the formation of subjective attitudes in people, contributes to the establishment of normal relationships in society. 6. Legal phenomena in cultural terms are of great public importance. On the one hand, the legal system absorbs the historical experience of cultural development, preserves it, acting as a preservative. On the other hand, due to its specificity, it develops its own cultural values (logically verified legal constructions, clear terminology, capacious and concise language, etc.), which become the property of the whole society. Sanctified by the moral and humanistic ideas of truth and justice, legal values organically fit into human existence, acting as an important part of interpersonal relations. Chapter 30. Russian Legal System 1. Historical and socio-cultural origins of the Russian legal system. Its features and connection with the legal systems of the world The formation and development of the Russian legal system took place according to the general laws inherent in the formation and development of any legal system, although these processes had their own characteristics. The deep origins of ideas about the right, fair, normal lie in mythology, in which one or another ethnic group is aware of the surrounding natural and social reality, of itself, its origin, norms and customs of its life. Through legal texts closely related to the texts of the folk oral and poetic tradition, not only certain linguistic formulas and constructions penetrated into the legal system, but also the most stable and deep mythological images and ideas of ancient people about order, harmony and disharmony, violation of order and its restoration, about the act and retribution, the norm, custom and the consequences of their violation, that is, everything that can be considered as a kind of pre-legal material on which the legal system was based during the formation period, from which legal traditions were formed. Moreover, in each culture, these images and ideas were realized in their own concepts, categories, and with greater or lesser depth and solidity entered into the life and habits of the people. For example, in the ancient Russian tradition such ideas were expressed in the categories "truth" and "falsehood", "judgment" and "series", "crime", in the ancient Greek tradition - "wild", Roman - "equitas". It can be said more definitely: many linguistic formulas and constructions found in mythopoetic texts penetrated into the legal fabric because the pre-legal mythological images and ideas expressed with their help, the corresponding mentality of ancient people, entered the legal consciousness. If we compare ancient Russian mythology with the mythology of ethnic groups known for their high legal culture (for example, ancient Greek, ancient Roman), then we can find that ancient Russian mythology, pagan religion is mainly focused on the awareness and understanding of natural phenomena and processes. Slavic mythology was mainly agrarian and natural in nature. Old Russian people did not single out, did not perceive and did not yet realize with sufficient clarity the sociality of their being, its normativity, orderliness and other characteristics that form a pre-legal complex. He was immersed in naturalness, naturalness, in consanguinity (the same natural) ties and dependencies. The pagan religion, as is known, was poor in organizational, moral and social ideals. It is difficult to find in ancient Russian and Russian mythology those images and ideas, plots and ideas that the Greeks, for example, embodied in the myths of Themis (goddess of justice, the basis of law and order) and her daughters Evnomia ("good law"), Dick ("justice") , Irene ("peace"). These latter, although they had archaic, natural-agrarian features, at the same time, being the daughters of Zeus and Themis, streamlined a person’s life, introduced an established periodicity into it, and observed its regular course. Among the Romans, pre-legal ideas were embodied in Justitia ("justice", "law"), a deified (since the 1st century) concept, in Equitas ("justice"), often depicted as a woman with weights. In Russian mythology, we will not find scales - an important and necessary symbol of pre-law for the implementation of legal principles, indicating that people understand such concepts as measure, measure, proportionality of an act and retribution for it, etc. At the same time, Slavic Truth and Krivda, Court (Usud) are in many ways close to the symbol of the Share, i.e., an incomprehensible, transcendent (and not social) force that predetermines both agrarian and natural events and the whole life of a person. This speaks of the Russian man's weak awareness of the possibilities of his social activity, of his subordination to external natural and otherworldly forces. The ethnos, having realized and rethought to a sufficient extent and with sufficient depth, the whole set of pre-legal images and ideas, plots and ideas, is more prepared for the perception and assimilation of legal forms, institutions than the people who have not gone through this entire stage of social and material development, but faced with the legal forms of early class society. Law, the legal system and legal culture are economically associated with individual property, and ideologically, more precisely, spiritually, with a person's awareness of his individuality, independence, and his own essence. These concepts are also close in terms of origin, etymology: individuality, independence and property, appropriation of property, where the word "property" is formed from the word "oneself", and means belonging to the individual. Collective forms of ownership and their corresponding forms of social organization of life (primitive collectivism, various types of communities) at the first stages of the formation and development of society oppose the allocation of individual property, the formation of human individuality, as well as the formation of a full-fledged law, a legal system, which are a means of protecting the individual, individual from the arbitrariness of society and the state. The collective form of the hostel of the Russian peasantry - the community - was one of the fundamental factors in the development of Russian society, which significantly influenced its political and spiritual life and culture. The community is a universal form of organization of agrarian and other early societies through which all the peoples of the world have passed (or are passing). The specifics of the Russian community lies in the slow overcoming of tribal, patriarchal remnants, in the broad rights of the community to all the lands of its territory and the extremely weak development of private property because of this, the significant role of the community in solving economic issues relating to its members, its long existence in national scales, etc. A strong community prevented the formation of an individual principle in economic and spiritual life, created conditions for the almost complete absorption of the person by the world and the rational denial of any personal right. Therefore, the "cost" of personified incarnations of the collective (prince, combatant, communal property), which is the main value in society, was many times higher in early legal monuments and encroachments on them were punished much more severely. For example, the life of a boyar, combatant, and other close associates of the prince, according to Russian Pravda, was estimated at 80 hryvnia fines, and the life of a serf or serf - only 5. Nevertheless, Russian law, the Russian legal system as a whole, like any other legal system, was formed with a focus on personal principles, although at first it was a personality mainly of a representative of the ruling class. Thus, out of 43 articles of the short (one of the earliest) editions of Russkaya Pravda, 40 were directly devoted to protection against criminal encroachments on the person and property (which is only an economic expression of the person). In general, all the first or early legal acts known to history, securing the rights and freedoms of the individual, were created by representatives of the ruling class of owners and aimed primarily at protecting the latter: whether it be Greek or Roman legislation created by the class of slave owners, whether it be any other legislation or separate legal acts . For example, the Magna Carta of 1215 already fixed the provision that no free person can be imprisoned, expelled from the country, deprived of his name except by a sentence passed by judges of equal status and according to the laws of the country. Similar provisions are contained in the famous Habeas corpus act of 1679, the French Declaration of the Rights of Man and Citizen of 1789, etc. Only in the XNUMXth century. the general development of world civilization, the personal principle in culture, the understanding of the self-worth and uniqueness of a person has led to the fact that the law in democratic societies has begun to apply to everyone, has become a tool for protecting everyone and everyone. The formation of the ruling stratum as a bearer of legal principles for a long time was based on blood relations, it was characterized by an understanding of more generic than personal honor. The geopolitical situation in Russia, the need for consolidation in the face of an external threat led to the fact that statehood took shape in the form of despotism, cruelly suppressing its people and, to some extent, the ruling class too. The destruction of the tribal nobility, its replacement by an oprichny, service class caused the growth of servile self-awareness even among the ruling class. The relationship of slavish subordination to the despot, and in fact the denial of all rights and guarantees for oneself, was reflected in the appeal to the despot: even the largest representatives of the ruling stratum called themselves "the last serfs." In the choice of a despotic (and thus, let us add, non-legal) path of development of Rus', "the death of the ruling class played a colossal role." The destruction of the latter occurred not only in the physical sense. He turned into a dependent, although the highest class in society. Therefore, by the way, this estate could hardly have known in a developed state the institution of chivalry - self-defense of one's subjective right, honor (although there were some rudiments of this institution in Rus'). The state subjugated all strata of society and all institutions, including the church. No force could create opposition to him, which alone was capable of giving rise to a full-fledged legal system, to save Russian history from many troubles, suffering and tragic upheavals. The outstanding Russian philosopher V.S. Solovyov connected the general revival and successful development of Russia, the Russian nation with the need to renounce the right of force, from despotism and violence, with the acquisition of faith in the power of law. He wrote: “We only know one thing for certain: if Russia ... does not renounce the right of force and believe in the force of law, if it does not sincerely and strongly desire spiritual freedom and truth, it can never have lasting success in any business. their own, neither external nor internal. In the 60s. XNUMXth century favorable conditions for the development of legal principles appear in the country, which was reflected in the liberation of the peasantry from serfdom and in the deployment of the largest legal reform in the history of our country, which laid the foundations of legal statehood in Russia. If the previous history is characterized by a certain delay in legal development (strong communal traditions, legal nihilism, etc.), then the end of the XNUMXth - beginning of the XNUMXth centuries. are marked by an unprecedented rise in the legal sphere as a result of the formation of new social forces and strata that are carriers of legal feelings and concepts, demands and ideas: the emerging bourgeoisie and the raznochintsy intelligentsia, first of all. In the process of legal reform in Russia, the class system of the court was eliminated, the equality of all before the court and the law was proclaimed, the court was separated from the administrative authorities, the election and irremovability of judges, the collegial nature of the consideration of cases and the adversarial process were established, the publicity of the court and the right to defense were proclaimed, the institute jurors. Thus, in the late XIX - early XX centuries. in Russia, a solid, albeit fragile foundation of modern legal statehood was laid, which would allow, if evolutionary development continued in our country, to reach the forefront of world legal culture in the XNUMXth century. As for the Russian liberal legal thought - the works of B.N. Chicherina, P.I. Novgorodtseva, B.A. Kistyakovsky and others - then it was already at that time at the level of advanced legal theories. The development of the Russian legal system in the XNUMXth - XNUMXth centuries, its perception of Byzantine culture, Orthodoxy, the spirit of late Roman law, as well as Northern European influences, allow us to conclude that it entered the Romano-Germanic family of legal systems as a special - Eurasian - variety. These features are as follows. 1. High, priority protection of common interests, the common cause, the spirit of conciliarity to the detriment of the personal claims of the individual, his rights and interests, which, from our point of view, constitute the semantic root, the basis of law and legal culture as such. 2. The weakness of the personal and, consequently, the legal principle in culture in general. 3. The wide distribution of non-legal regulators in society: moral, moral-religious, corporate, etc. 4. The negative attitude of the Orthodox religion to the fundamental foundations of a legal society, and thus to law, legal culture. The famous Russian philosopher and theologian S. Bulgakov wrote that "Orthodoxy does not stand guard over private property", does not protect the capitalist system of economy and, on the contrary, has a positive attitude towards socialism (as an ideal: Dostoevsky said that Orthodoxy is our Russian socialism), asceticism , obedience and humility as opposed to upholding the personality of their rights and freedoms. 5. A high degree of "presence" of statehood in public life, in state ideology, the nationalization of many aspects of public life, the subordination of law to the state, etc. Perhaps this is a reaction to the weakness of the state principle in the early stages of Russian history. Here you can also point to the other side of the coin: due to the nationalization of public life, the weak development of civil society structures, which largely ensure the effectiveness of legal regulation in countries with a developed rule of law state, a developed legal system. 2. Features of the Soviet legal system In 1917, a communist experiment was launched in our country - the construction of a fundamentally new society, which, according to its organizers, should be based on universal equality and freedom of the working man, universal happiness and the absence of exploitation of man by man. Attempts to force and speed up the introduction of these ideals into practice turned into a tragedy for Russia. And this is the greatest historical paradox of the almost 75-year development of our country: it turns out that the method of forcibly making the masses happy destroys this very good goal - the happiness of people. The socialist society is radically different from the capitalist, approaching, if we use the Marxian scheme of the typology of history, to the feudal. However, it would be more accurate to separate socialism and its inherent state-legal system into a separate (eponymous) type of society and the corresponding socialist family of legal systems. The Soviet legal system is a concrete historical example of this and is characterized by the following features. The first feature is that the Soviet legal system was permeated with the official ideology of Marxism-Leninism. This brought it closer to religious legal systems, which are also based on ideology (only religious) and depend on official interpreters of its truths and provisions. In the Soviet legal system, ideologization found its vivid expression in a social class, and not in a strictly legal, as in the Romano-Germanic or case legal systems, approach to subjects of law, including the accused. The ideologization of the legal system was also manifested in its adherence to all sorts of political campaigns, theatrical judicial performances - "trial" trials of "enemies of the people", in focusing not on the law and the strict legal criteria enshrined in it, but on the general party spirit - the line of the party, its decisions congresses, plenums, installations and instructions of party leaders. For the first time after 1917, the main source of law was revolutionary legal consciousness, which absorbed the ideology of Bolshevism. Subsequently, legislation was used mainly not to regulate social relations, but to propagate communist ideology. Finally, from an organizational point of view, the ideologization of the legal system revealed itself in the direct intervention of the Communist Party in legal practice - law-making, law enforcement, legal education, in the occupation of all more or less important positions in law enforcement by members of the RCP (b), the CPSU (b), The CPSU, in the administration of judicial functions by its leaders in certain periods of Soviet history (the infamous "twos" and "troikas"). The second feature, arising from the communist ideology itself, is the negative attitude of the ruling stratum, and then the population educated by it in this spirit, to law, in relation to the latter as a forced evil to be overcome and wither away in the future. Immediately after 1917, in Soviet legal literature, law was assessed as a counter-revolutionary subject, as a drug even more dangerous than religion, as an opium for the people (G.A. Goykhbarg, M.A. Reisner). Gradually, however, the Soviet authorities began to use the law (and the state too), its powerful regulatory capabilities in their own interests, although the named feature - legal nihilism - never existed, and apparently could not be overcome in the Soviet system. The third feature of the Soviet legal system is the absolute primacy of the interests of the state over the interests of the individual. State crimes were subject to the most severe punishments, encroachments on socialist (state) property were punished more severely (up to the death penalty) than on personal property. State property in civil law relations was subject to priority and exclusive protection. Thus, in accordance with the Civil Code of the RSFSR of 1964 (even as amended in 1987), the claims of state organizations for the return of state property from someone else's illegal possession of non-state organizations or citizens were not subject to any prescription, and its recovery could also be made from a bona fide purchaser. When precious metals and diamonds were confiscated from private individuals by order of law enforcement agencies (inquiry, preliminary investigation, prosecutor or court), they were paid only the cost of the seized valuables upon passing an acquittal (principle "Guilty anyway"). And vice versa: on the main state property (fixed assets), the recovery of creditors could not be levied in any case. As for other state property, it could be levied, but only with certain exceptions. In procedural law, the principle of priority protection of the interests of the state also operated. The scope of private law was sharply narrowed - the scope of free discretion of individuals was limited to domestic issues and family relations. Public law regulation, on the contrary, has become dominant, overwhelming, all-encompassing. The Soviet legal system as a whole was based on the idea of a person's obligations to the state. In relations between these two subjects, a permissive legal regime dominated for the first and a generally permissible for the second: a citizen could only do what the state allowed him to do; the latter, however, could prohibit everything that it considered necessary and useful for the cause of building socialism and communism (for example, establish limiting norms for area and size for plots and houses of individual development, limiting the height and area of \uXNUMXb\uXNUMXbhouses in gardening associations, etc. The attitude of the party-state leadership towards human rights was sharply negative. Civil and political rights of citizens were assessed as secondary in comparison with the socio-economic minimum (or rights) of the population and confidence in the future. International human rights standards were denied and violated, forced labor was widely practiced, and freedom of movement was extremely limited. The fourth feature is that the judicial system was completely dependent on the party and state leadership, and its activities were characterized by a punitive orientation against dissidents, inquisitorial investigative and judicial procedures, violation of the right of the accused to defense, objective imputation (criminal liability, for example, brought family members of the traitor to the Motherland, even if they did not know and could not know anything about his actions), cruelty (execution for theft of socialist property in any form and size, criminal liability for violation of labor discipline, the possibility of applying capital punishment for a number of crimes punishment - execution - for persons from the age of 12), etc. Finally, until the mid-50s. Extrajudicial reprisals were widely practiced, mass terror was carried out, which allows us to speak only about the pseudo-legal shell of all these actions and the bodies that carry them out, but not about law as such. In the second half of the 50s. the most odious of the listed characteristics of the Soviet legal system began to be overcome, mass terror was stopped. The fifth feature of the Soviet legal system is that the role of the law was reduced to almost nothing, since the general, fundamental provisions were established by party directives, and "technical", detailed issues of social and legal regulation were resolved in departmental acts of the governing bodies. An important role was played by secret instructions and directives from party organs of various levels and other departments that were not published anywhere. At the same time - and this is the paradox of the Soviet system - the ultimate goal of development was proclaimed, as already noted, the interests of the working person, and therefore, along with negative features, it had serious impulses for positive development, although sometimes purely formal. The state carried out work on the systematization and codification of legislation, the constitutions of the USSR were written and adopted, saturated with declarative provisions of the fundamentals of legislation, codes and other regulatory material. Attention was drawn to the need to take into account the demands and requests of the working people, to protect their rights and freedoms (naturally, in those areas where this did not lead to contradictions with the deep foundations of the Soviet socialist system). It should also be emphasized that the Soviet legal system went through several stages in its development, and these features are inherent in these stages to a different extent. So, the stage of formation is characterized, on the one hand, by the breakdown of the old legal system and legal institutions, maximum revolutionary "creativity" and arbitrariness, and on the other hand, by the desire to build a new legal system (the adoption of the Constitution of the RSFSR in 1918, Civil, Criminal, Land, Civil procedural, Criminal Procedure Codes, the Code of Labor Laws, the construction of a new judicial system). Early 30s to mid 50s. a totalitarian regime operated in the country with the almost complete destruction of true legal realities, despite the fictitious and demonstrative actions to adopt a mass of legislative acts, including the Constitution of the USSR of 1936. Mid 50s - late 80s. - the era of liberalization (with its ups and downs), which led to a change in the socio-political system, the collapse of the USSR and a change in all development guidelines, the fundamental values of the social system as a whole. This period was characterized by some technical and legal achievements in the legislative sphere (all major branches of law were codified, the Constitution of the USSR of 1977 was adopted, a number of laws of a declarative-democratic orientation, for example, the Law of the USSR on labor collectives and increasing their role in the management of enterprises, institutions, organizations in 1983 G.). From the end of the 80s. we are witnessing a radical redesign of our legal system. It is accompanied by very painful factors: first, a "war of laws", sharp contradictions between legislative and executive authorities, a "parade of sovereignties" of national-state and administrative-territorial units in the former Soviet Union, and then in the Russian Federation, then an explosion of crime, including anti-legal actions of the federal authorities in Chechnya, as well as a sharp increase in the corruption of the state apparatus and violations of the rights of entire sections and groups of the population, etc. This situation is very dangerous, but not hopeless for emerging legal relations, since the ongoing changes are aimed at building a state of law, ensuring the rights and human freedoms in the Russian Federation, which is impossible without introducing the situation into a clear legal framework. 3. Formation and development of the legal system in the Russian Federation The legal system is a complex structure, multi-level formation, consisting of a set of elements and subsystems, which has its own history, socio-economic, political, national and cultural foundations and prerequisites for development. The main component (subsystem) and at the same time the center, the core of the legal system is the subject of law or, more broadly, the subject of the legal system. First of all, it is a person in his legal capacity as a bearer of subjective legal rights and obligations and a participant in legal relations, that is, a subject who has the ability to have rights and obligations, who actually has and exercises these rights and obligations by his own actions. According to what persons and organizations are (recognized) as subjects of law, what amount of rights and freedoms they are endowed with and actually possess, use, one can judge this legal system. For example, in slave-owning societies, a slave was not a subject of law, while in medieval societies of Europe and in the ancient East, various categories of persons with unequal legal status were distinguished. Only in the course of bourgeois revolutions was the formal equality of all persons proclaimed, regardless of their social status, national origin, religion, and other differences. The volume of legal freedom of subjects of law serves as the basis on which eras and types of legal culture are distinguished in the history of law. In our literature, when analyzing the legal system, the subject of law has not been singled out until recently, which is quite understandable: the personality occupied a subordinate, secondary position in Russian and Soviet reality, and therefore the subject of law "floated to the surface" only when studying certain elements of the mechanism of legal regulation, in in particular in the analysis of legal relations. In the updated theory of state and law, the individual, the subject of law is put forward in a central place in all legal reality and acts as a starting point and foundation for scientific research. This also corresponds to the etymology of the word "subject", which in Latin means "lying below, at the base, at the base of all social life." The subject is the bearer of subject-practical activity and cognition, the source of activity and development of progress. In jurisprudence, the subject is considered as a bearer of rights and obligations and a participant in legal relations. Proponents of positivist legal thinking emphasize that the subject acquires these properties by virtue of legal norms, that is, only when they are enshrined in positive, written law (legislation). If the law (the state) does not deign to provide the subject with the appropriate legal properties, then he will not be a subject of law, just as his slave was not. In the sociological approach, the subject of law is the one who actually (or through their representatives) participates in legal activities, enters into legal relations, concludes transactions, contracts, etc., i.e., the one whom the participants in these relations themselves recognize as subject, regardless of how the state reacts to it. According to the natural law doctrine, the legal properties of a subject of law belong to a person from birth - no one gives them to him and no one can take them away. The Constitution of the Russian Federation recognizes that "a person, his rights and freedoms are the highest value", and "the fundamental rights and freedoms of a person are inalienable and belong to everyone from birth" (Articles 2, 17). This is a legal consolidation of the position that a person is the basis and center of the Russian legal system; all its other subjects - organizations, associations, economic societies and partnerships, state bodies are only derivative formations, a consequence of the vigorous activity of a person who is self-determined in any of the named forms. All activities of the state, its bodies and officials are aimed at asserting the rights and freedoms of man and citizen, which determine the meaning, content and application of laws, the activities of the legislative and executive authorities, local self-government and are provided with justice (Article 18 of the Constitution of the Russian Federation). Protection of the rights and freedoms of man and citizen is the main function of the state. At the same time, the bearer of sovereignty and the source of state power is a multinational people, and ultimately a person and a citizen united in a large social community - the Russian people, the population of the Russian Federation. Thus, from the basis of the legal system grows statehood as a whole. The foregoing is quite logical for a state governed by the rule of law, where law is the primary, fundamental factor in the relationship "law - statehood". The bearer of the law here is a person, society as a whole, which transfers to the state part of its rights and powers, thereby concluding (in theory, or conditionally) a social contract so that the state ensures the safety of a person, protects him from arbitrariness and chaos, guarantees the reality of rights and freedom. A person and a citizen as a voter forms the bodies of state power and local self-government, expresses his political will at referendums and free elections, participates in the administration of justice through the institution of jurors. The strategic goals of the development of the Russian political system and statehood today are: 1) the construction of such a state-legal mechanism that would really be aimed at the real provision of the provision proclaimed by the Constitution of the Russian Federation on human rights as the highest value; 2) development of a system of real impact of a person on the state through the institutions of civil society, which are still in their infancy. Both tasks are global and long-term. Their solution, however, will depend on the reality of the provision considered here about the subject as the center and basis of the Russian legal system. At present, this is only an ideal, the goal of our political and legal development. An equally important element of the legal system is legal consciousness, which does not exist in isolation from the subject and can be considered separately only in the course of theoretical analysis. Legal consciousness is traditionally defined as a set of ideas, feelings, ideas about the law in force and desired, about the actions of bodies and persons in the field of legal regulation. This is a very formalistic definition, weakly specifying the analyzed phenomenon. More meaningfully, legal consciousness can be defined as a set of emotional-sensory and mental, ideal images, with the help of which a person perceives and evaluates the most significant social relations (in particular, the production, exchange and appropriation of various benefits) in the categories of rights and obligations, the equivalence of an act and retribution. for it, equality, justice, freedom and protection from arbitrariness, responsibility for violation of legal norms and contracts, etc., and also operates in the field of legal regulation (establishment of legal norms and their implementation). Public consciousness becomes legal only after it forms the idea of legal normativity as the basis of life and order, opposing chaos and arbitrariness, the idea of retribution for offenses, formal equality and justice, protection of the individual, his property from the arbitrariness of other subjects, in including states, ideas about litigation of conflicts, etc. Russian culture did not have enough time for only its own legal forms and relations to naturally appear in it. And therefore, along with the latter, borrowed ones also acted - Byzantine, Lithuanian, Swedish, etc. Russia, as noted by F.M. Dostoevsky, was extremely open to foreign historical experience. However, if legal forms are deprived of a solid foundation in public consciousness, do not grow out of it, but are only imposed from outside by the state, then they are very easily rejected by this public consciousness and psychology, which prefer other, more understandable and well-known forms of regulation of social relations to law: moral , patriarchal family, traditional household, religious, etc. Legal consciousness arises in an individualizing culture, when a person begins to realize himself, his uniqueness, his own essence. Personal self-consciousness, personal dignity are absolutely necessary prerequisites for the formation of legal consciousness and legal culture as a whole. Their absence or weakness, as well as authoritarian statehood, and a number of other circumstances led to the formation of legal nihilism - a system of views and ideas that negatively assess the role of law in society. The extreme nihilism in relation to the law is widely known not only for the broad strata of the Russian population, but also for its individual famous representatives: L.N. Tolstoy, all the leaders of the communist experiment, a number of contemporary public and cultural figures. If we single out legal ideology and psychology in the public legal consciousness, then we can say that in Russia legal nihilism manifests itself at both levels. He penetrated the legal ideology through Marxism-Leninism - "the banner of our era." Even K. Marx and F. Engels wrote that the communists are in opposition to law and even to such a manifestation of it as human rights, and V. Lenin defined the dictatorship of the proletariat as state power, not bound and not limited by any laws, based directly on violence. In the legal psychology of the general population, due to the anti-people policy of state officials, the violation of the rights and freedoms of citizens, it would be naive to look for a positive attitude towards law. The exception was the singles, who put in the mid-60s. the beginning of a dissident (human rights in essence) movement in the USSR. And only since the mid-80s can we talk about the beginning of a new stage in the development of public legal consciousness in Russia, when the attention of society began to focus on the ideas of individual rights and freedoms, on the idea of a social contract and the need to form a political system in which the state depends on civil society. society. The next component of the legal system is legal activity, which consists of the law-making activities of state authorities, law enforcement activities of law enforcement (courts, internal affairs bodies, prosecutors, etc.) and other state bodies, as well as activities for the implementation of the law by all these bodies and other organizations and subjects of the Russian legal system. Through law-making activity, which reflects the main socio-economic, cultural and other needs of society, legal regulations are included in the legal system - norms, programs, models of behavior for the activities of people and bodies (organizations) of Russian society. A major, one might say, global task that needs to be solved in the course of law-making activities in the coming years is the formation of a practically new regulatory and legal system (legislative system) that would reflect and direct the changes in the fundamental principles of life that are taking place in society: - the transition from a state-owned economy to an economy where private property, privatized enterprises, and private entrepreneurial activity play a significant role; - from universal property unification in poverty (with a few exceptions) to the formation of a middle class, the creation of a decent human level of material well-being; - from a policy imposed on the people by a narrow group of the party leadership to a policy based on the interests of the electorate and ultimately determined by the voters; - from imperial national policy to a policy based on equality and self-determination of peoples in the Russian Federation. To fulfill these tasks, law-making activity must meet a number of requirements. First of all, it must be legally regulated in such a way that a working mechanism is formed to identify, take into account and harmonize the interests of all groups and strata of Russian society, to create legally perfect legal acts. At the level of the Federal Assembly of the Russian Federation, it is necessary to develop fundamental regulatory documents in this area - regulations of the chambers, especially the State Duma; at the level of subjects of the Federation - the creation of a model regulation of their legislative (representative) bodies, which would reflect the general principles and features of their own legislative activity and participation in federal lawmaking. The federal legislator should pay special attention to systemic, codification law-making, which will result in large blocks of legal norms that comprehensively regulate areas and types of social relations. The second most important type of legal activity after lawmaking is law enforcement - imperious individual legal regulation of social relations. The main purpose of law enforcement is the implementation of legal norms, taking into account the individual characteristics of the situation. In addition, through law enforcement, state coercion is carried out in case of violation of legal norms. And here justice comes to the fore, the bodies of which also act on the basis of the law. However, their activities are not limited to the application of law in the exact sense of the word. Justice is not a mechanical implementation of written legal prescriptions (as it was in the Soviet era), but a living law itself, a law in life. "The foregoing means that the courts, when deciding specific cases, can and must apply the principles and norms of international law, which in accordance with the Constitution of the Russian Federation, they are an integral part of the legal system of Russia. They should also be guided by fundamental legal values - human rights, which can only be enshrined in the most general form in the principles of law or legal consciousness. "The rights and freedoms of man and citizen are directly active. They determine the meaning, content and application of laws, the activities of the legislative and executive authorities, local self-government and are provided with justice "(Article 18 of the Constitution of the Russian Federation). If, during the consideration of the case, the court establishes the fact that an act of a state or other body does not comply with the law, then the decision is made in accordance with the law (Article 120 of the Constitution of the Russian Federation). The Constitution of the Russian Federation also established a wide range of new and clarified the previously known rights of citizens in the field of legal proceedings and the legal system as a whole: the right of every person to judicial protection by all means not prohibited by law, the right to appeal to the court the actions and decisions not only of officials, but also of bodies state authorities, local self-government, public associations, the right to apply to interstate bodies for the protection of human rights and freedoms, if all available domestic legal remedies have been exhausted, the right to receive qualified legal assistance, the right to use the assistance of a lawyer (defender) from the moment of detention, imprisonment in custody or indictment, the right to be presumed innocent until the court verdict comes into force (the presumption of innocence), the right to be exempted from testifying against oneself and one’s close relatives, the right to compensation for damage caused by the state, etc. In our legal systemthe institution of jurors has been revived. The listed novels show that the role and importance of justice in our country is increasing many times and in the future the status of decisions of the judiciary should come closer (in the field of human rights) to the status of court decisions in the countries of case law. The Constitution of the Russian Federation provides legal grounds for such a conclusion. The third type of legal activity is the legal behavior of citizens, organizations and bodies, which ultimately develops into a comprehensive legal order in the country. In any state-organized society, the legislator can establish certain legal norms and principles, this or that legal status of individuals and organizations, and the public legal consciousness can strive and desire to establish and (or) observe any rights and freedoms, any legal regimes. , but if this is not embodied in a real legal order, then the level of legal culture in a given society will begin to reflect not ideal motives and aspirations, but what actually exists. The last, but not least, is such a component of the legal system as legal acts - written law, which constitutes the legal subsystem of the legal system. From the point of view of lawyers of a positivist orientation, normative legal acts are the center of the legal system, and from the standpoint of supporters of the natural law doctrine defended in this work, they are nothing more than an important component of it. But it would be methodologically incorrect to consider the approach of the positivists as completely erroneous: this is a style of thinking, a worldview that has certain concrete historical justifications and limits. The term "legislation" in theory and practice is used in a broad and narrow sense. In a narrow sense, it is a system of existing laws. Legislation in the broad sense of the word means all regulations in force in the country. Important novelties are the following serious "acquisitions" of our legal system during the reforms. Novella firstThe Constitution of the Russian Federation now has not only the highest legal force (this was the case before, although formally theoretically), but also direct action, which means the right and duty of the court, other bodies of state power and administration, all officials, in the absence of the necessary law, to directly apply the Constitution , to which in this case a direct reference is made. For example, until a federal law is adopted in the Russian Federation on the replacement of military service with alternative civilian service, the courts, when applying to them from citizens whose religion is contrary to military service, will have to refer to paragraph 3 of Art. 59 of the Constitution of the Russian Federation. And this practice already exists. Novella IIAccording to paragraph 15 of Art. 3 of the Constitution of the Russian Federation "unpublished laws are not applied." This norm is aimed at eradicating the practice of "secret diplomacy" of the Soviet state against its people, which was widespread and expressed in the fact that unpublished normative acts regulated, or rather, limited the rights and freedoms of Soviet citizens, imposed new duties on them. But even more important is the provision of paragraph XNUMX that not only laws, but also "any normative acts affecting the rights, freedoms and duties of a person and citizen, cannot be applied if they are not officially published for general information." Novella thirdBy virtue of paragraph 4 of Art. 15 of the Constitution "generally recognized principles and norms of international law and international treaties of the Russian Federation are an integral part of its system. If an international treaty of the Russian Federation establishes rules other than those provided for by law, then the rules of the international treaty shall apply." The above rule, firstly, makes our legal system open to advanced, progressive provisions, principles and norms of international law, since they are now part of it, and, secondly, establishes the priority of the norms contained in the international treaties of the Russian Federation , before domestic laws. The above also applies to the international treaties of the USSR, since Russia is its legal successor. The most important are the Covenants on civil and political, as well as on economic, social and cultural rights of 1966 and the conventions of the International Labor Organization (ILO). Other very important changes are currently taking place in the Russian legal system. For example, the role of law in the system of sources of law is sharply increasing. This situation is due to the general spirit and meaning of the Constitution of the Russian Federation, which proclaimed Russia a democratic federal legal state, its direct indication that laws have supremacy throughout the territory of the Russian Federation (clause 2, article 4), and the courts, having established, when considering the case, the inconsistency of the act of the state or other body to the law, make a decision in accordance with the law (Article 120). Today in Russia there is a process of formation of private law. The state stands up for the protection of those agreements that private individuals have concluded among themselves. This process can be compared with the denationalization of socialist property, privatization. Just as a subject endowed with private property appears in the economic sphere, so a subject appears in the legal sphere endowed with significant autonomy, independence, the ability to independently, freely and in its own interest decide its private affairs, without causing damage to the rights and legitimate interests of others, i.e., a subject whose private right is guaranteed by the state. This leads to an increase in the value of the dispositive method of legal regulation. A fundamentally new phenomenon in the history of the Russian legal system is the empowerment of all subjects of the Russian Federation with the right to issue laws, which will lead to the formation, along with the federal legal system, of independent regional legal systems, and within the framework of federal law, in addition, a new subsystem should develop - conflict of laws. law (clause "p" of article 71 of the Constitution of the Russian Federation.) This greatly complicates legal regulation, but increases the "proximity" of the subject of regulation to objects, as well as the role of justice as a center for resolving all kinds of disputes and conflicts. The Russian legal system is now in a situation of profound structural reforms. At the same time, the main direction of its development is the construction of a rule of law state on the basis of a developed civil society, where human rights, actually secured, guaranteed and protected, would be the central link, the highest value. Section five. Man, law, world order Chapter 31. The rights and freedoms of man and citizen 1. Man and law For the communication and interaction of people, the resolution and prevention of conflicts between them, the problems of cognition, improvement and implementation of law have always been important. The historical path of development of legal matter and spirit among different peoples was long and difficult. It took thousands of years for people for the most part to begin gradually, first intuitively, and then more and more consciously, to understand the meaning and role of law in their lives. But at present, these problems continue to remain relevant, manifesting themselves both in the intrapersonal plan and in interpersonal relationships, in the relationship between various associations, countries and communities. In terms of the topic under study, its study must begin with the person himself, whose essential features, ideal and behavioral images are explicitly or implicitly connected with law. Only man, among all other living beings, has a mind, a complex of emotional qualities and is able to feel and realize the law, comply with legal regulations, and adapt to legal reality. As a social being, in the process of communicating with his own kind, he can improve legal norms, construct more and more appropriate models of social behavior, and look for compensatory mechanisms in case of violation or inaction of these norms. In a word, a person lives in a legal system and, due to a number of socio-economic, political and other factors of progressive development, cannot exist without law. In this regard, we can agree with the statement of J. Carbonnier that a person is a homo juridicus. At the same time, what has been said describes only one side of the relationship between law and a person, namely: the possibility and necessity of determining a person by a legal system. In this case, a person acts as the only, but only the user of the right, as an immanent, but only the subject of law enforcement, law-realizing relations. The other side of the analyzed connection speaks of a person as a creator of law. Here, first of all, one should understand that law is an inalienable quality of a person and a property of his being. Initially, a person, having appeared on Earth as a species and each time appearing personally, protects his life, freedom (first instinctively, and then consciously), that is, he realizes his right to life and freedom. Hence the natural, inalienable human rights: to life, freedom, property, equality, happiness, etc. Therefore, the right has a natural value, or intrinsic value. For a long time, the named qualities of a person (life, freedom, property) and their protection were inseparable and had a specific, personified character, which determined the casual way of regulating relations between people. In the process of people's communication, while realizing natural needs, interests and rights, habits, stereotypes are gradually developed, which, on the one hand, provide freedom of action, and on the other hand, limit it to reasonable limits from the standpoint of the social majority or social strength. A generally accepted measure is established, that is, a norm of behavior. A person is aware of himself as a person in the social sense, and this is the awareness of his rights and obligations in relation to another person. A person already with the help of law evaluates his actions, the actions of other people as right or wrong, fair or unfair. As society develops, the natural-legal qualities of a person acquire the character of a scale of freedoms, a measure of justice and equality for all people. Legal normativity, general regulation of relations arise, and law becomes a social value as a universal form and way of normal life of society. With the emergence of social groups, strata, classes and the state, a person has the opportunity to actively intervene in the process of lawmaking, creating new norms, adapting the established rules and customs to the interests of society or a particular stratum, class. Law reveals and uses new value qualities of a powerful tool influencing social relations; it acts as the most reliable and effective intermediary between a person and state structures. And the state can be considered democratic and viable to the extent that it has managed to take into account natural law principles in its law-making and law enforcement activities. Thus, everything in common that exists in the natural and social qualities of a person, regardless of racial, national differences, gender, religious and ideological adherence, also determines the common features of any legal system of the past and present. In this regard, it seems that the famous saying of Protagoras "The measure of all things is man" is directly related to law. Law in the unity of natural, social and political acts as the most important property of human existence. Man is a rational, just, and therefore legal being. 2. The concept of human and civil rights and freedoms The emergence of the concept of "human rights", that is, the recognition of this problem as a scientific one, is inextricably linked with the emergence and dissemination of the ideas of natural law. Even in the V-IV centuries. BC e. Ancient Greek thinkers (Lykofron, Antiphon, etc.) argued that all people are equal from birth and have the same rights due to nature. Aristotle considered one of the fundamental rights to private property, which reflects the nature of the person himself and is based on his love for himself. During the period of feudalism, many natural-law ideas were clothed in a religious shell. Later they were reflected and further developed in the works of Locke, Montesquieu, Rousseau, Kant, Bentham and other thinkers. With the development of social relations, human rights gradually turned from an ideal category into a reality, were fixed in state-legal and international legal documents, acted as a criterion for the democratic nature of a particular system of legal and state structure. One of the first legal documents to reflect human rights in a systematic way was the Virginia Declaration (1776), which formed the basis of the Bill of Rights of the US Constitution (1791). The French Declaration of the Rights of Man and of the Citizen (1789) is of enduring importance. The fundamental human rights enshrined in this political and legal document (to property, personal freedom and security, to resist violence) have not lost their relevance to this day. In expanded form, human rights are reflected in the Universal Declaration of Human Rights, adopted by the UN General Assembly (1948). An important role in terms of reality, guarantees of the exercise of human rights and freedoms is played by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (1966). Human rights are now widely reflected in the constitutions and laws of most States that are members of the United Nations. The desire of our country to resolutely and fully take into account human rights in legislation and observe in practice human rights is expressed in the adoption of the Declaration of the Rights of Man and Citizen (1991) and the Constitution of the Russian Federation (1993). Human rights are the inalienable properties of each person and the essential features of his being. The state does not "grant" rights, it only fixes them in law and ensures their implementation. In this case, it can be considered legal. If the state ignores natural human rights or, moreover, infringes, destroys them, impedes their implementation or creates conditions for the realization of rights only for a certain group of persons, class, class, then it is characterized as anti-democratic (authoritarian, totalitarian, etc.) . Human rights are the natural possibilities of an individual, ensuring his life, human dignity and freedom of activity in all spheres of public life. Along with the category of "rights" the term "freedoms" is used: freedom of conscience, freedom of religion, freedom of thought and freedom of speech, etc. These categories can be considered equal in meaning and content. In the literature and legislation, the categories "citizen's rights", "personal rights" are also used. Human rights are of a natural nature and inalienable from the individual, they are non-territorial and non-national, they exist regardless of being enshrined in the legislative acts of the state, they are the object of international legal regulation and protection. They characterize a person as a representative of the human race and in this sense act as the most general and at the same time only basic (radical) powers necessary for his normal existence. In the case of fixing human rights in the legislative acts of a particular state, they also become the rights of a citizen of this state. The rights of a citizen are a combination of natural powers, reflected in the regulatory legal acts of the state, and acquired powers developed in the course of the development of society and the state. The rights of a citizen are necessarily enshrined in constitutions and other legislative acts, and it is also mandatory for the state to declare and ensure their protection. They qualify a person as a member of a state-organized community. Personal rights are understood as the powers belonging to a particular individual in a particular situation. Their volume may depend on the socio-economic situation, the socio-political status of a person, the conditions of his work and residence. By "person" is meant a person, a citizen, a foreign citizen, a stateless person, a refugee. Personal rights characterize the individual characteristics of a person, the degree of his social maturity, the ability to realize the right and be responsible for his actions. Currently, in international legal acts, in the literature and legislation of developed countries, the categories "human rights", "citizen's rights", "personal rights" are usually used in the same meaning. The use of certain categories is most often due to logical and stylistic rules or the need to highlight one or another aspect of the problem of human rights. 3. Basic human rights and freedoms and their classification The fundamental rights and freedoms of man and citizen are enshrined in international legal acts and constitutions of specific states. One of the generally accepted criteria for their classification is the spheres of the life of society in which certain interests and needs of the individual are realized. In accordance with this criterion, civil (personal), economic, political, social, cultural, environmental and information rights are distinguished. Civil (personal) rights are a set of powers that reflect the natural law principles, ensuring the individuality and originality of the individual in relations with the state and society. These include the right to life, personal dignity, the right to liberty and security of person, the right to privacy, personal and family secrets, the right to protect one's honor and good name, the right to privacy of correspondence, telephone conversations, postal, telegraphic and other messages, the right to free movement, choice of place of stay and residence, etc. Economic rights are powers that reflect the economic aspects of natural human rights and simultaneously ensure the economic autonomy of individuals and their relationship with each other and society. This is the right of private property, the right to own, use and dispose of one’s property both individually and jointly with other persons, the right to participate in cooperative, joint-stock, municipal, state property, the right to entrepreneurial activity, the right to freely dispose of one’s ability to work, choose the type of activity and profession, etc. Political rights determine the possibility of citizens' participation in the management of the state and society. This includes the right of a person to citizenship, the right to determine and indicate one's nationality, the right to association, including the right to form trade unions to protect one's interests, the right to hold meetings, rallies and demonstrations, the right to participate in the management of state affairs, both directly and through their representatives, the right to elect and be elected, the right to apply to state bodies, etc. Social rights reflect the level of material development of a particular state and society and their ability to provide a decent standard of living and social security for an individual. Among these, the most important are the right to work, social security, the right to housing, the right to rest, health care and medical care. Cultural rights affect spiritual and cultural relations, determine the independence and originality of the formation of the spiritual world of the individual. This group includes the right to use one's native language, to freely choose the language of communication, freedom of conscience and religion, the right to education, freedom of literary, artistic, scientific, technical and other types of creativity, the right to access to cultural values. Environmental rights are designed to ensure normal living conditions for a person on Earth and in a specific area. This is the right to a favorable environment, reliable information about its condition, to compensation for damage caused to human health or property by environmental offenses. Information rights characterize a new era in the development of the individual and society. The implementation of the general legal status of an individual depends on their consolidation and observance. This includes freedom of thought and speech, the right to seek, receive, transmit, produce and distribute information in any legal way, and freedom of the mass media. The historical experience of people living together makes it possible to identify patterns in the development of human rights, general and specific principles for their formation and implementation. In this case, it is possible to pay attention to the following provisions. First, human rights are universal. They apply to all people, are applicable in all countries, regardless of the latter's membership in various international communities. Of course, the volume and effectiveness of the realization of rights and freedoms depends on a number of factors and, above all, on the level of development of society as a whole. Secondly, human rights are in constant development, reflect the dynamics of social relations and the growth of legal awareness of citizens. An example is the emergence of the right to information and its consolidation in Art. 29 of the Constitution of the Russian Federation. The right to vote of American citizens underwent a visual transformation in the XV (1870), XIX (1920), XXIV (1964), XXVI (1971) amendments to the US Constitution. Thirdly, human rights are not a legal dogma, not a social fetish. They cannot be absolutized and separated from real life, from a reasonable person. A number of international legal and domestic documents allow restrictions on certain rights and freedoms due to public safety, ecological balance, etc. The legislation of the Federal Republic of Germany, France, and Italy establishes the permissible limits for private property, emphasizing the need to use it in the public interest. In Switzerland, the free sale and purchase of land is limited by considerations of expediency. For example, agricultural land cannot be used for another purpose when the owner is replaced. Fourth, human rights necessarily correspond to duties. Compliance of human rights and freedoms with legal obligations is one of the important conditions for their successful implementation. 4. Obligations of man and citizen The existence and realization of rights and freedoms are inextricably linked with certain duties that act as their reverse side. "At the basis of law," wrote Hegel, "is the freedom of the individual, and the law consists in my treating the other as a free being." Hence the restriction of one's own freedom, hence the awareness of the need for an adequate behavioral response. Duty is a measure of socially necessary behavior of a person, designed, together with rights and freedoms, to ensure balance, stability and dynamism of legal regulation. Obligations can be subdivided into natural-legal obligations, which are carried by a person and society, and legal, which are carried by a citizen, the state, its bodies and which are reflected in positive law. Natural duties correspond to the basic natural rights of a person (the right to life is the duty “do not kill”, the right to property is the duty “do not steal”) and they, like rights, are gradually concretized and fixed in the form of legal duties in legislation as society develops. In a number of countries, the legislator, emphasizing the difference between natural and legal duties, establishes the duties of a person (everyone) and the duties of a citizen. So, in Art. 58 of the Constitution of the Russian Federation establishes the duty of everyone to preserve nature and the environment, to take care of natural resources, in Art. 59 reads: "Protection of the Fatherland is the duty and obligation of a citizen of the Russian Federation." Responsibilities are also reflected in international acts. The Universal Declaration of Human Rights, adopted by the United Nations, proclaims that every person has duties to a society in which alone the free and full development of the individual is possible, and that the exercise of rights and freedoms by a citizen requires due recognition and respect for the rights and freedoms of others, satisfaction of just moral requirements. , general order and welfare in a democratic society. The International Covenant on Civil and Political Rights establishes the obligation of each state party to the Covenant "to respect and ensure to all persons within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." The basic duties of citizens are usually enshrined in constitutions and detailed in current legislation. These are obligations to respect the rights and freedoms of others, pay legally established taxes and fees, protect nature, the environment, historical and cultural monuments, respect and abide by laws, perform military service, etc. The constitutions of some states also establish obligations to work (Japan ), raise children (Russia, Italy), take care of your health (Uruguay). 5. Guarantees of human and civil rights Guarantees are a system of conditions, means and methods that provide everyone with equal legal opportunities to identify, acquire and exercise their rights and freedoms. Their classification can be carried out on various grounds. According to the scope of action, international legal (planetary) guarantees, guarantees within the framework of regional international communities, domestic and autonomous guarantees are distinguished. International legal guarantees are enshrined in the Universal Declaration of Human Rights, international covenants and other documents. They are implemented by the UN, its bodies, as well as organizations operating under its auspices (UNESCO, ILO), through various international programs and projects. The activities of the Security Council, committees of the General Assembly, the International Court of Justice and specialized institutions - the Committee on Human Rights, the Committee on the Rights of the Child, the Committee against Torture are of great importance in this regard. Obligations for the realization of fundamental rights and freedoms are imposed on themselves by the states that are members of the UN. The guarantees of the regional international communities (the European Union, the Council of Europe, the Council of the Baltic Sea States, the Organization of African Unity, the Organization of American States, the Association of Southeast Asian Nations, the Commonwealth of Independent States) are also carried out through various institutions on the basis of relevant legal acts. Thus, the member states of the Council of Europe are guided in their activities by the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 and its additional protocols. Their implementation is monitored by the European Commission of Human Rights and the European Court of Human Rights. The member countries of the Commonwealth of Independent States have adopted a number of documents that facilitate the exercise on their territories of the personal and property rights of citizens of all CIS member states. In particular, these are the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of January 22, 1993, the Declaration on International Obligations in the Field of Human Rights and Fundamental Freedoms of September 24, 1993, the Agreement on the Mutual Recognition of Rights to Compensation harm caused to workers by injury, occupational disease or other damage to health associated with the performance of their labor duties of December 9, 1994, the CIS Convention on Human Rights and Fundamental Freedoms of May 26, 1995 Domestic guarantees are enshrined in the constitutions and other legislative acts of states, provided with appropriate material and organizational means. The Constitution of the Russian Federation in Art. 17 recognizes and guarantees the rights and freedoms of man and citizen in accordance with generally accepted principles and norms of international law. In Art. 18 of the Constitution, rights and freedoms are declared directly applicable. They determine the meaning, content and application of laws, the activities of the legislative and executive authorities, local governments and are provided with justice. Monitoring compliance with constitutional provisions and protecting the rights of citizens fall within the competence of the Constitutional Court of the Russian Federation, the Commission on Human Rights, the Commissioner for Human Rights, as well as court and prosecutor's offices. Russia's accession to the Council of Europe gives a new impetus to the cause of strengthening the protection of the rights and freedoms of citizens, increasing the effectiveness of this activity in our country. Autonomous means guarantees that are reflected in the legislation of the constituent parts of the federal states (states, republics, regions, lands, provinces). Thus, along with the federal bodies, the subjects of the Russian Federation also undertake to ensure rights and freedoms. All constitutions and charters of the constituent entities of the Russian Federation contain provisions on the recognition and guarantee of the rights and freedoms of man and citizen in accordance with the generally recognized principles and norms of international law. According to the content and types of activity, guarantees are divided into economic and legal (securing the freedom of economic activity, recognition and protection of private, state, municipal and other forms of ownership in the same way, social partnership), political and legal (the mechanism of democracy, separation and balance of powers, multi-party system, pluralism of opinions), socio-legal (ban on inciting social, racial, national and religious hatred, general accessibility and free of charge basic general and secondary vocational education) and legal (presence of a developed system of legislation, independent justice, the possibility of obtaining qualified legal assistance, the right of everyone to defend their rights and freedoms by all means not prohibited by law). Legal guarantees can be material (regulatory regulations that determine the conditions for the exercise of rights and freedoms), ideal (presumption of innocence, legal fictions), procedural (institutions of supervision and cassation, the procedure for suspending and terminating the powers of judges), technical and legal (constructions that reflect provisional the binding nature of legal norms, the construction of civil law claims, contracts). Legal liability is also considered as a legal guarantee. It consists in the obligation of a person to undergo measures of state influence for a committed offense, for failure to perform or improper performance of legal duties. 6. Legal status of the individual A complete and real idea of the rights and freedoms cannot be obtained without considering them as part of the legal status of the individual. First, this category has a collective, universal character. It seems to incorporate legal statuses: - a citizen; - a foreign citizen; - stateless persons; - a refugee; - forced migrant. Secondly, this category reflects the individual characteristics of a person and his real position in the system of diverse social relations. Thirdly, rights and freedoms, which form the basis of the legal status of an individual, cannot be realized without its other components: without legal obligations corresponding to rights, without legal responsibility in necessary cases, without legal guarantees, without legal capacity and capacity as defining features of a strong-willed and conscious human behavior. Fourthly, the category of legal status allows you to see the rights, freedoms, duties of an individual in a holistic, systematic way, makes it possible to compare statuses, opens up ways for their further improvement. The legal status of a person is the legal status of a person, reflecting his actual state in relations with society and the state. The classification of the legal statuses of a person is primarily carried out according to the scope and structure of legal systems. There are general (international), constitutional (basic), sectoral, generic (special) and individual legal statuses of a person. The general (international) legal status of an individual includes, in addition to domestic rights, freedoms, obligations and guarantees developed by the international community and enshrined in international legal documents. It is protected by both domestic legislation and international law. For example, in Art. 15 of the Constitution of the Russian Federation provides for the possibility of applying the rules established by the norms of international law and international treaties. And within the framework of the CIS, there is a Commission on Human Rights, which, according to its Regulations of September 24, 1993, is competent to consider both written requests from states on issues of human rights violations, and individual and collective appeals of any persons who have exhausted all available domestic legal remedies. The constitutional (basic) status of an individual combines the main rights, freedoms, duties and their guarantees, enshrined in the country's fundamental law. Its characteristic feature is stability, which is due to the peculiarities of human life itself and involves the establishment of a normal law and order in society, predictable and reasonable changes that ensure the preservation of the country's gene pool, the pace of production of material and spiritual values, and the free development of the individual. Like any basis on which new qualities are formed, the constitutional status must be stable, its existence must last until the basic social relations change radically and for the most part. The stability of the constitutional status of an individual depends on how fully it corresponds to actual social relations, and on what procedure for the adoption, cancellation of relevant norms and amendments to them is enshrined in law. The Constitution of the Russian Federation in Art. 135 contains some guarantees of the stability of the status, defining a rather complicated procedure for revising the articles of Ch. 2, containing norms on the rights and freedoms of man and citizen. The sectoral status of a person consists of powers and other components mediated by a separate or complex branch of the legal system - civil, labor, administrative law, etc. The generic (special) status of a person reflects the specifics of the legal status of certain categories of people who may have some additional subjective rights and obligations: military personnel, pensioners, disabled people, workers of the Far North, etc. Individual status characterizes the peculiarities of the position of a particular person depending on his age, gender, profession, participation in the management of public affairs, etc. Chapter 32 1. Classification of legal systems Historically, each country has its own legal customs, traditions, legislation, jurisdictional bodies; features of the legal mentality and legal culture have formed. The legal originality of countries allows us to talk about their identity, that each of them forms its own legal system - the totality of all legal phenomena (norms of institutions, relations, legal consciousness) existing within its framework (legal system in the narrow sense). However, along with the features, differences, in these legal systems, one can also notice common features, elements of similarity that allow them to be grouped into "legal families" (legal systems in the broad sense), uniting several legally related countries. There are several criteria for combining, classifying the legal systems of various states. 1. Common genesis (emergence and subsequent development). In other words, the systems are historically interconnected, have common state-legal roots (grow from one ancient state, are based on the same legal principles, principles, norms). 2. The commonality of sources, forms of consolidation and expression of the rules of law. We are talking about the external form of law, about where and how its norms are fixed (in laws, treaties, court decisions, customs), about their role, meaning, correlation. 3. Structural unity, similarity. The legal systems of countries belonging to the same legal family should have similarities in the structural construction of regulatory and legal material. As a rule, this finds expression at the micro level - at the level of the structure of the rule of law, its elements, as well as at the macro level - at the level of the structure of large blocks of regulatory material (branches, sub-branches, other divisions). 4. Common principles of regulation of public relations. In some countries, these are the ideas of freedom of subjects, their formal equality, objectivity of justice, etc., in others - theological, religious principles (for example, Muslim countries), thirdly - socialist, national socialist ideas, etc. 5. The unity of terminology, legal categories and concepts, as well as the technique of presenting and systematizing the rules of law. Legally related countries usually use terms that are identical or similar in meaning, which is explained by the unity of their origin. For the same reason, legislators of countries belonging to the same legal system, when developing legal texts, use the same legal constructions, methods of constructing regulatory material, its ordering, and systematization. In view of the foregoing, the following legal systems are distinguished in science: 1) Anglo-Saxon (England, USA, Canada, Australia, New Zealand, etc.); 2) Romano-Germanic (countries of continental Europe, Latin America, some African countries, as well as Turkey); 3) religious and legal (countries that profess Islam, Hinduism, Judaism as the state religion); 4) socialist (China, Vietnam, North Korea, Cuba); 5) the system of customary law (Equatorial Africa and Madagascar). 2. Anglo-Saxon legal system Origin of the Anglo-Saxon legal systemThe formation and development of Anglo-Saxon law is associated with many historical, geographical, national, political, economic and other factors. From a historical point of view, the period of the Norman Conquest is epochal for England and Anglo-Saxon law. Until that time, scattered local acts, orders of kings, regulating certain issues of public life, were in force in the country. The Romans, who ruled Britain for almost five centuries, were unable to exert a decisive influence on its further legal development. Roman law did not take root and was soon superseded by local norms. Common law for the whole of England arises after its capture by William I the Conqueror (1066). During this period, a centralized judicial system is formed, royal traveling judges appear (during the reign of Henry II), who decide cases with field visits on behalf of the Crown. Initially, the group of cases referred to the jurisdiction of these judges was limited, but gradually it expanded. The decisions developed by the judges were taken as a basis by other judicial instances when considering similar cases. This is how a single system of precedents began to take shape, common to all of England, called "common law" (common law) customs and traditions. The impact of customary norms significantly affected the content of court decisions. In this sense, the common law of England is customary, customary law. V. XII-XIV centuries. the common law system flourished, but gradually, with an increase in the number of precedents, it began to show a tendency towards conservatism and formalization, which by the XNUMXth century. paved the way for a qualitatively new stage in its development, associated with the emergence of "justice" and its opposition to common law. The nascent market relations did not find proper expression in the old legal forms, and a special procedure for appealing to the monarch to consider the case "by conscience", "by justice", and not by precedents gradually began to take shape. Such an appeal was usually carried out through the Lord Chancellor, who decided whether the complaint should be referred to the King. Soon, the very function of trying the case on the merits passes to the Lord Chancellor, and he becomes an independent judge. In England, thus, there were two independent systems of law: common case and "justice". The latter has gradually undergone significant changes. It began to be realized on the basis of previously considered incidents, and consequently, the Lord Chancellor lost the opportunity, at his own discretion, in his own sense of justice, to resolve the dispute in the presence of ready-made decisions on similar cases. The law of justice also became the law of precedent, the differences between the two systems turned out to be unprincipled, although until 1875 the chancellor's court was preserved, guided only by the law of justice. After 1875, the rules of common law and the law of equity began to be applied by the same judges, and the precedents of the law of equity constituted an organic part of one English case law. The modern period in the development of Anglo-Saxon law is a period of fundamental legal reform, the essence of which is the intensification of legislative activity, the unification of action proceedings, the merger of the courts of common law and the law of justice. During this period, the role of legislative regulation has significantly increased, the importance of the law among other sources of law has increased. The legislative "offensive" led to a modification of the structure and content of law, as well as the very legal thinking, legal doctrine and education. If earlier English lawyers were trained mainly in practice, now university education has received priority. When drafting bills, the experience of foreign countries, including those belonging to the Romano-Germanic family of customs, is taken into account, and other legal values are borrowed and unified. Thus, there is a gradual convergence of these legal systems. The case law of England has significantly influenced the legal development of many countries of the world. The United States, Canada, Australia, India, New Zealand and other countries fell into its sphere of influence. However, in the UK itself, the dominance of the common law is not universal. It only applies to England and Wales. In Scotland and Northern Ireland, as well as a number of island territories, it has not gained distribution. Within the framework of the countries of the Anglo-Saxon system, constructive legal cooperation has been going on for a long time, many precedents developed by English courts have become the property of other states or have been taken into account by their judges, and vice versa. However, recently several countries (including Canada and Australia) have declared their legal autonomy. In the United States of America, however, legal "sovereignty" began to take shape much earlier - as early as the XNUMXth century, from the time of the struggle for independence. But the process of legal sovereignty of the states included in the system of Anglo-Saxon law does not in itself mean their "withdrawal" from the established legal family, since the influence of English law is not limited to precedents, it determines the general type of legal thinking, the nature and features of legal activity used categories, concepts, constructions and other legal elements. Features of the norms of Anglo-Saxon lawIn Anglo-Saxon law, there are two types of norms: legislative and case law. Legislative are (as in the Romano-Germanic system) rules of conduct of a general nature. Precedent - a certain part of the judgment in a particular case. English lawyers refer to the case law ("ratio decidendi"), firstly, the legal opinion on the case and, secondly, the argumentation, the reasoning of the decision. These two elements make up the essence of the solution. The rest of it is "said in passing" ("obiter dictum"). It is persuasive only and is not binding on other courts. In practice, it is very difficult to distinguish obiter dictum from ratio decidendi. To do this, many methods have been developed, techniques for distinguishing them, but all of them are not effective enough. We emphasize that the ratio decidendi can only be called a rule of law with a high degree of conventionality. The British generally prefer not to formulate general rules in their judgments; they have a presumption of non-application of broad legal principles. Unlike continental lawyers, their type of legal consciousness is inductive rather than deductive. The basis of judgments, conclusions on the case is the analysis of a particular case, incident. The judge “tryes on” a specific case not to an already prepared norm, but to an earlier incident, a case of legal significance, and establishes their similarity, similarity, after which he makes a conclusion about the relevance of the precedent to the case he is considering or their discrepancy. Such a mechanism can be called normative only with a big stretch. The description of precedent settlement through the model "norm - its implementation" is a tribute to the Romano-Germanic legal tradition, which sees normativity as an obligatory element of law. Sources of Anglo-Saxon lawThe most important source of Anglo-Saxon law (in terms of the process of its formation) is, as already noted, judicial precedent. It was he who for a long time was the main form of expression and consolidation of English law, which therefore was and remains precedent. Precedents are created in England only by the highest courts: the House of Lords, the Judicial Committee of the Privy Council (for Commonwealth member states), the Court of Appeal and the High Court. The lower courts do not create precedents. The English rule of precedent is: decide as it was decided before ("stare decisis" rule). It has an imperative character, i.e., each court is obliged to follow the precedents developed by the higher court, as well as those created by itself. There is, however, an exception to the hard precedent rule. In 1966, the House of Lords issued a statement on matters of practice in which it allowed the possibility of derogating from the precedents it had previously created in case of established necessity. The power of the House of Lords to overturn its earlier decisions was enshrined in Parliament in the Administration of Justice Act 1966. Another source of Anglo-Saxon law is the law (statute). It appeared much later than the precedent, but gradually acquired a very important role in the legal regulation of social relations. English statutes are classified on various grounds. By scope, they are divided into public, extending to an indefinite number of subjects and operating throughout the UK, and private, extending to individuals and territories. Often, the Parliament delegates its powers to adopt normative acts to other subjects (the queen, the government, ministries). The totality of these acts constitutes "delegated legislation". The legal force of such acts is determined by the transfer of part of the legislative functions of the Parliament to the relevant body. Therefore, their decisions are considered part of the law and are binding on all citizens. The highest form of implementation of delegated lawmaking is the "order in the Council", which formally represents the order of the Privy Council (monarch and privy councillors), but in fact - the government. In addition, autonomous legislation stands out - acts of local authorities operating in the relevant territory, some institutions, organizations (Anglican Church, trade unions, railway, construction, transport, gas companies, the Law Society, etc.). They make decisions that are binding on their members, the users of their services. The legal force of such acts is inferior to that of acts of Parliament and delegated legislation. By hierarchy, they approach the acts of law enforcement agencies. A statute takes precedence over a precedent in the sense that it can override it. However, this does not mean that the precedent is derived from the law, secondary in nature. The peculiarity of Anglo-Saxon law lies in the fact that the law in it is implemented not independently, but through precedents, through them. Before becoming a valid act, it must be "acquired" by binding judicial decisions concretizing it. English judicial practice knows many cases when the adopted statutes remained stillborn, were ignored by the courts, or their meaning and meaning were interpreted differently. Hence, the English statute cannot be regarded as a source that destroys or levels the system of precedents, as an alien form of law, rather, on the contrary, it itself has become an appendage of this system, supplementing and improving it. The ancient source of Anglo-Saxon law is custom. Today its role among other sources of law is continuously decreasing. However, in terms of content, custom was very important for the formation and development of Anglo-Saxon law. The fact is that jurors, in comparison with professional judges, do not have the knowledge about the norms, previously adopted court decisions, which are necessary for an accurate legal qualification of actions. For them, the guidelines in assessing specific events and facts are those traditions, customs, norms of behavior that have developed in England and individual counties. Taking into account these norms, a common opinion is developed, the position of the jury in a particular case. The "division of labor" between judges and jurors did not take place immediately and not to the full extent, and the jurors inevitably participated in the consideration of questions not only of fact, but also of the law itself. Therefore, it is necessary to recognize as logical the thesis of English lawyers that common law is customary law, that it is based on custom, tradition. As for the ancient customs, they entered the fabric of English law in a more direct way. According to the current rule, ancient customs (before the XNUMXth century) should be taken into account when deciding specific cases by judges. So, in England, from time immemorial, there has been a custom that allows hanging fishing nets on a foreign coast, regardless of the consent of the owner of the coastal strip. It is still legally significant and recognized by the courts. Many issues of parliamentary procedure, relationships between senior government officials, ritual and ethical norms of the behavior of the monarch, members of his family are also regulated in the customary legal order. Here the custom fills the niches in the law, which were formed due to the absence of a written constitution and other constitutional acts. A special place among the sources of Anglo-Saxon law is occupied by legal doctrine (science). If in the Romano-Germanic legal system it is not an independent form of expression and consolidation of legal norms, although it plays a decisive role in it, then in Anglo-Saxon law some literary sources are universally recognized and are used in solving specific cases. Such sources include old common law manuals written by the most authoritative English jurists, most often judges. The significance of these sources lies not so much in the theoretical judgments of the authors, but in the mandatory precedents presented in them, cited and analyzed by scientists. For example, the most authoritative source, Kok's Institution, as English lawyers themselves admit, is cited in courts more often than any other collection of precedents. Modern scientific guides do not act as primary sources of Anglo-Saxon law, they only have a persuasive value in solving court cases. Thus, the English doctrine as a source of law should be understood not as a legal science proper, theoretical concepts, ideas, constructions, but judicial comments, descriptions of case practice, designed to serve as a practical guide for lawyers. Structure of Anglo-Saxon lawIn English law there is no classical division into public and private. Instead, its division into common law and the law of equity has historically developed, which still determines the entire legal architectonics. Such a difference in the structural division of the two main legal families (Romano-Germanic and Anglo-Saxon) is not historically accidental, but deeply logical, due to the fact that one arises in a rational way, the other in an evolutionary way, through a historical genesis, a gradual formalization of existing relations. Hence, the differences in the structure of Romano-Germanic and Anglo-Saxon law lie in the different foundations of their construction, and, consequently, in the different logic of their development. The structural features of Anglo-Saxon law are manifested not only at the macro level, but also at the level of legal norms. Case rules are cases that have their own structure and special content. And the connection of these initial elements (microcells) of Anglo-Saxon law, due to certain circumstances, is often not logical, rational, but traditional-historical. So, in a natural evolutionary way, disputes about real estate, trust relationships, cases of commercial partnerships, bankruptcy, and inheritance fell into the scope of the law of justice. Criminal law cases, contract law, institutions of civil liability and some others have moved to the subject of common law. However, there is no rigid divide here, and at present certain concepts, institutions migrate from one sphere to another or are common to both, which is primarily due to the application of common law precedents and justice law precedents by the same judges who are interested in their convergence. and unification of their concepts. 3. Romano-Germanic legal system Origins of the Romano-Germanic legal systemRomano-Germanic law arose in the XII-XIII centuries. as a result of the reception of Roman law by the countries of continental Europe. The basis for reception in the economic sphere was the development of trade, crafts, and the growth of cities. Feudal norms based on the ideas of vassalage and patrimonial jurisdiction, rooted in the countryside, did not correspond to the principles of self-government of free, "free" cities. They needed a different system of legal regulation, based on the ideas of formal equality and independence of market participants. Roman law turned out to be such a system, most consistent with these ideas. Initially, the social basis and scope of its application in medieval Europe was predominantly the urban population, but after a few centuries, with a change in the rural way of life, land relations in the countryside, the legal system that originated in the cities became a national, continental European one. In addition to economic reasons, there were also socio-cultural prerequisites for the borrowing of Roman law by Europe. The development of education, art, and culture here paved the way for the perception of Roman legal concepts, views, concepts, and structures. An important role in this process was played by universities, where original Roman texts were studied (school of glossators) and then adapted to the conditions of the Middle Ages (school of post-glossators). It is no coincidence that some researchers of Romano-Germanic law consider it as "the right of reason", "the law of universities". University professors were actively involved in improving the legal doctrine, the categorical apparatus, and later - the development of models, drafts of the most important laws, codes. Judges, prosecutors, and lawyers were educated at universities, which furthered the practical application of the Roman legal doctrine. An important prerequisite for the reception of Roman law was also the blessing of the Christian church. For many centuries the church had a negative attitude towards Roman law, and it took the authority of Thomas Aquinas to overcome this prejudice. The organizational decision to remove the church inquisition from civil trials was made even earlier by the Fourth Council in Latran (1215) From the XNUMXth century Romano-Germanic law is actively developing, overcoming state borders, and becomes the property of all of Europe, excluding island England. In the XVI-XVIII centuries. the process of legal development of Europe takes on new forms. The formation of nations and national statehood introduced elements of legal nationalism into it. The general principles and principles of Roman law were integrated into national regulatory systems. This process ended with the development of national legislation, national codes, taking into account the peculiarities of the social structures of various countries. At present, the democratic traditions of Romano-Germanic law have been supplemented by the ideas of creating a "European home", the European Union, which leads to the legal integration of countries, overcoming national-state borders, and with them legal nationalism. The bases of integration are the general principles, principles, "spirit" of Roman private law. Today we can talk about a new stage in its development: the stage of rapprochement and unification of the legislative complexes of continental European countries and the construction of a common European legal system. Features of the norms of Romano-Germanic lawThe Romano-Germanic rule of law is a general rule of conduct formulated by the legislator or the bodies authorized by him. The main feature of this norm in comparison with the Anglo-Saxon precedent is a generalized, abstract character. The legislator usually formulates it as a social model of behavior, as a general scale, the boundary of what is permitted ("from" and "to"), without resorting to enumeration of particular cases, behavioral options. Even if the reason for the creation of a rule of law is a separate legal incident, it finds a solution in a generalized (abstract) form. The use of norms - models of behavior allows the legislator to quickly influence social relations, change, transform them, which is an unconditional advantage of this type of legal regulation. Romano-Germanic norms have a systemic-hierarchical character, form interconnected complexes of subordinate provisions in terms of legal force and social significance, among which there are "main" and secondary, less significant rules. This circumstance greatly facilitates the search for and application of existing laws by lawyers of the Romano-Germanic system. At the same time, the generalized character gives the norms and negative features: the more general the norm is, the more difficult it is to apply it in practice. There is a serious problem of its concretization and interpretation. For this, many techniques, methods of interpretation are used to clarify the will of the legislator. As a result, judicial, arbitration, and other bodies develop many secondary norms, provisions that clarify and specify the provisions of laws. Sources of Romano-Germanic lawThe most important source of Romano-Germanic law is the law. Laws are adopted by the parliaments of the countries of the system, have the highest legal force and apply to the entire territory of the state, to all its citizens. They, from the point of view of modern doctrine, should express the will of the majority of society, basic human rights, social justice. The law takes precedence over all other sources of law. It can prohibit or legalize a custom, certain provisions of judicial practice, and domestic treaties. When a custom or doctrine is fixed in the text of the law, they become part of it, its content. At present, laws regulate all the main aspects of the life of society, fix the legal status of subjects, their property, relations between them. According to the Romano-Germanic doctrine, laws are divided into constitutional and ordinary (current). In all countries of the system, the principle of the priority of constitutional laws in relation to ordinary laws is enshrined. Their supremacy is ensured by special constitutional courts or supreme judicial bodies. For constitutional laws, a special procedure is provided for their cancellation, changes, which presuppose the consent of a qualified majority of deputies. The subject of regulation of laws are the most important issues of social structure, the rights and freedoms of citizens, the structure, organization of state power. An important place among current laws is occupied by codified acts (codes). Romano-Germanic law, unlike Anglo-Saxon law, does not strive for external unification, systematization of normative material (incorporation), but for meaningful, internal unification, based on a significant processing of normative material, "division of labor" between individual norms, their cooperation (codification). Codes are usually sectoral in nature (civil, criminal, commercial, family, etc.) and act as a kind of "center of gravity" for other norms of these industries. In addition to laws in the countries of the Romano-Germanic system, many by-laws are adopted: decrees, regulations, instructions, circulars, and other documents issued by the executive branch. Some of them have a delegated nature, and their significance and role in legal regulation are determined by the powers of the bodies that issued them. Other decisions are made on the initiative of the executive and administrative bodies themselves. From the point of view of their legal force, they are inferior to acts of the first category, but their number is very large and therefore, especially in those countries where there is no strict system of control over their adoption, they have a significant impact not only on organizational relations that develop within the executive branch, but and on the activities of citizens, institutions, enterprises. The second source of Romano-Germanic law is custom. Historically, many customary norms have been enshrined in laws and have become their content. But as an independent source of law, custom today plays a secondary role in the legal system, acting as an addition to the law. In a number of European civil and commercial codes, norms are fixed that allow the use of customs, habits of economic and commercial practice in the absence, "silence" of the law, that is, with their help, gaps in legislative regulation are filled. The custom also performs the function of a "shock absorber", a smoother of contradictions, injustice of legislative decisions. For example, in the FRG, it is used along with the principles of law when interpreting the unrepealed laws of the times of National Socialism in case they contradict the basic legal principles and ideas of social justice. From this point of view, the role of custom has not been fully exhausted. Judicial practice can be recognized as the third source of Romano-Germanic law, with certain reservations. The meaning of these reservations boils down to the fact that, according to the current doctrine, the rules of law can be adopted only by the legislator himself and the bodies authorized by him. Nevertheless, the existing contradictions, gaps in legislation and, most importantly, the wide scope provided by parliaments to the judiciary, led to the development by judges of principle decisions that clarify the provisions of the law, and sometimes go against the will of the legislator. Such decisions are developed, as a rule, by the highest judicial instances and constitutional courts of the countries of the system. By virtue of the place and role of these instances in the judicial hierarchy, all lower judicial bodies are obliged to follow the practice they have formed of resolving cases of specific categories under the threat of canceling other decisions. Thus, original judicial norms are created - the legal provisions of judicial practice, which are taken into account by all lawyers applying the law. These legal provisions are published in judicial collections, become widely known and become part of the legal system. The structure of Romano-Germanic lawIn the countries of the Romano-Germanic legal system, the division of law into public and private, known since the time of the Roman Empire, which has become a classic, is used. The basis, criterion for the allocation of public law is the general, state interest (implementation of public goals and objectives), private law is a special, private interest (implementation of the goals of individuals, citizens, organizations). Public law regulates subordinate relations based on power and subordination, on the mechanism of coercion of obligated persons. It is dominated by imperative (categorical) norms that cannot be changed, supplemented by participants in legal relations. The sphere of public law traditionally includes constitutional, criminal, administrative, financial, international public law, procedural branches, the main institutions of labor law, etc. Private law mediates relations of a "horizontal" type, relations between equal independent subjects. Dispositive norms prevail here, acting only in the part in which they are not changed, not canceled by their participants. The scope of private law includes: civil, family, commercial, international private law, individual institutions of labor law and some others. Another structural feature of Romano-Germanic law is the consistent branch division of norms, their binding to specific branches of law and legal institutions. In accordance with the legal doctrine, all adopted normative provisions receive an appropriate branch "registration", taking into account the subject of their regulation and the peculiarities of the methods and means (method) of influencing the subjects of law. Such a logical sequence of subdivision of various elements of the normative-legal material is due to the rational nature, "university roots" of this legal family. 4. Muslim legal system Origins of the Muslim legal systemIslamic law arose as part of the Sharia (a system of prescriptions for believers in Allah), which is an essential component of the Islamic religion. The history of Muslim law, often denoted by the term "fiqh", begins with the prophet Muhammad (Muhammad), who lived in 570 (according to some sources, in 571-632, Muhammad, on behalf of Allah, addressed some basic rules of behavior, norms to believing Muslims. These norms were formulated by him chief way in public sermons. Another part of the legally significant norms was formed as a result of the life, behavior of Muhammad. Later, both of these norms were reflected in the primary sources of the Muslim religion and law. However, they were not enough for the systemic regulation of the entire set of legal relations of the Muslim community, and therefore after Muhammad's death, his rule-making activity was continued by the closest associates of the "righteous" caliphs Abu Bakr, Omar, Osman and Ali. Based on the Koran and the Sunnah, they formulated new rules of conduct that, in their opinion, corresponded to the will of Allah and Muhammad. In the case, " silence" of the Qur'an and Sunnah norms were established by joint discretion orindividually by each caliph. In the VIII-X centuries. Islamic jurists and Muslim judges - qadis, had a significant impact on the development of Muslim law. Their role in the formation of the Muslim legal system was so significant that some researchers began to define Islamic law as the right of lawyers. During this period, the main branches (interpretations) of Islam are born, legal gaps are filled, and many new prescriptions are formulated on the basis of the interpretation of the Koran. By the end of the X century. Muslim law was canonized, and the "gates of quest" for its researchers and reformers were closed. The "age of traditions" has come, the period of action according to established legal norms and doctrines. Muslim judges were deprived of the right, in the absence of the necessary norms in the Koran, Sunnah and other sources, to make decisions at their own discretion. They had to be guided by the accepted population of the country plainly. By the XIII century. Muslim law has practically lost its integrity and has become a polydoctrinal law, divided into different branches. The obligation to adhere to a particular law school was provided by the state, its legal policy. As a result, supranational Muslim law turned out to be fragmented and divorced into different national-state "apartments", received a territorial "registration". Like the Romano-Germanic law of the period of codification, it became national law. The further development of the Muslim legal doctrine followed the path of consistent elimination of internal contradictions, inconsistencies that existed within the framework of one or another persuasion, as well as the creation of general provisions, principles common to all Muslim legal schools. These norms-principles gave Muslim law logical integrity, harmony and significantly increased its regulatory potential. XNUMXth century marks a fundamentally new stage in the development of Islamic law. The formation of legislation as an independent source of normative regulation led to the gradual displacement of the legal doctrine, the reduction of its role, although in terms of content it continued to have a certain impact on the legal system. Since the second half of the XNUMXth century, there has been an active borrowing of European law, in particular Romano-Germanic, which at present in some Arab countries (for example, in Turkey) has practically supplanted Muslim legal norms. In other countries (Algeria, Egypt, Syria, etc.), Islamic law has been preserved in certain spheres of social relations, in particular in the sphere of the "personal status" of Muslims. In those countries where Islamic fundamentalist positions dominate (Iran, Pakistan, YAR, Libya, Sudan), the boundaries of Muslim law are wider, they include various institutions, sub-sectors of civil, criminal, state law, and other branches. Here there is a kind of renaissance of Islamic legal culture, a return to traditional Islamic values, which naturally entails the expansion of the subject of regulation of Muslim law. Features of the norms of Muslim lawThe system of Islamic law differs from other legal systems in its originality, originality of sources, structure, terms, constructions, and the concept of a norm. If continental European jurists under the rule of law mean the prescription of a specific historical legislator, then Islamic jurists understand it as a rule addressed to the Muslim community by Allah. This rule is not based on logical conclusions, but on irrational, religious dogmas, on faith. Therefore, it cannot be changed, canceled, "corrected", it is indisputable and absolute, it must be unconditionally fulfilled. The supra-social, dogmatic nature of Muslim legal norms suggests special ways of adapting them to existing social relations. The art of a judge, a law enforcer often consists in, without directly violating individual requirements of the norm, to achieve the opposite result with the help of various legal tricks, fictions, and other methods. In terms of content, the norms of Muslim law also differ significantly from European ones. They, as a rule, are not authorizing (granting the right to perform certain actions) or prohibiting. They are based on a duty, a duty to perform certain actions, which is also due to their religious nature. Sources of Islamic lawThe Koran, the holy book of Muslims, is recognized as the first source of Islamic law. Outwardly, this is a book of poems containing 114 suras (chapters), more than 4 thousand short poetic fragments, not connected by a common constructive idea, a single beginning. The texts themselves date from the period from 610 to 631 and represent the speeches and sermons of Muhammad, delivered by him on various occasions and circumstances, and subsequently collected into one work. Only a small part of them touch upon the issues of legal relations between Muslims and other believers, while most of the verses are devoted to issues of religion and Islamic morality. This source of religious and legal thought was greatly influenced by more ancient doctrines - Christianity and Judaism - mainly through the Pentateuch (Torah), the Talmud. The versatility of the content and the insignificant amount of legal provisions led to the fact that the Koran did not become a systemic legal document for Muslim law - like a constitution or a code. However, it was and remains for Muslim jurists the most authoritative source of Islamic law. Genetically close to the Qur'an and closely related to it is the second source of Muslim law - the sunnah, which is a collection of hadiths, i.e. legends about the life of Muhammad, his behavior, deeds, way of thinking and acting. This source has evolved over several centuries (from VII to IX), and the authentic nature of many hadiths is not in doubt, although there are legends of a rather hypothetical plan. Like the Qur'an, the Sunnah contains few legal norms, it is dominated by moral and religious provisions. Among the legal prescriptions there are no broad principles-generalizations; by virtue of the very nature of the Sunnah, it presents, first of all, specific incidents, cases from the life of Muhammad. The third source of Islamic law is ijma - the general decision of authoritative Islamic jurists. Muhammad believed that the Muslim community could not be wrong. This statement formed the basis for recognizing the legitimacy of this source. In fact, the most knowledgeable lawyers, theologians, act on behalf of the community, and they make a unanimous decision. The fourth source of Islamic law - qiyas - is a common solution by analogy. In Western legal systems, such a decision is not considered an independent source. It only ensures the "work" of the mechanism of normative or case-based regulation. In Islamic countries, however, the decision by analogy acquires special meaning and significance, since the object of analysis here is not the rational will of the earthly legislator, but a religious idea that has an absolute, timeless and undeniable character. Qiyas is not a continuation, part of the original norm or incident, and therefore forms a separate source of law. Among the secondary sources of law that arose in the later period of the development of Islamic states, one can include the law (legal act), which today in most Muslim countries plays a very important role in social regulation. It may contain norms that not only supplement and specify the provisions of the primary religious and legal documents, but also run counter to the Koran, Sunnah, Ijma (for example, on limiting the age of marriage to the age of majority, on allowing speculation, lending and credit operations). In this case, the law can hardly be considered a form of Islamic law. The deepest source of the Islamic legal system is the religious-legal doctrine. It was she who determined the special logic of the development of Muslim law, the originality of its formal sources, their close relationship. In certain periods of history, for example, in the XNUMXth-XNUMXth centuries, it received official recognition, legalization and acted as a form of law, at other times, as today, it faded into the background and took shape through ijma, qiyas, law. But in any case, this doctrine has been and remains the main nourishing source of Islamic law, its root system. Custom plays an insignificant role in legal regulation, unless, of course, it has religious grounds. Islamic jurists do not attribute it to law and do not consider it as its source. However, when relations are not regulated by law, they are not provided legally, custom can act as their regulator. Structure of Islamic lawThe structure of Islamic law also has significant features arising from its nature. It is not divided into common and private law, as in the Romano-Germanic system, or into common law and equity, as in the countries of the Anglo-Saxon family. Here there are other principles of integration, connection of norms, their structural unification. So, it is possible to single out legal complexes of norms, principles in accordance with the main Muslim sects (rits) - Sunni (Hanifi, Maliki, Shafi'i, Hanbali) and non-Sunni (Shiite, Wahbi, Zeidut, Abadi). The presence of various branches in Islam causes a similar differentiation in law, the unification of legal norms around certain religious movements. Each sense, as a rule, "acquires" a certain set of norms adopted in accordance with the chosen religious postulates. At the same time, the sectoral principle of differentiation of legal norms is also preserved, although with some peculiarities. In particular, there is a branch of "the right of personal status", which regulates family, inheritance and some other relations; tort law, establishing measures of criminal liability; muamalat, fixing civil law relations; the branch of the so-called power norms - the sphere of state and administrative law; international law (siyar). All actions in Islamic law are divided into five main categories: obligatory, recommended, permitted, condemned and prohibited. This classification is based on the corresponding religious and moral assessments of certain acts of behavior. The norms of Muslim law can also be classified (in terms of their generality) into norms-principles formulated in the form of theoretical generalizations, and causal norms that arose, as a rule, empirically (such, for example, are the norms of the Sunnah). 5. Socialist legal system Origins of the socialist legal systemThe socialist legal system arose in Russia in 1917. The reasons for its formation are not due to the peculiarities of the legal consciousness of the people, legal doctrine, sources and structure of law, but to the Marxist-Leninist ideology, its principles of the political structure of society. Hence the main differences that arose at the beginning of the XNUMXth century. legal systems from traditional legal families lie in the scope of the content of legal norms. In Soviet Russia and other countries of the socialist legal system, the following ideas were legally embodied: - centralized management of the economy, economic relations, which entailed the use of imperative norms, planned regulators, detailed regulation of civil contracts, the legal status of property and the powers of subjects; - the socialization of property, the creation of state, "public" property as the basis of the economy; - nationalization of enterprises, banks, economic property, and in some countries - land, other real estate; - regulation of the measure of labor and consumption and, as a result, the creation of social and legal institutions for the regulation of labor activity and the distribution of social benefits. State intervention in all spheres of society led to the gradual withering away of private law and the dominance of public law institutions. The ideological justification for this process was V. Lenin's thesis that the Soviet state does not recognize anything private. Many institutions of civil law, including the institution of property, acquired a public law character, the most important types of business contracts were concluded and implemented on an administrative and planning basis. In criminal and administrative law, state property was protected as a priority, there were prohibitions on engaging in private entrepreneurial activities, foreign exchange transactions, commercial mediation, etc. serious sanctions were provided for anti-Soviet agitation and propaganda, dissemination of information discrediting the socialist system, and actions contrary to communist morality were prosecuted . Procedural forms were simplified, the rights of the accused and defendants to defense were limited. The result was the formation of an accusatory bias, the ideologization of judicial proceedings, and the refusal to use the jury. At the same time, certain achievements are inherent in the socialist legal system. These include: - deep theoretical and practical study of the issues of use, possession, disposal of state property (including the right of economic management, operational management); - introduction into the world legal practice of the institutions of planning and legal regulation of economic relations, the civil law institution of supply, legal forms of protection of employees, ensuring a guaranteed right to work, free education, etc. At present, China, Vietnam, North Korea, and Cuba belong to the family of the socialist legal system. 6. Customary law system The system of customary (traditional) law is understood as the form of regulation of social relations that exists in the countries of equatorial, southern Africa and Madagascar, based on state recognition of social norms (customs) that have developed naturally and have become habitual for the population. Custom is the most ancient source of law known to all legal systems, but if in the countries of Romano-Germanic and Anglo-Saxon law it plays only a secondary role, then in Africa it has been and continues to be an important regulator of social relations, especially outside the cities. Numerous peoples of Africa have their own customs, designed to ensure the unity, cohesion of the social group (tribes, clans, villages), respect for the memory of ancestors, connection with the surrounding nature, spirits, and other supernatural forces. The mythical nature of customs, their pluralism (plurality), non-formalization and fragmentation do not allow them to be effectively used to create national legal systems similar to European ones. The period of colonization of Africa created the prerequisites for borrowing modern legislation, the judicial system, but did not fundamentally change the image of the legal consciousness of the majority of the rural population, which continues to focus on the old system of values. At present, the leaders of independent African states are systematizing existing customs, including them in industry codes and other regulations, but at the same time they often ignore the customs of other ethnic groups and social groups living in these countries. The same difficulties arise in the creation of the judiciary and the formation of the judicial process. The court, called upon (from the point of view of the European legal tradition) to resolve disputes between equal and independent participants, turns out to be alien to a tribe, a clan, where each resident is part of a single social group, is associated with its other representatives, and where internal conflicts are resolved not by recognizing the right of that or another person, but by their reconciliation. Thus, the current state of the legal development of Africa can be characterized as a difficult transitional period for determining the ways and means of interaction between two legal cultures: European legislative precedent and African common law. Chapter 33 1. The concept and foundations of the formation of the world legal order The world legal order is a system of social planetary relations, formed on the basis of general humanistic and natural law principles and functioning in accordance with the generally recognized principles and norms of international and domestic law. The world legal order should be considered as a certain reality, the result of the implementation of various relations, the interaction of people and states on our planet. The necessity and grounds for its formation are identified within the framework of three types of relationships: 1) man - immediate habitat - country - planet - space; 2) a person - a team - society - the world community; 3) a person - his legal status - the legal system of society (state) - international law - the world legal order. The most important factor necessitating the creation of a world legal order and its further strengthening is the solution of problems, which is feasible only with mutual consent and cooperation of different peoples and states. These are the problems of ecological safety, the search for and use of energy resources, the preservation of man as an original individuality, and the prevention of nuclear war. The next series of problems is related to the collective response to natural disasters - floods, hurricanes, volcanic eruptions, earthquakes. The need to establish global legal rules is caused by the ever-increasing internationalization of economic relations, the universal nature of the scientific and technological revolution, and the growing role and importance of new global information technologies. One of the factors that determine the possibility of the formation and development of the world legal order is the law itself, its universal essential qualities. For different peoples at all times, law is one and the same phenomenon, only with a different degree of development, design, understanding and development. 1. The universality and absoluteness of law in our understanding is proved by the presence of such essential principles and features that, firstly, characterize it as an independent social phenomenon, and, secondly, are present (in fact or in a trend) in any legal system on each of the historically designated segments of the path of its development. As such, one can name the principle of reasonableness (reason), the principle of justice, the principle of equality (equal freedom), the principle of free will and behavior. The principle of rationality, rooted in cosmic and natural expediency, humanizes law, as it were, determines the prospects and boundaries of its functioning. Any human creation that has passed the test of history can be considered expedient. And man himself, as Hegel believed, must find his reason in law. Naturally, everything irrational, fatal, destructive remains outside the law. For all its outward naivete and terminological abuse today, this principle has not yet received proper development in relation to modern legal realities, and its scientific interpretation remains at the level of the statements of ancient and medieval thinkers. The ideas of justice and universal equality of people, which arose in antiquity, received practical implementation in law in a historically increasing way. If in slave-owning Rome these principles applied only to free people, then in a feudal society the circle of people falling under their action was already differentiated by class, and modern legal systems of developed countries consolidate justice and equality as universal principles. The logic of expanding the scope of the circle of persons and guarantees for the implementation of these principles, in particular in the Anglo-Saxon legal system, can be traced on the example of such acts as the Magna Carta (1215), the Petition of Right (1628), the Habeas Corpus Act (1679). .), the Bill of Rights (1689). One of the cornerstones of any legal system is the principle of free will and conduct. When the freedom of one person clashes with the freedom of another, it becomes necessary to establish a correspondence between them, limiting one and the other. Restricting the limits of the actions of human freedom and testing it by the practice of communication means establishing a measure of freedom of expression of will and actions of each individual, the emergence of a general norm of behavior in accordance with this measure. Since ancient times, the defining importance of freedom for explaining the phenomenon of law has been noticed. "Freedom is the ability to do what is rightfully allowed," - stated in the Digest of Justinian. Kant considered human freedom as a fundamental principle of the rule of law. Marx pointed to the legal significance of freedom as a limit, to the legal forms of its existence in the form of a law. B. Chicherin, E. Trubetskoy defined law as a mutual restriction of external freedom through norms. The essential characteristics of law as a measure of freedom are emphasized by V. Nersesyants. In other words, this principle has a universal, cross-cutting character. Arising as an attribute of natural law, it has received its most complete comparative historical expression in modern positive law and international legal acts (the Universal Declaration of Human Rights of 1948, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and political rights 1966). 2. The universal significance of such features of law as normativity, formal certainty, consistency, security with authority and power seems indisputable. In particular, normativity manifests itself already at the earliest stages of the development of human society and among all peoples inhabiting our planet. Archaeologists and ethnographers are discovering elements of social normative regulation among the Australian Aborigines and in the countries of tropical Africa, at the level of hunter-gatherer groups and in more developed social organizations. Mononorms and norms - the scale of behavior is found in the Hindu Vedas, the Muslim Koran and the Christian Bible, in the laws of Manu and Hammurabi, Salic and Russian truths. 3. The historical continuity of "universal" law can be observed in the functioning of various legal institutions, structures, technological legal processes. For example, the transformation of prohibitions in law is interesting - from an absolutely categorical and unambiguous "taboo" in a pre-class society to a modern multi-channel method of legal regulation. In all legal systems one can meet in one form or another a triad of subjects of law: an individual, a collective, a state. The sources (custom, precedent, normative act) and the stages of the formation of law look typical, there is much in common in the combination of natural, traditional and positive principles in the legal systems of our time. The foregoing allows us to conclude that law is a universal human phenomenon and it is united in its original essence as a measure of free will and human behavior. This is one of the most important factors in the global integration process, which, thanks to its humanistic qualities, promotes mutual understanding and cooperation of people belonging to different socio-political, religious, and ideological systems. The noted qualities of law as such allow the interaction of the norms of domestic and international law in the formation of the world legal order. 2. Characteristics of the modern world legal order The world order is the reality of our time. If things were different, there would be no well-established economic, cultural and scientific ties between states, trains, ships and planes would not cross borders, people would not be able to receive information about life in other countries, on other continents. The real nature of the world legal order is ensured by the presence and functioning of a network of international organizations on a planetary and regional scale. First of all, this is the United Nations (UN) - a universal international organization established on October 24, 1945, operating on the basis of the UN Charter, uniting 1 states as of October 1995, 185. Its statutory goals are: 1) to maintain international peace and security and, to this end, to take effective collective measures to prevent and eliminate threats to the peace, as well as to suppress acts of aggression or other breaches of the peace, and to settle or settle international disputes by peaceful means, in accordance with the principles of justice and international law, or situations that may lead to a breach of the peace; 2) to develop friendly relations among nations on the basis of respect for the principle of equal rights and self-determination of peoples, as well as to take other appropriate measures to strengthen world peace; 3) to carry out international cooperation in solving international problems of an economic, social, cultural and humanitarian nature and in promoting and developing respect for human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion; 4) to be a center for coordinating the actions of nations in achieving these common goals. Important for the establishment of the world legal order are the international organizations adjacent to the UN: the International Labor Organization, the World Health Organization, the World Intellectual Property Organization, the International Civil Aviation Organization, etc. The real nature of international legal relations is ensured by the presence of international courts, international legal procedures. The International Court of Justice (The Hague) accepts all cases submitted to it by the disputing parties (states) and cases that arise on issues specifically provided for by the UN Charter or existing treaties and conventions. The Court of the European Union, the European Court of Human Rights, and the Economic Court of the CIS have broad regional powers. The world legal order is a complex and dynamic system of relations between various states, international organizations, social and national communities. The world is constantly changing, and ideas about it are also changing, there is a need to improve international and national legislation, to pay attention to new global problems (nature conservation, computer wars, the fight against organized crime and AIDS, etc.). The world legal order is the result of the coordination of the interests of states and peoples. Each UN member state is an independent sovereign entity and builds its relations with other participants on the principles of non-interference in internal affairs, territorial integrity of states, equality and self-determination of peoples. Therefore, the main source of international law is international treaties, in which a balance of interests of various states is achieved, there is a mutual agreement of interests recorded in international legal and domestic regulations. The global legal order is a condition and guarantee of successful international cooperation in various spheres of human life. The cooperation of states in environmental protection is of lasting importance for present and future generations. The Stockholm Declaration of 1972 stipulates that states are responsible for activities that cause damage to the environment of other states. The 1977 Convention on the Prohibition of Military or Any Other Hostile Use of Means of Interference with the Environment, the 1979 Convention on Long-range Transboundary Air Pollution, the 1992 United Nations Framework Convention on Climate Change, and other treaties and conventions emphasize the need to protect the planetary environment and outer space, establish measures of responsibility for relevant violations, provide for procedures for solving these problems, resolve issues of compensation for damage, assistance, if necessary, from other states. International economic cooperation is organized and promoted by: the United Nations Industrial Development Organization, the World Trade Organization, the International Bank for Reconstruction and Development, the International Monetary Fund. At the interregional level, these issues are resolved within the framework of the European Economic Community, the CIS Economic Union. Activities in the field of economic cooperation are regulated by both domestic and international legal norms. Examples include the 1980 UN Convention on Contracts for the International Sale of Goods, the 1985 Seoul Investment Insurance Convention, and the 1991 Law on Foreign Investment in the RSFSR. International cooperation between state and non-state professional organizations in the field of culture, science and education is actively developing. An important role here is played by the United Nations Educational, Scientific and Cultural Organization (UNESCO), whose activities cover the planning and support of global and regional programs and projects, the development of the necessary regulations and standards, and the provision of assistance to specific states and organizations. At the initiative of UNESCO, only in recent years dozens of international legal acts have been adopted on the most pressing problems of our time: the Convention for the Protection of the World Cultural and Natural Heritage of 1972, the Convention on Technical and Vocational Education of 1989, etc. Cooperation in the fight against crime is topical today. Attempts to coordinate the actions of states to combat certain types of crimes have been known for a long time. Thus, at the Congress of Vienna in 1815, the first act was adopted to combat the slave trade, in 1910 - to combat the spread of pornographic publications, in 1936 - to combat the spread of narcotic drugs. Social and economic problems in individual states, on the one hand, and the scientific and technological revolution, the expansion of international integration, on the other hand, led to an increase in the number of serious crimes of an international nature: aircraft hijacking, international terrorism, murder of diplomatic staff, distribution of narcotic and psychotropic substances, etc. Many "traditional" international crimes (counterfeiting and slave trade, piracy and other crimes similar to them) have undergone significant changes, have become more complicated in composition, and the use of improved and new models of technical means by the perpetrators has made them more destructive and therefore more dangerous. The criminals themselves are becoming more sophisticated and organized, there is an internationalization of organized criminal groups. The real danger to the life and health of people, the introduction of chaos into international relations, the destruction of the world legal order, which is borne by international crime, requires states to make more active collective efforts to prevent and combat it. Cooperation in the field of combating crime is carried out in several directions. 1. Recognition of the danger to the world community of certain criminal acts and the need to apply joint measures to prevent them. Such were recognized as piracy, slavery and the slave trade, trafficking in women and children, forgery of banknotes and securities, illegal drug trafficking, distribution of pornographic publications, pirate radio broadcasting, breaking or damaging a submarine cable, failure to provide assistance at sea in the event of a collision of ships, illegal seizure of air courts. The danger of precisely these acts and the need to combat them were recorded in multilateral interstate agreements: in the UN Convention on the Law of the Sea of 1982, the Convention for the Suppression of Unlawful Seizure of Aircraft of 1970, the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons , including diplomatic agents 1973 2. Assistance in the search for offenders hiding in foreign territory and their transfer to the state concerned. Two ways are possible here: through diplomatic channels and through direct ties between the bodies conducting search and inquiry in their country (police, militia). So, at present, the search is being conducted through the International Criminal Police Organization - Interpol, which has contacts with national police authorities. Issues of extradition of persons who have committed crimes and persons convicted of crimes are provided for in multilateral and bilateral agreements. Thus, in 1983 the Council of Europe adopted the European Convention on the Transfer of Sentenced Persons, in 1993 the Russian Federation and the Republic of Latvia signed an Agreement on the Transfer of Convicts to Serve the Sentence. 3. Assistance in obtaining the necessary materials in a criminal case. If a crime is committed abroad or in several states, witnesses and material evidence may end up in another state. In order to obtain materials on the case, in some cases it is required to carry out the necessary investigative actions abroad, which is carried out by sending an appropriate order. This may be an order to interrogate a witness, inspect the scene, etc. Orders can be transmitted in various ways. Thus, the International Convention for the Suppression of the Traffic in Women of 1910 provided for this transfer both through diplomatic channels and directly between judicial authorities; The 1929 Convention for the Suppression of Counterfeiting Money speaks of a direct link between the relevant legal authorities; The European Convention on Mutual Assistance in Criminal Matters of 1959 establishes the possibility of communication between the Ministers of Justice, and in case of great urgency letters of request can be sent directly to the relevant authorities. 4. Studying the problems of crime and the fight against it, issues of the penitentiary system. For this purpose, international congresses are convened, international organizations and research institutes are created. 5. Rendering practical assistance to individual states in solving crime problems and studying these problems. Such assistance is expressed in sending experts to individual countries to provide specific assistance (determine the main directions of the fight against crime, give recommendations on the organization of the penitentiary system, methods of working with youth, etc.). 6. Exchange of information on various issues of combating crime. For the formation and normal functioning of the world legal order, it is extremely important to have a well-established procedural (procedural) mechanism of its action. International organizations and states can interact successfully only within the framework of a clearly defined and mutually agreed procedure. The process mechanism includes: 1) international legal procedural norms contained in charters, regulations, conventions and treaties and determining the issues of the activities of international organizations, the procedure for considering interstate disputes, appeals regarding violations of human rights, etc.; 2) international organizations and bodies of a planetary, regional and bilateral nature (international courts, tribunals, arbitration, economic courts and conciliation commissions); 3) legal structures that ensure stability, consistency, universality of procedures and procedural guarantees for the functioning of the world legal order. The procedural mechanism plays an essential role in establishing the interaction between the legal order of an individual state and the world legal order. It creates the necessary conditions for mutual influence, the development of integration trends based on the principles of justice and equality. It is possible to identify several areas of influence of international legal means on the legal system of specific countries. Firstly, we are talking about creating a mechanism for the direct action of international legal norms in the sphere of the internal legal order of a state. This is possible when: a) the generally recognized principles and norms of international law are recognized by the constitution (basic law) as part of the legal system of this state; b) they comply with the basic principles and norms of the constitution of that country; c) international norms are aimed at relations not regulated by domestic law, or improve the position of the individual, expand his rights and freedoms. The constitutions of many UN member states provide for the primacy of international law in gaps and conflict situations. Secondly, the improvement of the internal legal order is influenced by the "orienting" decisions of international organizations and bodies of general legal significance (recommendations, standards, judicial precedents). Thirdly, the collective decisions of interregional and regional communities of states are becoming increasingly important in the modern world. Here, "exemplary", "model" legislation for the united countries is gradually being worked out. Fourth, there may be indirect influence through the judiciary, especially constitutional courts. So, when considering the case on the constitutionality of Art. 12 of the Law of the USSR on the procedure for resolving labor disputes of May 20, 1991, the Constitutional Court of the Russian Federation referred to the International Covenant on Economic, Social and Cultural Rights of 1966, and when checking the constitutionality of Art. 21 and Art. 16 of the Law of the RSFSR on the rehabilitation of victims of political repression of September 3, 1993 - on the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the UN General Assembly on November 29, 1985 Naturally, the states themselves also have a very significant impact on the formation and functioning of the world legal order. The range of influence is varied - this is the establishment of international and regional organizations, active work on discussing issues and making decisions at the UN General Assembly, in its bodies and commissions, these are recommendations prepared by regional communities of states, proposals from international scientific congresses and conferences on various problems of our time. The formation of the world legal order is a complex and contradictory process. Here, problems arise related to the unequal level of culture and quality of life in different countries, with ideological and military confrontation, the economic expansion of superpowers, religious and racial fanaticism, etc. Therefore, humanity must further consolidate its efforts in building legal democratic states and a just world law enforcement. Author: Shevchuk D.A.
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