Methodology of comparative law;

General rules for comparative analysis;

Macro and micro comparison;

Normative comparison;

Functional comparison;

Comparison according to the degree of modernity.

Considering methodology comparative jurisprudence, we point out that in general it is a set of techniques and methods for studying the objects of the science of comparative jurisprudence. Each individually and all of them taken together are based on general and general scientific methods. Comparative law uses the methodological arsenal of legal science. In other words, comparative law is characterized by a specific subject matter rather than a specific method.

Comparative legal method is a necessary, but by no means the only element of the methodological apparatus of comparative law. None of the methods in practice operates in its pure form, it is always interconnected, intertwined with other methods.

In addition to the actual comparison and comparison of various elements of the legal system, methods such as:

- formal-legal (analysis of the essential content of the law of a particular country);

- sociological(clarification of the features of legal understanding within a separate legal family or national legal system).

Studying methodology comparative law, one should proceed from the presence general rules comparative legal analysis:

- correct choice of objects comparative analysis and the correct setting of goals, due to its nature and the needs of the subject of comparative law;

- comparison at different levels using methods system-historical analysis and analogies to clarify internal connections and dependencies within the compared legal systems, as well as the development of the latter in specific states and societies;

- correct feature identification compared legal phenomena, norms and institutions, as well as the establishment of social and state tasks, the solution of which led to their emergence and development;

- identifying the degree of similarity and differences in legal terms used in the compared legal systems;

- development and application evaluation criteria similarities, differences and incompatibility of legal phenomena, norms and institutions;

- determination of results comparative legal analysis and the possibilities of their use in rule-making activities and the development of legislation.

When conducting a comparative analysis laws of various states also apply certain technique.

First of all, the circle of objects of comparison is determined, which include:

- regulations;

- legal institutions and industries;

- individual rules of law;

- the application of the rules of legislative technique and the terminology used.

Comparison of the legal elements of different systems (families) can be divided into several options.

According to the form of analysis on Wednesday. jurisprudence allocate three directions of comparison of legal systems:

1) by institutions of comparison - macro- and micro-comparison:

- macro comparison (or basic comparison) is a general comparative analysis of the very structure of the legal system (history, classification, infrastructure, methodology and legal culture);

- micro-comparison (or superstructure comparison) - a comparative analysis of the specific provisions of individual institutions of substantive or procedural law of different legal systems.

2) for the purposes of comparison - functional (practical) and theoretical:

- functional (practical) comparison has as its ultimate goal the practical application of the result of this comparison;

- theoretical is a comparison for the purpose of academic application of the result of the comparison.

3) by levels of comparison: intranational, historical, intersectoral, intersystem, intrasystem:

- intranational- this is a comparison of the laws of the subjects of one federal state;

- historical- comparison of the current law with the old one or with the draft of the new one;

- intersectoral- comparison of institutions or branches of law of one country;

- intersystem- comparison of legal systems of different legal families;

- intrasystem- comparison of legal systems of one legal family.

In the traditional sense, comparative law (comparative studies) covers only intra-system and inter-system comparison.

Comparative legal research can be carried out in two ways. ways:

- normative;

- functional.

At regulatory comparison starting point are similar legal norms, institutions, legislative acts. Sometimes this approach is interpreted as a formal-legal (dogmatic) analysis.

The normative comparison led to two significant conclusions.:

1) outwardly identical legal terms do not always have the same meaning in different legal systems;

2) the same legal norms and institutions can perform different functions.

Functional comparison can be defined as the study of legal means and ways of solving similar or identical legal problems by different legal systems.

Functional comparison begins not from the recognition of certain legal norms and institutions as a starting point for comparison, but from the advancement of a certain social problem and only then the search for a legal norm or institution with the help of which the problem can be solved. FROMthe comparison goes not from the norm to the social fact, but vice versa, from the social fact to its legal regulation.

In functional comparison, legal institutions and norms are considered comparable if they solve a similar social problem, albeit in a diametrically opposite way.

Very common in functional comparison the similarity or proximity of the legal means used is clarified, the cause of which may be a common historical origin, or conscious legislative borrowing, or, finally, the parallelism of development paths, when in different legal systems, independently of each other, similar social conditions give rise to similar legal norms and institutions.

Wherein the solution of the same social problem can be achieved by a combination of different legal means in different legal systems.

Functional comparison should be limited from the functional approach when comparing objects of study. The need for a functional approach in comparison was emphasized by the Polish academician Rosemary. In his opinion, the subject of comparative law is legal institutions belonging to different systems in functional aspect, i.e. in development and dynamics. However, he did not have in mind the functional comparison, which is discussed here. It should also be distinguished from practical (functional) comparison, where the ultimate goal is practical application.

And functional comparison, and normative have the right to exist, especially in close combination, which is a mixed comparison. The current stage of development of comparative law urgently requires just such a comparison.

In addition to the above forms, levels and types of comparative analysis in the scientific literature according to the degree of modernity analyzed legal system, there are also diachronic, synchronous, asynchronous and binary comparisons.

-Diachronic comparison - this is a comparison that is historical in nature, when legal systems that existed in the past and their components are compared.

- Synchronous comparison deals with existing legal systems, revealing their tendencies towards convergence. Sometimes we are talking about the analysis of the political and legal systems of "similar nations" and peoples living in similar conditions (for example, the legal systems of Latin American countries).

- binary comparison - it is a comparison of two legal systems developing in parallel, for example, American and Japanese.

- Asynchronous comparison is considered as a comparative analysis of political and legal systems that differ from each other, but have certain similarities.

By volume of compared legal material can be distinguished:

- internal comparison (analysis of the legal system of one state);

- external comparison (comparison of two or more legal systems or legal family as a whole).

Any scientific comparison is a peculiar, complex phenomenon, the unity of three points: a logical method of cognition; process, i.e. a special form of cognitive activity; a special cognitive result, knowledge of a certain content and level.

An incoherent conglomeration of scientific facts, as a result of comparison, can turn into a coherent picture. The fruitfulness of comparison depends not so much on the number and actual accuracy of individual comparisons, but on their strict systemic nature, their subordination in solving the main research problem. The comparison should not be messy if we want to get valuable results. All comparisons that allow revealing the patterns of development of certain phenomena, their inherent connections and relationships have scientific value.

However, comparison is only one of the important points of scientific knowledge. By itself, it is not able to give a complete picture of the phenomena under study. Any comparison affects only one aspect or only some aspects of the compared objects or concepts, temporarily and conditionally abstracting other aspects.

Comparative legal method - private scientific method of legal science

Comparison is a constant element of all forms of knowledge. Abstracting from only the "prerequisite" and in this sense the role of comparison universal for any kind of cognitive activity, it should be said that its specific research significance in various sciences is far from being the same. For some of them, there is no need to develop a specially organized and systematically used comparative method, for others, the development of such a method is necessary due to internal needs (features of the subject of research and the specifics of cognitive tasks). That is why special comparative disciplines have been formed in a number of sciences. In each of them, the comparative method, while performing some general cognitive functions, at the same time has its own specifics.

This side of the problem should be emphasized especially, since sometimes in the legal literature comparison is mixed with the comparative method and even with comparative law.

Indeed, in their epistemological nature, comparison and the comparative method are close. It is obvious, however, that comparison as such is by no means the prerogative of the comparative method and comparative jurisprudence. Comparison can be applied in all areas of scientific knowledge and regardless of the comparative method, although the former, of course, cannot be mechanically opposed to the latter. Logical techniques do not act in a "pure" form, but are always included in the content of the method as a system of cognitive means and techniques used in a certain order to conduct research.

E.S. Markarian quite naturally proposes to distinguish between the function of comparison in cognitive activity in general and the comparative method as a relatively independent, systematically organized method of research, in which comparisons serve to achieve specific goals of cognition.

Comparative legal research, by identifying similarities, also reveals how the compared legal systems differ. Both tasks and possibilities of comparative legal research (determining the similarities and differences between the compared objects) are as interconnected as the similarities and differences of legal systems.

On the one hand, comparison implies something in common that can only be revealed by the comparative method, and on the other hand, it helps to establish differences in the compared objects.

The comparative legal method is one of the important means of studying legal phenomena. Thanks to its application, it becomes possible to identify the general, particular and singular in the legal systems of modernity.

The nature and features of the comparative legal method are revealed when illuminated, firstly, its relationship with general scientific methods, Secondly, its place and significance in the system of particular methods of legal science.

General scientific methods make it possible to reveal the unity and diversity of the formation and existence of various legal systems, fix their general patterns, development trends.

Indeed, legal science for a long time did not specifically develop the theory of the comparative legal method. But this by no means means a rejection of this method as such.

It is quite obvious that, using only one comparative method, it is impossible to reveal the whole variety of legal phenomena, but it is no less clear that this method, firstly, clearly defines the general direction of legal research, and secondly, ensures the correct interaction of general and particular scientific methods in the process of scientific research. It can be said that it plays the role of more of a strategy than a tactic of science.

The practice of scientific knowledge shows that general scientific methods are closely related to particular scientific ones. These latter, in turn, act in organic connection with them, relying on them as their philosophical basis. Private scientific methods are relatively independent methods of cognition that use the general scientific method, specifying its requirements in relation to the tasks of studying legal reality. General scientific methods operate through particular scientific methods in the study of the subject of special sciences, otherwise they will not be able to reveal the whole originality of the subject of these sciences.

The ratio of general scientific and particular scientific methods consists, therefore, in their interpenetration. General scientific methods operate everywhere, including in the structure of particular scientific methods, determining their effectiveness. At the same time, particular scientific methods are necessary to increase the effectiveness of general scientific methods, which they enrich.

So, the comparative legal method acts as one of the specific ways of applying general scientific methods in the study of legal phenomena. In this way, the comparative legal method is most often interpreted in legal science.

Like the connections between the individual aspects of law, there is a close relationship based on interaction and mutual assistance between the various methods of studying it. Each individually and all of them taken together are based on general scientific methods. On the one hand, they are an epistemological core and a guideline that gives a general direction to research, on the other hand, all methods, thanks to the new knowledge acquired with their help, constantly expand the scientific horizons and consistently enrich legal theory.

In the study of legal phenomena, the comparative legal method can realize all its possibilities only if its application itself is strictly systemic and purposeful. with all the variety of possible private methods, the research method should act as internally consistent and consistent in all its links, represent a harmonious hierarchy of different levels of legal research.

VECTOR OF LEGAL SCIENCE

CONCEPTUAL BASES OF COMPARATIVE LAW

Dedicated to the 85th anniversary of the Moscow State Law University named after O.E. Kutafin (MGYuA), my alma mater

METHODOLOGY OF COMPARATIVE LAW

The article outlines the main methods of comparative research of legal reality, which together form the methodology of legal comparative studies. The main attention is paid to macro- and micro-comparison, internal and external comparison, doctrinal comparison, normative comparison, functional comparison, comparative-historical method. The author's approach to the application of individual methods is proposed, which seems to increase their cognitive value. Keywords: methodology of comparative law, comparative legal method, comparative historical method, functional comparison, legal comparative studies.

Doctor of Law, Professor MGIMO

METHODOLOGY OF COMPARATIVE LAW

The article presents a comparative study of the main methods of legal reality forming in its entirety methodology of comparative law. The focus is on macro and mikrocomparison, internal and external comparison, over doctrinal and normative comparison, feature comparison, comparative-historical approach. The author's approach to the application of certain practices that seem to increase their cognitive value.

Keywords: methodology of comparative law, comparative legal method, the comparative historical method, functional comparison, comparative law.

Alexandrovich

MALINOVSKY,

Doctor of Law, Professor at MGIMO (University) of the Ministry of Foreign Affairs of Russia

| The methodology of comparative law is aimed at identifying the typical and the unique, the general and the particular in legal reality. As a rule, a comparative study is carried out in two stages. Initially (stage 1) it is necessary to determine the typical and unique

in legal reality in order to objectify their research. Unique - © A. A. Malinovsky, 2016

UNIVERSITY

named after O.E. Kutafin (MSUA)

New legal phenomena, which are an artifact of a foreign legal culture, are studied, as a rule, exclusively from the point of view of solving cognitive problems, without comparing them with domestic law. Indeed, thorough knowledge, for example, about the modern legal customs of the American Indians, is unlikely to be of great scientific and practical importance for a Russian lawyer. Moreover, the absence of analogues of foreign legal phenomena in Russian reality makes a full-fledged comparison impossible at all. In this case, the scientist is engaged exclusively in the study of foreign law, and does not use the comparative method due to the lack of equivalent objects of comparison.

Then (stage 2), after identifying the typical and the unique in the typical, the general and the special are analyzed. It is what is typical in the legal reality of different states that makes it possible to compare equivalent objects. For example, it is typical that marriage and family relations between spouses both in Russia and in the United States can be regulated by a marriage contract. At the same time, in this case, it will be possible to regulate the property relations of spouses, both in Russia and in the United States, by the norms of the contract, and special - the admissibility of regulation by the American marriage contract and non-property relations.

The stages of identifying typical and unique, general and special in legal reality are shown in Scheme 1.

Stages of identifying typical and unique, general and special in legal reality

name 0-E. Kutafin (MSUA)

Such a two-stage approach gives the researcher the opportunity to avoid making two mistakes - comparison of incomparable and incorrect comparison. For example, it is a mistake to try to compare the prescriptions of Muslim criminal law, which provides for liability for adultery in the form of stoning, and the prescriptions of the Criminal Code of Russia. Firstly, the domestic code does not criminalize adultery, and secondly, it does not contain such a type of punishment as stoning. The uniqueness of legal phenomena must be assessed, taking into account the specifics of legal culture, solely as belonging to a particular legal system. It is quite obvious that the absence of the above norms in the Criminal Code of the Russian Federation is not its drawback, since domestic legislation is not based on the Koranic doctrine.

In order for the comparison to be correct, it is correct to compare only comparable objects, for example, typical crimes and typical punishments, focusing on the analysis of the general and the specific in the criminalization and penalization of specific criminal acts in different countries. Thus, it would be correct to compare the legal definitions of murder and punishments for it. For example, let's look at the composition of a simple murder (Table 1).

Table 1

Composition of simple murder

State Definition of simple murder (basic composition) Min sanction Max sanction

Russia Murder, i.e. intentionally causing death to another person 6 years 15 years

England Simple murder is murder without malice Undetermined Life imprisonment

United States Manslaughter is the wrongful taking of a person's life without malicious intent. There are two types of simple murder: - deliberate, committed during a sudden quarrel or in a state of strong mental agitation; - unintentional, committed by illegal acts that are not a felony Not established 10 years

France Intentional infliction of death on another person constitutes intentional homicide Undetermined Up to 30 years

Germany Whoever kills a person without being a malicious killer is punished as a murderer At least 5 years

UNIVERSITY

named after O.E. Kutafin (MSUA)

Switzerland Who intentionally kills a person, if there are no aggravating circumstances At least 5 years

Spain Who caused the death of another person is punished as guilty of murder 10 years 15 years

Poland Not defined At least 8 years

China Not defined More than 10 years

Iran Killing is premeditated: 3 years 10 years

a) if the person is his own or or

by actions deliberately Vira Retribution

caused death to one (material (deprivation

predetermined life compensation

or to unidentified relatives of the perpetrator

person or group of the victim in advance) by a relative

not identified persons of the victim)

regardless of,

represented these actions

life threatening or not;

b) if the person unintentionally

caused the death of another

person, having committed intentional

actions in your own way

character representing

life threatening;

c) if the person unintentionally

caused the death of another

person by taking action

which by their nature

did not pose a threat to

life, but could cause

death to the victim

because of his age,

sickness, helpless

status and other similar

circumstances, which should

was to know the guilty person

As can be seen from table 1, similarities are found in the approach of legislators in various states to the definition of simple murder. Most codes specify that murder is the intentional taking of the life of another person, or (alternatively) the intentional infliction of death on another person. The definitions of murder are practically the same in England, the USA, and Germany. However, in some criminal laws (for example, in the codes of Poland and China), there are no legislative definitions of murder at all.

UNIVERSITY Methodology of Comparative Law "

name 0-E. Kutafin (MSUA)

There are also significant differences. So, as a simple murder in the American version, a murder in passion is considered, which, according to the Criminal Code of the Russian Federation, belongs to privileged compositions. Interesting from the point of view of the theory of criminal law is the definition of the Criminal Code of Iran, which includes signs of murder with indirect intent.

The comparative table clearly illustrates the peculiarities of sanctions for simple murder (for example, the unanimity of the legislators of Germany and Switzerland on this issue), a significant variation in maximum terms of imprisonment, as well as the specifics of the Muslim approach to punishment.

The comparative legal method includes a number of methods, including: macro- and micro-comparison, internal and external comparison, doctrinal comparison, normative comparison, functional comparison, comparative-historical approach, etc.1.

Macro comparison is a comparison of macro objects, which include legal families and legal systems2. This comparison involves a system-structural and functional analysis of the elements of macro-objects. As a rule, macro comparisons examine:

Sources of law (doctrine, law, precedent, custom, contract);

Legal ideology (for example, the influence of Muslim and Christian ideologies on the current law is being studied);

Legal outlook (in particular, one can compare the American sociological school with European positivism);

Interaction of parent and child legal systems within the same legal family (for example, issues of the reception of English law by the legal systems of the United States and Australia);

Interaction of legal systems belonging to different legal families;

Influence of international and European law on national legal systems.

It is advisable to start a comparative analysis of legal systems at the macro level with a comparison of the main state-legal symbols (coat of arms, flag, anthem, etc.). Even superficial similarities can be fraught with fundamental substantive differences that allow the comparativist to immediately identify the dominant political ideology and legal values ​​of a society. As an illustration, let's turn to the analysis of outwardly similar flags of Morocco and Vietnam.

1 Sh.-L. Montesquieu in his treatise On the Spirit of the Laws. One of the paragraphs of the work is called “How q to compare the laws of different countries”. A detailed theoretical analysis of the issues of method and logic was presented by H. Gutteridge in 1946. See: Gutteridge H. C. Comparative Law: An Introduction to the Comparative Method of Legal Study and Research. London, 1946. The modern approach to the problem is also very interesting. See .: Ansel M. Methodological problems of comparative Ä law // Essays on comparative law: compilation / compilation, introductory article, translation: V. A. Tumanov, M., 1981. And pp. 37-71; Cruz Peter. Comparative Law in a Changing World Taylor & Francis 2007 X

2 Based on the methodology of macrocomparison, the following fundamental works have been written: Rene David. The main legal systems of modernity. Moscow: Progress, 1988; Leger Q Raymond. Great legal systems of modernity: a comparative legal approach. M. : É Volters Kluver, 2009 and others. SCIENCES1

Flag of the Kingdom of Morocco Flag of the Socialist Republic of Vietnam

The red color of the flag is the color of the sheriffs of Mecca The red color of the flag means the success of the revolution

The green star means the five pillars of Islam: 1. Declaration of faith, monotheism and recognition of the prophetic mission of Muhammad (shahada). 2. Five daily prayers (namaz). 3. Fasting during the month of Ramadan (Uraza). 4. Religious tax in favor of the needy (zakat). 5. Pilgrimage to Mecca (hajj) The star represents the leadership of the Communist Party of Vietnam. Five ends of the star: workers, peasants, soldiers, intellectuals and youth

State motto - "Allah, Fatherland, King" State motto - "Independence, freedom, happiness"

Thus, even a superficial analysis of the above legal symbols is enough to clearly define the belonging of the Kingdom of Morocco to the Muslim legal family, and the Republic of Vietnam to the socialist one. An important object of comparison at the macro level is constitutional prescriptions, namely, the preamble and provisions that characterize the legal system of a particular state (for example, the hierarchy of the main sources of law).

Constitution of the Islamic Republic of Iran (1979) Constitution of the Republic of Kazakhstan (1995)

All civil, criminal and other laws must be based on Islamic norms. This article takes precedence over other articles of the Constitution, as well as laws and regulations, and the opinion on the compliance of laws with Islamic norms is issued by the faqihs (Islamic jurists) of the Council for the Protection of the Constitution and Islamic Norms (Article 4) The norms of the Constitution are the current law in the Republic of Kazakhstan , laws corresponding to it, other normative legal acts, international treaties, as well as normative resolutions of the Constitutional Council and the Supreme Court of the Republic (Article 4)

UNIVERSITY

named after O.E. Khggigina (MGYuA1

name 0-E. Kutafin (MSUA)

The above norms immediately guide the comparativist in the specifics of a particular legal system. Yes, Art. 4 of the Iranian Constitution eloquently indicates that we have before us a classic representative of the Muslim legal family, which means that the most important subject of research is the Koranic prescriptions. Article 4 of the Constitution of Kazakhstan informs that the normative decisions of the highest courts are full-fledged sources of law and, therefore, must necessarily fall into the subject of comparative legal study.

Micro-comparison includes a system-structural and functional analysis of the elements of the following micro-objects:

Legal norms (or their separate parts);

Articles of normative legal acts;

Legal institutions;

Branches of law;

Doctrinal definitions;

Judicial decisions.

When conducting a micro-comparison, in order to obtain reliable knowledge, one should take into account the time of adoption of the compared regulatory legal acts, as well as the belonging of the compared micro-objects to certain legal systems. Only in this way it is possible to reveal the causes and nature of the general and the special in the compared micro-objects3.

In the process of macro- and micro-comparison, in order to understand the causes of the detected features, it is necessary to take into account a number of circumstances, including:

Various historical, socio-cultural, political, psychological, religious and other factors influencing the compared legal phenomena and processes;

The specificity of the processes of lawmaking and law enforcement in different countries;

The specificity of the processes of law reception, its unification and harmonization;

Features of legal technique in the compared legal systems;

Different influence of international law on national legal systems.

Internal and external comparison

The method of internal comparison involves the comparison of objects of comparison belonging to the legal system of a particular country. Objects in W

in this case are: A

1. Legislation and jurisprudence of the federal state and □ its subjects (for example, comparing the prescriptions of the US Constitution]? and the Constitution of the State of Pennsylvania). ^

2. Sectoral legislation and judicial practice (for example, the institution of guilt in the civil and criminal law of Germany is compared). 5

This sectoral approach is reflected in the following classic works: Zweigert K., Ketz H. Introduction to comparative law in the field of private law: in 2 volumes / transl. with him. Yu. M. Yumashev. Moscow: International relations, 2000; Pradel J. Droit penal compare. Paris, 1995.

UNIVERSITY

named after O.E. Kutafin (MSUA)

An external comparison takes place when objects belonging to the legal systems of different states are compared. For example, it will be external to compare the provisions of the Constitution of Russia and the United States, the institution of guilt in the civil law of Russia and Germany

The essence of doctrinal comparison is to compare different teachings (scientists' positions) on the same issues4. Comparison, as a rule, is subject to scientific definitions of compared concepts, as well as their features, expressing the essential content of legal phenomena (processes).

An example of a comparison of interpretations of various teachings on the issue of the source and form of law is presented in Table 2.

table 2

Comparison of interpretations of various doctrines on the issue of the source and form of law

Legal doctrine Historical school of law Divine theory of law Legal positivism Sociological school

Source of law National spirit (public legal consciousness) Divine will Will of the legislator Judge's decision

Form of Law Custom Quran, Bible Law Precedent

For a more visual identification of similarities and differences in the scientific definitions of the compared concepts, it is advisable to use the technique of their schematic representation. In this case, it is advisable to place each compared feature on a separate line. Table 3 presents a comparison of doctrinal definitions of crime.

Table 3

Comparison of doctrinal definitions of crime

Doctrinal definition of crime French doctrine (J. Levasseur, A. Chavan, J. Montreuil) English doctrine (James F. Stephen) Muslim doctrine (Al-Mawardi)

Signs of a crime Action or inaction Provided for and punishable by criminal law, imputable to its executor, not justified by the exercise of any right Action Prohibited by law under pain of punishment Action Prohibited and punished by Allah

See, for example: Fletcher J., Naumov A. V. Basic concepts of modern criminal law. M., 1998.

UNIVERSITY Methodology of Comparative Law " *

name 0-E. Kutafin (MSUA)

Table 3 clearly shows that the most complete is the French definition. In addition to indicating such similar (with other definitions) signs as criminality and punishability of action or inaction, the definition contains an indication of the guilt of the perpetrator and the absence of justifying circumstances (necessary defense, extreme necessity, etc.), which reveals the specifics of the French definition.

An interesting feature can be traced in the English definition. In it, a crime is prohibited under pain of punishment, which indicates an emphasis on such an objective of criminal law as deterrence.

The religious specificity of the prohibition and punishability of an act is visible in the Muslim doctrine. An act is criminal if it is forbidden and punishable not by law (as in French and English), but by Allah.

Normative comparison consists in comparing the prescriptions of legal norms, legislative definitions of the compared normative legal acts in order to identify similarities and differences.

The objects of comparative analysis can be:

Normative legal act;

The rule of law (including the rule of case law, customary law and contract);

Separate elements of the rule of law (hypothesis, disposition, sanction);

Article of a normative legal act;

Legislative definition;

legal term.

The task of normative comparison is to identify the unique and typical, general and special in the legal regulation of social relations through a formal legal analysis of the objects of comparison.

When conducting a comparative analysis of the legal norms of Russian and foreign legislation, it must be borne in mind that the normative definitions of certain legal concepts in the legislation of some foreign countries may be absent. In the Anglo-American legal family, this gap can be filled by precedent, but in the Romano-Germanic legal family, this fact significantly complicates the understanding of foreign law.

When making a comparison, it is necessary to take into account the terminological originality of the definitions of foreign law.

An example of a detailed comparison of the definition of "murder committed in a state of passion" according to the criminal codes of Russia and Germany is shown in Table 4.

Comparative analysis shows that the disposition of Art. 107 of the Criminal Code of the Russian Federation contains A

more psychological signs that characterize the state of affect, □

than § 213 of the German Criminal Code, so the Russian version seems to be more accurate. A comparative analysis of the sanctions reveals the severity of punishment under the Criminal Code of Germany, which is unexpected for the privileged composition - imprisonment for up to 10 years.

In the process of comparison, the problem of the accuracy of legal translation often arises. Such a case occurs when the researcher works with a foreign primary source, i.e. with the text of a foreign regulatory legal act (precedent or doctrinal provision) in the original language. Main task-

UNIVERSITY

named after O.E. Kutafin (MSUA)

cha is to correctly translate “from a foreign legal language into Russian legal language”5.

Table 4

An example of a detailed comparison of the definition of "murder committed in a state of passion according to the criminal codes of Russia and Germany

Titles Murder committed in Lesser Grave

compared articles in a state of passion. Art. 107 of the Criminal Code of the Russian Federation a case of murder § 213 of the Criminal Code of the Federal Republic of Germany

Definition Murder committed Committing a murder while

crimes in the state of sudden absence of guilt in the state

arose strong rage

emotional excitement (affect)

An objective sign There is no similar sign Committing a murder at the place where the subject of the murder

side was provoked

crime victims

Causes of affect / Violence and bullying Abuse

fury caused by the injured party of the injured with the subject

the victim of the crime or with his relative

A serious insult from a serious insult from

side of the victim side of the victim

Illegal behavior Similar symptom

the victim is missing

Immoral Behavior Similar Feature

the victim is missing

Other causes Long-term Similar symptom

of affect / rage, there is no psychotraumatic situation that arose in connection with the systematic illegal or immoral behavior of the victim

Minimum Restriction of liberty for a term Imprisonment for 1 year

sanction up to 3 years

Maximum Imprisonment for a term up to Imprisonment for a term up to

sanction 3 years 10 years

Let's illustrate the problem with a concrete example. Anglo-American criminal law establishes responsibility for a crime, which is terminologically referred to as "robbery". Most specialized

See details / Malinovsky A. A. Comparative criminal law. M. : Yurlitinform, 2014. S. 25-29; Levitan K. M. Legal Translation: Fundamentals of Theory and Practice (English, French, German). M., 2011.

UNIVERSITY Methodology of Comparative Law "^^

name 0-E. Kutafin (MSUA)

English-Russian legal dictionaries translates this term as robbery. A comparatist who trusts a dictionary may come to the conclusion that robbery in Anglo-American law and robbery in Russian criminal law are one and the same crime, since they are terminologically defined in the same way.

The problem is further complicated by the fact that in the American criminal laws published in Russian, for example, this term is generally translated as “robbery”. The question immediately arises: Is the American “robbery”, i.e. "robbery" Russian "robbery"?

A detailed study of foreign legislation and its comparison with the Russian criminal code makes it possible to conclude that the desired identity is missing. By "robbery" in most cases is understood theft with the use of a deadly weapon or with the infliction of grievous bodily harm. The equivalent of this crime in Russian criminal law is robbery. Therefore, the most accurate translation of “robbery” from legal English into Russian legal language should be translated as “robbery”6.

The differences identified as a result of the regulatory comparison are subject to a detailed analysis, which is aimed at:

Determine whether these differences are purely terminological or substantive;

To study the advantages and disadvantages of foreign legislation;

Functional comparison

The task of functional comparison is to compare the functions of compared (homogeneous) objects to reveal similarities and differences not in essence and not in the structure of the objects themselves, but in the functions they carry out.

The subject of study in this case is not the rules of law (which are studied through normative comparison), but the effect they have on the regulation of social relations. The functional approach (unlike the normative one) also has another evaluation criterion: the best of the compared laws is not the one that has no complaints in terms of legal technique, but the one that performs its function better than the others7.

When making a comparison, it must be remembered that the category "function" is widely used both in jurisprudence and in legislation. Suffice it to recall such topics of the course "General Theory of Law and State" as the functions of law and the functions of the state. W

For the purposes of a more detailed comparison, it is necessary to distinguish between the general functions of A

rights (for example, regulatory and enforcement) and special functions of law- □

va (for example, the preventive function of criminal law); general functions of the state-]?

functions (internal and external) and special functions of state bodies ^

(for example, the function of administering justice). ^

See: Fedotova I. G., Tolstopyatenko G. P. Legal concepts and categories in the English language. M., 2006. S. 288.

For details of the application of this method, see Michaels R. Functional

ny method of comparative law // Bulletin of civil law. 2010. No. 1. SCIENCES1

Functional comparison can include both quantitative and qualitative analysis of functions. For example, the functional difference between Russian and American jury trials is that the American court has the right to consider not only criminal but also civil cases. Thus, strictly speaking, compared to the Russian jury trial, it performs one more function, i.e. administers justice in both criminal and civil cases. There are no particular difficulties in quantitative analysis, since the legislation of all states, in particular on law enforcement agencies, contains detailed lists of the functions they perform.

Qualitative analysis consists in looking for similarities and differences in how compared objects perform the same function. In this case, the researcher's field of vision should include, for example, the specifics of the implementation of regulatory, protective and other functions by a legal norm. A good example here is the functional analysis of the criminal law of various states. In particular, on the basis of judicial statistics, one can find out to what extent a specific criminal law norm of one state performs its protective and preventive functions better than a similar norm of another state.

The results of comparing the functions of the objects of comparison (legal norms, legal institutions, legislative acts, law enforcement agencies, etc.) are presented in Table 5. For example, we will illustrate a functional comparison of the institution of a marriage contract in the USA and Russia.

Table 5

The results of comparing the functions of objects of comparison (legal norms, legal institutions, legislative acts, law enforcement agencies, etc.)

The institution of the marriage contract is designed to regulate the following areas Russia USA

property relations between spouses + +

personal non-property relations between spouses (mutual rights and obligations, grounds for divorce, etc.) - +

Table 5 clearly shows that the regulatory function of the institution of a marriage contract in the United States is much broader than in Russian family law, since it also regulates personal non-property relations between spouses. For example, American marriage contracts detail specific household duties, the specifics of sexual relations (including the quantity and quality of sexual acts), the joint or separate leisure of the spouses, the duties of raising children, etc. There are also points that are completely unusual for a Russian lawyer. So, according to the marriage contract, Nicole Kidman is obliged to pay her husband Keith Urban for each year spent without drugs, 640 thousand dollars.

As an example, here are excerpts from the marriage contract of Hollywood stars Katie Holmes and Tom Cruise, which includes 860 points:

1. Holmes will receive a cash award of $3 million each year of marriage, and after six years of marriage with Cruise, will receive a bonus of $20 million.

UNIVERSITY Methodology of Comparative Law "

name 0-E. Kutafin (MSUA)

2. Holmes is required to take an annual drug test.

3. Holmes is required to attend Scientology courses.

4. Holmes is obliged to agree with everything that Cruz says, and in a conversation with him, smile.

5. Holmes must maintain a happy atmosphere in the family.

6. Holmes has no right to joke about homosexuality and say ridiculous things.

Of considerable interest to the researcher is such a kind of functional comparison as a problematic comparison. Its essence is to identify and compare ways to solve the same social problems by legal means in different legal systems. In particular, ways to solve the problem of the constitutionality of abortion, the abolition of the death penalty, the legalization of same-sex marriages, etc. can be compared. The most successful model for solving the problem can then be adopted by the national legislator and law enforcer.

As an example, various approaches to addressing the legality of abortion in the US and Germany are shown in Table 6.

Table 6

Different approaches to solving the problem of the legality of abortion in the USA and Germany

Country USA Germany

Socio-legal problem Legality of abortions. Does a woman have the right to an abortion? The legality of abortion. Does the fetus have the right to life?

Year 1973 1993

The body that decides the problem The Supreme Court of the United States The Constitutional Court of the Federal Republic of Germany

The essence of the dispute On the contradiction of the US Constitution (9th and 14th amendments) of state laws prohibiting abortion On the unconstitutionality of the 1992 law of the Federal Republic of Germany "On the legalization of abortion"

Controversial issues Can the law prohibit abortion? Can the law regulate women's right to abortion? Is abortion a crime against life? Can the law allow abortion if the moment of the beginning of life coincides with the moment of conception? Is it a crime for a woman to have an abortion?

Judgment The law cannot prohibit abortion - it is unconstitutional. State laws may regulate a woman's exercise of this right. The Roev case. Wade (1973)* The abortion law is unconstitutional. Abortion is allowed only in exceptional cases specified in the law

See, for example: Sakevich V. 40th Anniversary of the US Supreme Court's Historic Ruling in Roe v. Wade. and^: http://www.demoscope.ru/weekly/2013/0539/reprod01.php

Comparison of Court Decisions The US Constitution recognizes a woman's right to an abortion The German Basic Law does not recognize a woman's right to an abortion, since the fetus has a constitutional right to life

Conclusions Abortion without medical and social indications is not a crime Abortion without medical and social indications is a crime

The comparative-historical approach allows research to be carried out by comparing two or more objects of comparison taken in retrospect8. The above method can be applied in two cases:

Firstly, with a diachronic analysis of the historical features of the legal regulation of specific social relations at different times within the same legal system (for example, a comparison of the norms of the Criminal Code of the RSFSR of 1961 and the Criminal Code of the Russian Federation of 1996). The use of the comparative-historical method is necessary so that the comparativist “does not reinvent the wheel”, allegedly offering innovations in modern Russian legislation, but remembers that in jurisprudence often “the new is the well-forgotten old”. In particular, even a brief historical digression makes it possible to reveal that, for example, the death penalty in Russia has already been abolished by the Decree of the Presidium of the Supreme Soviet of the USSR of May 26, 1947, and Art. 143 of the Criminal Code of the RSFSR of 1922 prescribed that "murder committed at the insistence of the murdered out of a sense of compassion is not punishable", thereby decriminalizing killing out of mercy.

The application of the comparative historical method to the knowledge of the patterns of evolution of one's own legal system is necessary for any researcher. The jurist should not be, figuratively speaking, "Ivan, who does not remember his relationship." Therefore, it is methodologically wrong to ignore the study of the history of the development of domestic law.

Secondly, the comparative-historical approach can be used in the simultaneous comparison of legal norms regulating the same social relations in different legal systems (countries) in a specific historical period (for example, comparing the legislation of the states of Europe and Asia in the Middle Ages).

The comparative-historical method is advisable to apply in the terminological analysis of foreign law. So, for example, Professor M. D. Shargorodsky, examining the criminal liability for murder, notes that under the term "mord" the right of the southern Germans understood a secret murder. Cases were suitable here when the killer hides the corpse, covering it with branches, or throws it into the water. According to Anglo-Saxon law, the concept of "mord" was used in cases where the killer remained unknown or denied the murder9.

See: Kovalevsky M. Historical and comparative method in jurisprudence and methods of studying the history of law. M., 1880; Rulan N. Historical introduction to law: textbook. manual for universities / ed. A. I. Kovler. M. : Nota Bene, 2005.

Shargorodsky M. D. Selected Works on Criminal Law. M., 2003. S. 25.

UNIVERSITY Methodology of Comparative Law

name 0-E. Kutafin (MSUA)

The historical-linguistic analysis of a legal term can also be very informative. For example, let's analyze the term "felony", denoting a serious crime in Anglo-American law. The very word "felony", K. Kenny notes, contains an indication of confiscation, which is a consequence of a crime: it comes from the words - Fee, which means fief, and Lon, which means price; thus, a felony is such a crime that "costs you your property" to commit. Initially, any felony (with the exception of petty theft) was punishable by death, while misdemeanors were never punishable by death. Therefore, the concept of the death penalty became so closely connected with the concept of the felony that every statute that declared any crime a felony, tacitly assumed that it should be punished by the death penalty.

The procedural approach to the problem is also interesting. According to J. F. Stephen, the crime is called a felony because the feudal lord himself conducted the investigation and trial in this case (hence the felony is a crime under the jurisdiction of the feudal lord). Other crimes (misdemeanors) were investigated by other criminal prosecution bodies (English manors - local governments)11.

The peculiarity of the comparative-historical approach is that it is not an exclusively legal way of knowing the legal reality. In this case, the comparativist also needs to analyze the socio-cultural, religious, economic, political, psychological and other patterns of the evolution of law.

Using the comparative historical method, it is also advisable to study the history of the emergence and evolution of individual institutions of law. For example, for a long time in England, marital coercion was considered a circumstance excluding the criminal liability of a married woman who committed a crime in the presence and under the compulsion of her husband. At the same time, English lawyers proceeded from the maxim of Roman law (matrimonium cum manu mariti), according to which the wife is completely subject to her husband (pater familias).

The above maxim (matrimonium cum manu mariti) has found its way into other common law norms. Thus, common law rape was defined as sexual penetration by a man into a woman who is not his spouse, by force or otherwise, without the woman's consent. Section 213.1 of the US Model Criminal Code provides that a man who has sexual intercourse with a woman who is not his own

Noah is guilty of rape if he forces her into submission A

through violence or threats. □

Currently, this rule, which is called "the privilege of the spouse"]?

(husband exemption), enshrined in a number of US states. It is believed ^

that, legally, a husband cannot rape his wife, because a woman marries

husband, gives unconditional and unrestricted consent to sexual intercourse with her husband. s

See more: Kenny K. Fundamentals of English Criminal Law. M., 1949. K

See: Stephen J. F. Criminal law of England in a brief outline / per. and foreword

V. Spasovich. SPb., 1865. S. 74. SCIENCES1

An important area of ​​comparative historical knowledge is the study of questions of the reception of law. The asynchrony of historical and legal evolution, a significant lag in the legal development of some countries from others determines the need for active borrowing not only of individual legal institutions, but also of entire codes. A striking example here is the Civil Code of France of 1810 (Napoleon Code), which was received by many countries of the world.

Another aspect is to study the consequences of the "forced legal acculturation" of the imperial colonies, in which legal expansion was carried out at a certain stage of historical development. A clear example here is the significant influence of English law on the legal systems of the United States, Australia and India, French law on the legal systems of Tunisia and Morocco.

Of course, all of the above methods should not exhaust the methodological arsenal of comparative law. Depending on the specific objectives of the study, it is necessary to apply other scientific methods, among which are: methods of comparative legal anthropology12, comparative cultural studies13, comparative religion14, comparative political science15, etc. Only such an approach will allow the most complete and comprehensive analysis of the selected objects of comparison.

See, for example: Rulan N. Legal Anthropology: a textbook for universities // per. from French L. P. Danchenko, A. I. Kovlera, T. M. Pinyalvera, O. E. Zalogina. M. : NORMA, 2000; Dro-byshevsky V. S., Kalinin A. F. Introduction to legal anthropology: Problems of the methodology of law. Part 1. Chita, 2004; Zakharova M.V. Legal custom and modernization in law (on the materials of Francophone Africa and Madagascar): author. dis. ... cand. legal Sciences. M., 2005.

Cotterrell R. Comparative Law and Legal Culture // The Oxford Handbook on Comparative Law. Oxford, 2006. P. 711-713; Varlamova N.V. Legal cultures: an introduction to comparative study // Questions of jurisprudence. 2010. No. 3. S. 128-143; Dutch legal culture / otv. ed. V. V. Boitsova and L. V. Boitsova. M. : Legat, 1998.

Francesco Margiotta Broglio, Mirabelli Cesare, Onida Francesco. Religions and legal systems. Introduction to comparative church law. Moscow: Biblical and Theological Institute of St. Apostle Andrew, 2008.

Apter D.I. Comparative political science yesterday and today. Political Science: New Directions. M., 1999; Endrein Ch. F. Comparative analysis of political systems / transl. from English. M. : INFRA-M., 2000.

<*>Ivannikov I.A. Comparative method in comparative law: history and contemporaneity.

Ivannikov Ivan Andreevich, Professor of the Department of Theory and History of State and Law of the Southern Federal University, Doctor of Law, Doctor of Political Science.

The article is devoted to the history of the application of the comparative method in Russian jurisprudence and its role in modern legal science. The author proceeds from the fact that comparative law is part of the theory of law, and not an independent branch of legal science.

Key words: comparative legal method, legal science, theory of law.

The article concerns the history of application of a comparative method in the Russian legal science and the role thereof in contemporary juridical science. The author proceeds on the basis that comparative law is a part of the theory of law, but is not an independent sector of juridical science.

Key words: comparative legal method, legal science, theory of law.

In the context of globalization, interactions between states and international organizations have become more intense. Given that states belong to different legal families, there is a need to study the law of foreign states, to develop international law, which makes international relations systemic and manageable. The effectiveness of international law depends on how its principles are transformed into the national law of modern states. This can be found out in the process of comparing legal systems, using the comparative method. With its application, a lawyer, whether he is a practitioner or a theorist, begins to better understand and see the prospects for the development of the legal system of his state. The study of comparative law reveals new questions that legal science must answer. How does law arise? How do legal systems emerge and what makes them sustainable? What are the failures of comparative law? What are the new trends in legal comparative studies?

At the same time, it is not yet clear in jurisprudence what is comparative law - a branch of the theory of law or a completely new branch of legal science (A.V. Malko, A.Yu. Salomatin)? Let's try to understand everything by examining the history of the issue.

IN AND. Dahl wrote that to compare means "to compare, apply or liken, apply, estimate, compare, show similarities and differences". The comparative method has been used spontaneously since ancient times. Even Aristotle used this method, deliberately comparing the constitutions of 158 Greek and barbarian cities. The use of the comparative method in Russia has a long history.

The emergence of legal education in Russia was preceded by the emergence of Russian legal science, and "the study of law began with the study of foreign law." For this reason, the comparative method has been widely used.

"The emergence of Russian legal science is associated with the establishment by Peter I on January 28 (February 8), 1724, of the Academy of Sciences, which was originally not only a scientific, but also an educational institution. The study and teaching of law as a science officially began in 1758, when the Academy was a law faculty was created, where professors invited from Germany taught courses: Bekenstein - Roman law, Strube - natural law (i.e. the theory of law) and folk law.However, due to the professors' ignorance of the Russian language (the courses were taught in Latin and German ) this undertaking was not successful. It came to the point that, together with the professors, students from Germany were also sent to the Academy. In 1765, there was one student at the law faculty of the Academy ".

After the founding of Moscow University, and a little later - Kazan, Kharkov, legal education and science began to develop.

A major role in the development of Moscow University and legal education was played by M.V. Lomonosov. Three professors are needed for a law faculty, Lomonosov wrote in 1759, professor of general jurisprudence (natural, folk and Roman law), Russian jurisprudence and professor of politics and history. Lecture announcements for 1766 have been preserved, but there is no evidence that these lectures were actually given. Russian lawyers were forced to know earlier Byzantine, Lithuanian (Lithuanian statutes) and German law.

The first Russian professor of law was S.E. Desnitsky. He was the first (since 1768) to start lecturing in Russian, which caused a sharp protest from foreign professors. The conflict reached the empress, but Catherine II supported Desnitsky. In Russia, S.E. Desnitsky studied with a professor who came from Vienna, Philipp-Heinrich Dilthey (1723 - 1781), who taught the history of law. After graduating from Moscow University, S.E. Desnitsky "was sent to England, where he studied with the famous Adam Smith." In England, Desnitsky received a doctorate in law.

In Russia, the comparative method was actively used in Slavic studies in the first half of the 19th century. in the study of Slavic languages, religions, customs, state and law. The beginning of the comparative study of law was laid by the 4-volume work of the Polish scientist V. Macieevsky "History of Slavic Legislation", which was published in 1832 - 1835. V. Matseevsky wrote that in Europe, in addition to Roman and German law, there are "legislations that are original in their foundation, original in their development ...".

In Europe and in Russia, the comparative method in legal science became popular due to the spread in the 19th century. ideas of the historical school of law. Later, already in the 20th century, the French comparativist R. David noted that "comparative law can be used in research conducted in the field of history, philosophy or general theory of law" . He called C. Montesquieu the progenitor of comparative law.

At the end of XIX - beginning of XX century. among Russian lawyers, the comparative legal method was especially popular.

Initially, comparative law was closely connected with comparative historical research in linguistics, history, and ethnography.

The comparative method was also widely used in Soviet legal science in various branches of law. For example, in criminal law when delimiting the elements of a crime (insults and slander, beatings and hooliganism, theft and robbery, etc.), when interpreting legal norms.

Now more often compare modern legal systems.

The comparative method aims to achieve new knowledge, revealing the patterns of their development at different times.

Subspecies of comparative methods:

• synchronous- comparison of existing legal objects at the same time. Here two or more objects are compared. For example, the Federal Law of the Russian Federation and the law of the subject of the Russian Federation, objects within the national legal system or different legal systems and families;
• diachronic- comparison of objects at different times or in development. With this method, you can compare one object or several objects at different times. For example, the laws of the times of Peter the Great and the period of Stalinism. Or the Criminal Code of the RSFSR of 1960 and the Criminal Code of the Russian Federation of 1996.

In the philosophy of law, "comparative law shows us many ideas about law. It introduces us to societies in which our understanding of law is absent, to societies in which law is closely intertwined with religion and constitutes its innermost part" . According to R. David, "philosophy requires universalism; there is no need to talk about the poverty and narrowness of the philosophy of law, based only on the study of its national law. Comparative law, quite obviously, helps to overcome this kind of barriers" .

Comparative jurisprudence compares the legal systems of states, the influence of international law on national law, the stability of legal systems.

Back in the 1970s. in the study of international law, it was exclusively about international public law, and since the 1990s. already clearly separated international private and international public law.

After the collapse of the USSR with the development in the 1990s. international law began to grow and the use of the comparative method in the study of international law, constitutional law, civil and criminal law.

In the 2000s they began to talk about the system of international public and the system of international private law. Allocate international air law, international maritime law, labor, financial, space, international civil procedure and other branches.

"2. The selection in the 1950s as universal criteria for dividing the norms of law into branches and institutions of such criteria as the subject of legal regulation and the method of legal regulation did not stand the test of time, are formalized and hinder the development of science about the branches of law.

1. It is necessary to single out the object (all social relations regulated by law) and the subject of legal regulation (part of the social relations included in the object regulated by these norms) as criteria for classifying the norms of law into branches and institutions. At the same time, it is impossible to deny the existence of special subjects of law (participants in public relations), methods of legal regulation, principles, sanctions and functions of individual branches of law, sources of law.

Auxiliary criteria for classifying the rules of law in the industry can be called:

• purpose and content of legal regulation;
• qualitative originality and autonomy of a group of legal norms;
• feature of creation of norms of law, sources of law;
• a large amount of legal acts and other forms of law;
• public interest in the creation and development of a new branch of law;
• legal regime;
• the presence, in addition to legal norms and institutions, of special concepts and categories.

1. Due to the fact that our country continues to apply the division of law into public and private, it is advisable to modernize this classification, highlighting the third type of norms and branches of law - humanitarian. It should not be limited to law in time of war. This is mistake. Humanitarian law should include educational, medical and other branches of law.

It seems that national and international law, representing different systems of legal norms in our time, need a new classification that reflects reality.

The specificity of branches of law determines the predominant use of certain methods. If a legal experiment is possible in labor law, then in international law it is excluded. But in international law, the comparative method is often used (on the issue of observance of human rights by the UN with the practice of its application).

The role of international private law in Russia increased after 1992.

At the beginning of the XXI century. comparative method in jurisprudence is of particular importance.

Programs of higher legal education in the world in the late XX - early XXI century. have undergone a significant change. In the course of disputes about legal education, it turned out that the discipline "comparative law" should be included in the number of compulsory disciplines. Back in 1960-1980. comparative law, even in such European countries as the Netherlands and Switzerland, was an optional course, and in Austria it occupied a secondary place. After the collapse of the USSR, many data on foreign countries became available to Russian comparativists, which allowed them to increase the objects of comparison, the number of facts (legal policy, legal ideology, sources of law, etc.). In the context of scientific and technological progress and the emergence of new knowledge, the importance of methodology has increased. Article 13 of the Constitution of the Russian Federation, which enshrined the provision on ideological diversity, allows any ideology, because inhumane ideologies (fascism, Nazism, racism, Wahhabism, etc.) are not named. However, according to N.I. Matuzov, "the official ideology does not at all exclude pluralism of opinions, the struggle of ideas, views, their competition and rivalry. In the political field there should be no place only for illegal doctrines and trends" .

The purpose of comparative law is to improve law, taking into account the peculiarities of the development of society (economic, political, religious, cultural), the emergence of new types of crimes (banking, corruption) associated with new technologies, new social relations.

Comparative jurisprudence is a part of the theory of law, and it is necessary to speak only about the application of the comparative method in jurisprudence.

In the context of globalization, it is necessary to know the experience of improving law in foreign countries. And here one cannot do without the use of the comparative method in jurisprudence. At the same time, the comparison should be carried out objectively and comprehensively.

Literature

1. Malko A.V., Salomatin A.Yu. Comparative Law. M.: Norma, 2008.
2. David R. Comparative Law // Essays on Comparative Law: Collection. Moscow: Progress, 1981.
3. Dal V.I. Explanatory Dictionary of the Living Great Russian Language: In 4 vols. M., 1999. Vol. 4.
4. Matuzov N.I. On the methodological situation in Russian jurisprudence // Modern methods of research in jurisprudence. Saratov, 2007.
5. Tille A.A., Shvekov G.V. Comparative method in legal disciplines. M., 1978.
6. Tomsinov V.A. The role of M.V. Lomonosov in the development of university legal education in Russia // Moscow University Bulletin. Episode 11 2011. N 4.
7. Ivannikov I.A. Theory of Government and Rights. Moscow: Yurlitinform, 2012.

To solve scientific problems in cognitive activity, many methods are used that can be classified in different ways. The most common basis for classifying methods according to the degree of generality. On this basis, four groups of methods are distinguished: philosophical methods, general scientific methods, particular scientific methods, and special methods. One of the most important special-scientific methods in jurisprudence is the comparative or comparative-legal method of cognition of legal phenomena.

Comparative-historical method of scientific knowledge, revealing by comparison the general and particular in the development of certain objects (state, law, society) that are at the same stage level, establishing the general and particular in the upward development as a whole. The comparative-historical method makes it possible to substantiate the distinguishable stages in the evolution of social phenomena and processes. The effectiveness of the application of this method in historical research depends on the ideological and theoretical positions of the researcher and on the level of historiographic practice and historical thinking in general.

In legal science, the comparative method and its various classifications have been used for a long time.

The roots of the comparative legal method of jurisprudence (lat. comparative-comparative; English comparativee jurisprudence) or legal comparative studies (there is no word “comparative studies” in English, there is comparative study- comparative study) are in the comparative legal method, which went through two stages of its development before comparative studies arose as a science. The first stage is the emergence of the comparative legal method, the second stage is the development (improvement and dissemination) of the comparative legal method, the accumulation of the results of the legal analysis of the state and law obtained with its help. The comparative legal method is a comparison of the same order of legal concepts, phenomena, processes and the clarification of similarities and differences between them. Depending on the objects, this method is applied selectively, subject to the obligatory condition of their comparability. It widely uses inferences by analogy, based primarily on similar features of the facts being studied, which makes it possible to transfer features from one phenomenon under study to another. An eclectic combination of elements of various legal systems without deepening in particular their genesis, dynamics of functioning and prospects for evolution is excluded.

The science of general comparative law should be distinguished from the comparative legal method. She uses a wide range of methods:

• comparative legal;
• logical-theoretical;
• systemic;
• structural and functional;
• formal-legal (normative-dogmatic);
• specific historical;
• concrete sociological;
• statistical;
• legal modeling method;
• mathematical and cybernetic;
• electronic computers, etc.

The anthropological approach is decisive for it (Greek. anthropos- man), according to which man as a biosocial individual serves as a "measure of all things", including compared legal systems.

The science of general comparative law has gone through three stages of its immediate development:

• emergence as a legal science, that is, the accumulation and systematization of legal knowledge about the problems of applying the comparative legal method, the study of common, special and individual features of various legal systems of the world;
• formation as an independent branch of legal knowledge, having its own subject, methods, conceptual apparatus, etc.;
• registration of legal comparative studies as a system of knowledge, methods, techniques of comparative legal research into an integral system, i.e., into the theory of legal systems (the theory of comparative studies), the growth of the significance and recognition of the results of these studies.

General comparative law or legal comparative studies is a science that studies the general and specific patterns of the emergence, development and functioning of modern legal systems of the world at the macro and micro levels. Comparative law is an objectively necessary process of cognition of law in a global comparative aspect, i.e. a comparison between different legal systems, their types (families), groups. Its activation and improvement is facilitated by the processes naturally taking place in the world community, namely: the development and formation of the legal systems of young states; expansion and deepening of ties between states and groups of countries; integration of a number of countries into a single whole. The task of comparative law includes the classification of state-legal phenomena inherent in the legal systems of various countries, clarifying their historical sequence, genetic links between them, the degree of borrowing elements (norms, principles, forms of law) of one legal system from another. There are no peoples who would not use law as the antipode of arbitrariness and anarchy, but law does not manifest itself in the same way in different cultures and civilizations.

§ 2. The subject of the comparative legal method of cognition

At first, general comparative legal research developed within the framework of the theory of law as an independent sub-branch of knowledge about legal phenomena. In particular, different legal systems of countries on the world map were compared - this is the so-called theory of legal systems. Now this sub-branch of knowledge, with the help of the comparative legal method, has reached a stage of maturity when it was able to sprout into an independent branch of knowledge, to clarify the subject of study.

Today we can say that the formalization of comparative law as a relatively independent science has been basically completed. Its composition was determined:

• method of science;
• the subject of science is the bases and objects of comparison;
• methodology (including principles) of science;
• the system of science is the corresponding stage of internal organization, its structural elements;
• the ability to interact with individual branches of science, that is, with systems of the same level of organization;
• functions of science;
• scientific terminology and categories of science - conceptual apparatus;
• bibliography;
• history of science - stages of origin, development and modern functioning;
• social purpose.

However, this science has yet to be established as a relatively independent one. It needs to determine its place in domestic jurisprudence. This is required by both scientific (pedagogical) considerations and practical needs.

An indispensable condition for the recognition of comparative law is the presence of a specific approach (method) to the subject of research. Within the framework of a comparative approach to the legal map of the world, the subject of comparative law is being formed. The subject of science, in turn, determines the methods of research and the way they are applied to a given science, i.e., the very methods that, taken together, constitute the approach of science to the object. As our knowledge of the object grows, so do ideas about what is meant by the subject of a particular science (in this case, comparative law).

The subject of general comparative law (the theory of legal systems) is the general and specific patterns of the emergence, development and functioning of the legal systems of the world in their comparative knowledge at the macro and micro levels. Macro-comparative knowledge can begin with at least two legal systems. It provides for a comparative analysis of the general structure of legal systems (historical roots, methodological foundations, constituent elements, the mechanism for unifying legal systems and harmonizing legislation, etc.). Microcomparison is a comparative analysis of the features of individual norms, institutions of substantive and procedural law, legislative techniques, methods of interpreting legislative acts, methods of preparing court decisions, etc. in different legal systems. It follows that the subject of comparative law as an independent science includes the process of comparing individual legal acts, branches of law or institutions, and covers legal systems as a whole. Comparison involves a creative activity in which the relevant elements of the compared legal systems are compared in order to determine the similarities and differences between them.

Thus, the comparative legal method has formed its own subject of comparative law. Its elements include:

• methodological problems of comparison in law (“the theory of the comparative legal method”);
• a comparative study of the main legal systems of our time (at the same time, the issue of classifying these systems is very important);
• traditional "comparative legislation", i.e. comparison of normative sources on specific legal issues, mainly at the level and within the branches of law;
• the so-called functional comparison and some other sociologically oriented types of comparative legal research;
• historical and comparative study of law.

The above list of problems, which is the subject of modern comparative law, the method of comparative legal knowledge, is not exhaustive, it can be supplemented and expanded, individual problems can be formulated somewhat differently. The need to develop, for example, such problems as a comparative study of the legal status of an individual hardly needs special argumentation.

So, the comparative legal method includes methods of comparing and contrasting legal norms, systems of law, legal institutions, legal systems, and even legal families. Distinguish macro comparison– comparison of legal systems and civilizations and microcomparison– comparison of elements of legal systems (law, legal ideology, legal relations

etc.). This method allows you to identify the features of the legal cultures of various societies and peoples, sources of law, legislation, both in the modern period and in different historical eras, etc. The widespread use of the comparative legal method is the basis for the emergence of a new branch of knowledge of comparative law (comparative law). ).

In particular, the comparative legal method of special scientific knowledge is successfully used in comparative law or comparative studies. Comparative law is a branch of the general theory of state and law that studies various legal phenomena, mainly "legal systems" or "legal families" of various countries on the world map.

The need and importance of a typology of diverse and diverse legal systems is caused by quite pressing factors and reasons, especially at the moment when there is an intensive interaction of legal cultures and traditions in the process of globalization. But not only.

Firstly, purely scientific, cognitive and "educational" reasons, because a deep and versatile knowledge of the legal picture of the world in the civilizational aspect requires not only its general consideration, but also its study in separate parts, incorporating similar legal systems. Only a deep and comprehensive study of the latter, and then - in their relationship and interaction with each other, make it possible to give a clear legal picture of the world that adequately reflects the reality. Secondly, this is due to purely practical goals - the unification of the current legislation and the improvement of national legal systems. And, thirdly, the study of various legal systems would be virtually impossible due to lack of time without typology as a method of generalizing large-scale legal material. The results of such activities save lawmakers and researchers involved in the problems of unification from the need for a preliminary analysis and identification of those legal systems that are more or less “prone” to mutual convergence with each other, to deep unification, or only to external harmonization of individual parties.

However, in domestic jurisprudence, legislation or systems of law are more “typified”, but not legal systems in their civilizational understanding. This is due to many reasons, both objective and subjective properties (scientific-doctrinal, law enforcement, etc.). The disadvantage of the traditional approach to legal systems and families is seen in a certain simplification of the issue. It all comes down to listing known, previously established legal communities without a strictly systematic justification of their elemental structure, without relying on a certain ideological basis for their selection. Therefore, it seems possible and necessary to introduce a new moment into the study of this issue, based on the recognition of the concept of the most important driving factors and phenomena in the development of legal systems.

As the main criteria for the typology of legal systems into unified legal communities, they use not only "technical and legal", but also "the level and genesis of legal culture", "legal mentality", "historical and legal traditions", "legal values" that have developed over life of legal systems, "sanctioned and unauthorized legal customs", "style of legal thinking and legal proceedings".

However, these criteria make sense only in the case of a civilizational consideration of legal communities, which imposes more versatile requirements on the researcher. Criteria can be combined in certain combinations. Currently, as a rule, criteria for the classification of legal systems are used, based mainly on ethno-geographical, technical-legal and religious-ethical signs of law. Depending on the chosen criteria for grouping, as a rule, there are different groups of legal families that form legal traditions.

For historical reasons, each ethnic system has its own legal customs, values ​​and traditions, legislation, legal bodies and institutions, formed on the basis of deep mental stereotypes and a common culture. This legal difference and specificity of peoples and societies allows us to talk about their originality and originality, that each of them forms its own legal system, tradition and civilization as a set of various manifestations of law (the legal way of being of a people, objects of the surrounding world and legal ties). However, along with the features, differences, in these legal systems, one can also notice common points, similarities that allow them to be grouped into homogeneous legal communities-arrays.

In the modern world, such legal arrays as national legal systems, legal families and legal civilizations are distinguished. The national legal system is an element of a particular society and reflects its socio-economic, political, cultural characteristics. In relation to groups of legal systems and legal families, national legal systems act as a special, single phenomenon. At present, there are about two hundred national legal systems in the world. The totality of national legal systems with dominant similar features is united by jurists into separate groups - legal families and civilizations.

So, in our opinion, there are several criteria for combining, typifying the legal systems of various societies:

• Common origin or genesis. Legal systems are interconnected by ancestral roots, have common legal and state principles of education, as a rule, these are ethnically similar peoples in origin, originating from the same racial group, who subsequently developed similar legal traditions, values ​​and norms of social regulation and structure.
• Commonality of outlook, spirituality and morality. The unity of legal systems and cultures stems from their primary ideological or ideological baggage, which was developed among peoples throughout their lives. It was knowledge and morality as factors of civilization that formed the corresponding character and stereotype of the social life of peoples close in origin who created legal systems. It was based on common legends, legends, myths, ideas, principles and norms, which contributed to the evolutionary close development of legal cultures and traditions.
• Geographical and geopolitical significance. Legal systems arise as social-territorial organizations in a certain geographical location, landscape and under certain natural, climatic and other conditions. The unity or proximity of territorial spaces, borders affects the characteristics of the life of peoples and societies, the interaction of their cultures and traditions.
• The commonality of sources, forms of consolidation and expression of law. This refers to the way of external objectification and materialization of the norms of law in legal systems. The homogeneity of the sources of law speaks of the general ideas and methods of activating legal possibilities and means of regulation. In other words, the rules of law and the legal institutions that arise on their basis are fixed in one way or another on various material carriers for the purpose of convenience and applicability (in laws, legal precedents, monuments of culture and tradition, in legal consciousness and mentality, decisions of legal bodies and etc.).
• Structural-elemental unity. The legal systems of peoples belonging to the same legal family or tradition have similarities in structural and institutional (infrastructural) construction, as well as in the regulatory system. This can be seen at the macro level, at the level of the presence and specifics of certain legal institutions and institutions of power, as well as at the micro level - the structure of the legal system and the legislative system, the entire legal and regulatory array.
• Generality of principles and norms of legal regulation. In some legal systems, these are the ideas of universal freedom, formal equality, democracy, humanism and mutual responsibility, in others - the ideals of religion, its values ​​and postulates, in the third - these are the ideals of morality and culture, spirituality and nature, etc.
• The unity of the language, terminology, legal categories and concepts, as well as the technique of presenting and systematizing the rules of law. Legally related peoples and societies usually use words, categories and concepts that are identical or similar in their etymological and other meanings, which is explained by the unity of their worldview, since language is a sign-verbal communication system. It is for this reason that legislators and law enforcers belonging to the same legal family, when developing and using legal norms, use the same legal terms and constructions, methods of constructing material, its harmonization and systematization.

Based on the above criteria, the following main legal families of our time are distinguished: the Anglo-Saxon legal family (common law family); Romano-Germanic (continental) legal family; the family of socialist law; Muslim legal family; African legal family.

The socialist legal family in the recent past was the third most common legal family in the world. It included the legal systems of the USSR, as well as the countries that make up the socialist camp in Europe, Asia and Latin America. With a significant outward resemblance to continental law, this legal family had significant features, largely due to its clearly expressed class character. It was formed on the basis of the Marxist-Leninist theory of a new type of law and was closely connected with state policy, serving as an instrument of state power. The collapse of the USSR and the subsequent changes in all spheres of public life led to the rejection of the use of a number of principles of socialist law and the reform of the Russian legal system. Currently, this reform is ongoing, and several options for it are being discussed in scientific circles. One of them is the “return” of the national legal system to the bosom of continental law, its rapprochement with the Romano-Germanic family as the most related.

There is a strong opinion that the domestic legal system has been developing for some time now within the framework of the Western tradition of law, and Russian civilization itself - along with Western European civilization - is filial in relation to Greco-Roman.

However, with all the formal similarity and similarity, in Russia these structures are deeply independent and often even diametrical in their meaning to the social goals and motives that are invested in them in the countries of the Romano-Germanic legal tradition. Even at the moment, as noted by the famous American jurist Kr. Osakwe, Russian law is far from being ready for membership in the Romano-Germanic legal family, and first of all, on the basis of legal ideology, which has not yet been completely cleared of elements of the legal ideology of socialist law. “Modern Russian law continues to adhere to the positivist theory of law, which denies unauthorized custom as a source of law; the tax policy of modern Russian law continues to be punitive in relation to private property; modern Russian law still does not weaken the rigid principle of state power over the land and its subsoil.

One can agree that the “entry” of the domestic legal system into the Romano-Germanic legal family took place in the time of Peter the Great purely politically, but by no means spiritually and culturally-historically. Since then, Russian law has gone through a long and very complex evolution and now exists in the form of a quasi-Roman system, without having accepted its original cultural spirit, religious and ethical traditions, and even political ideology. The Russian legal type is an independent alternative to the Romano-Germanic and Anglo-Saxon legal cultures. It is characterized by a special spiritual meaning of legal means similar in "technique". Meanwhile, to be more truthful, the cultural and religious “entry” of the Slavic legal tradition and the Russian legal system happened earlier, during the times of the largely forcible imposition of Greco-Roman Christianity.

Thus, exactly civilizational the approach is most applicable in the typology of legal systems, since the discrepancy between the formational assessment of the development of the state and law, the “tightness” in the analysis, the excessive pressure of subjective, Western, and then Soviet theorizing on the field of factual data, the growth of which led to a further contradiction between the actual historical research and its theoretical and methodological foundations, in fact, gave rise to the need to develop an ethno-civilizational view as a kind of civilizational approach.

§ 3. The concept of a system. Types and classes of systems. self-organizing systems. Synergetics. System analysis and system approach in legal science. Structuralism and post-structuralism in legal science. Synergetics in jurisprudence

The system method is the study of all phenomena, as well as individual co-phenomena from the standpoint of their existence as integral systems consisting of interacting elements. In legal science, most often the state is considered as a combination of such components as the people, power and territory, and law - as a system of law, consisting of spheres, branches, institutions and norms of law.

The structural-functional method is closely related to the system method, which consists in the knowledge of the functions of the state and law, their constituent elements (functions of the state, functions of law, functions of legal responsibility, etc.).

In this method of scientific knowledge, an important concept is the general philosophical category “system”, which embraces such an integrity that becomes a kind of independent phenomenon, an organism. It should be noted that the very concept of "system" can have different meanings in various sciences. The term "system", first introduced into scientific circulation by a representative of biology (L. von Bertalanffy), meant the integrity of interrelated elements. In sociology, political science, economics and other social sciences, the term "system" is identified with the integral unity of homogeneous phenomena and the role (function) performed by one or another element in maintaining the integrity and stability of the system of which it is a part. In particular, a political system is understood as a set of various political institutions, socio-political communities, forms of interaction and relationships between them.

The systematic method of research makes it possible to reconstruct the categorical ladder of scientific problems from universal positions, which are not only of paramount importance, but also to determine the parameters of such universality and schematicity, bringing science to the promising horizons of strategic thinking. The theory of the legal system that arises on this basis creates a cognitive complex with more powerful (all-encompassing) research capabilities that make it possible to go beyond the established "narrow normative" stereotypes of thinking.

Many scientists have called systems theory (systems method) a bold theoretical idea, a fundamental scientific discovery, a key factor in scientific research that opened the way to new views and principles.

So, Soviet philosophers - researchers of systems theory I. V. Blauberg, V. N. Sagatovsky, E. G. Yudin and others, who made a lot of efforts in developing the system method, began to distinguish three classes of collections of objects that actually exist: unorganized collections ( sometimes referred to as the "summative whole"), inorganic (or simply organized) systems, and organic systems. organic system

I. V. Blauberg and E. G. Yudin defined it as “a self-developing whole, which, in the process of its development, goes through successive stages of complication and differentiation.”

As a result, already in the XIX and XX centuries. in the special scientific literature on philosophy, and later on in the social sciences - the philosophy of law, the general theory of law and the sociology of law, the term "system" began to be actively used, which makes it possible to explain the phenomenon from the position of elemental interaction. The systemic method of cognition of legal reality in its true scientific meaning does not belong to general scientific, but to philosophical methods of cognition. As a matter of fact, the developers of the system method, philosophers in domestic science spoke about this

I. V. Blauberg, B. G. Yudin, V. N. Sadovsky, V. N. Sagatovsky, as well as modern legal theorists who are not alien to philosophical problems and the systematic method of cognition: S. S. Alekseev, N. I. Kartashov, V. N. Sinyukov, V. N. Protasov, and others.

Social scientists represent any social system as a set of ordered social relations between subjects - this is the main formula that has become an axiom in modern social science. The main participants or elements of any such social system are people and their collective formations, which, unfortunately, is ignored by jurists who consider the legal system. It is no coincidence that any social system is associated with the subject, his active social role and activities, which is ensured by the relevant institutions of society and government.

In sociology, in the recent period, it is believed that the whole variety of elements that make up society as an integral system comes down to three groups: firstly, to human individuals and their communities, associations, organizations, secondly, to information, thirdly , to matter, things and energy. At the same time, it must be remembered that things are included in society only through people, their activities and relationships with each other. Between things, just as between people, there are certain kinds of relations, including, as noted

E. Durkheim, “solidarity of things”, or “material solidarity”, which directly connects things with a person, but not between a person. Hence, any social subsystem consists of the simplest, further indivisible elements - subjects, objects (objects) and organizational connections of human activity. As V. G. Afanasiev rightly notes: “... a person is not just an element of the system, but also its creator, its main driving force, its beginning, middle and end. No, there was not, there cannot be a social system without a person, his mind, his goals, his activity. And given the fact that any social system is the result of the activity of not one person, but many people, the central element of any social system is the whole society or some of its active part that creates it.

At present, the methodological significance of the systems approach in modern science and practice has not only not lost its significance, but has also acquired a new impetus, which is associated with the development of such approaches as cybernetic, synergistic, communicative, activity, etc. Recently, these methods have become slowly applied in legal sciences, which opened up new facets of legal reality. According to

V. N. Protasova, the problem of developing a systematic method, which has not yet found its worthy scientific application in jurisprudence, acquires the necessary “scientific” sound, in which it cannot be reduced to the role of a general scientific, but ordinary method: “The riddle of a systematic approach and its theoretical and practical "expansion" is largely due to the fact that it is a reflection and an instrument of those changes that occur in the very process of people's perception of the world around them. The system approach acts here as a means of forming a holistic worldview, in which a person feels an inextricable connection with the whole world around him. Apparently, science is approaching that round of its development, which is similar to the state of knowledge in ancient times, when there was a holistic, undivided body of knowledge about the world, but higher in level, corresponds to the new planetary thinking. This fact is confirmed by the fact that modern scientific consciousness is on the threshold of a new world outlook. Fundamental discoveries in genetics, physics, computer science, medicine, biology, psychology, history, archeology, space research and electronics testify to the development of a new paradigm of being, which should summarize and generalize these achievements into an integral worldview picture.

So the system (gr. systema- made up of parts, connected) - a category denoting an object organized as a whole, where the energy of connections between the elements of the system exceeds the energy of their connections with elements of other systems and defining the ontological core of the system approach. The semantic field of such a concept of a system includes the terms "connection", "element", "whole", "unity", as well as "structure" - a scheme of connections between elements. In theoretical terms, a system is defined based on at least four properties:

The category "system" is one of the universal categories, that is, it is applicable to the characteristics of any objects and phenomena, all objects. To define an object as a system means to single out the relation in which it acts as a system. As a system, an object acts only in relation to the goal that it is able to realize, achieve, and the objective reality that forms the appropriate conditions. In the legal literature, it is rightly noted that the systematic approach is applied when “by purpose” as the main system-forming factor, through the function, it is necessary to come to knowledge of the structure and composition of the system.

In modern conditions, a large amount of material has been accumulated that makes it possible to identify the principles of systemic organization.

From the point of view of the system method (system theory), the analysis of each element is important, but insufficient; the system is not considered as a complex integrity of its constituent elements. To manifest the essence of any legal phenomenon (legal system), it is necessary to show its principles, place and role in the overall system (reality), having analyzed the relationship with other elements of the system, focus on the analysis of the integrative properties of the system, the study of direct and feedback links.

This provision just emphasizes the fact that an object as a system should be considered not as a “thing in itself”, but as an element of a metasystem, then its systemic qualities become important, conditioned and organized by external circumstances and conditions. It is this view that will give concrete meaningful results of the study. In other words, the legal system must be known not only from the point of view of its elemental composition, structure and functions, but in particular, from the point of view of its conditionality by other systems (metasystems), i.e., the conditions of social and natural reality.

Having accepted the systemic method as a starting point, it is appropriate to use the proposed systemic paradigm. At the same time, I would like to reproduce only those general philosophical postulates of a systematic approach in the interpretation of the specialist V. N. Sagatovsky.

The first premise: an emerging, created or perceived system (legal system) is isolated from the environment, i.e. from social and natural reality, and is modeled by elements. If we want to understand the legal system as an organic integrity and a specific relatively autonomous formation, and the "system approach" as a specific method of analysis to it, we must show the relation of the legal system to the environment, both constitutive (distinguishing the system from the environment) and genetic (singling out the system from the environment). To do this, some basic categories need to be clarified.

A system is a finite set of phenomena objectively isolated from the environment in accordance with some basis for selection, or an object whose functioning, necessary and sufficient to achieve its goal, is ensured by a combination of its constituent elements that are in expedient relationships with each other. Environment - everything that is not included in the system, infinity or the surrounding reality. Any system, a holistic phenomenon, is characterized by the presence of elements "dissolved" in social and natural reality.

(that is, it is a qualitative characteristic), in which all its elements are interconnected in a special way.

An element is an internal system-filling initial unit, a functional part of the system, whose own structure is not considered, but only its properties necessary for the construction and operation of the system are taken into account.

Composition - a complete set (complex) of elements of the system, taken outside its structure, that is, just a set of elements without hierarchical connections.

Structure - the relationship between the elements in the system, necessary and sufficient for the system to achieve its goal.

Functions are ways to achieve the goal, based on the expedient properties of the system.

The goal is the result that the system should achieve based on its functioning. The goal may be a certain state of the system or the expected result (product) of its functioning.

The principle is a way of communication between the elements of the system or the initial information basis of its functioning in achieving the goal.

The second premise: in order for the system to be separated from the environment, the latter must contain:

• figuratively, a shadow under which the system is “cut out” from the rest of the environment);
• system-filling factors (environment components that transform into system components);
• system-conditioning factors (conditions for the operation of the system). Using this thesis, we denote each of the types of these factors in relation to reality.

Thus, applying the systematics of this philosophical and theoretical approach, one can not only determine the accompanying factors for the existence of a particular phenomenon, but also determine its structure, main elements and functional orientation.

§ 4. Structuralism and post-structuralism in legal science

Structuralism (F. Saussure, C. Levi-Strauss), as a direction of sociology that emerged at the same time as structural functionalism in France, is based on the structural method, which involves identifying the structure of the object of study as a set of relations that are unchanged during the transformations of this object. The structure is considered not just as a stable “skeleton” of an object, but as a set of rules by which a second, third, etc. can be obtained from a given object by rearranging the elements of its structure. The identification of common structural patterns of a certain set of objects is achieved not by discarding the differences between them, but by deducing the differences as specific variants of a single abstract fundamental principle that turn into each other. Structuralists shift their attention from the elements of an object and their natural properties to the relationships between the elements and the properties that depend on them.

The structural method involves the following operations:

• selection of the primary set of objects (array), in which one can assume the presence of a single structure (K. Levi-Strauss, for example, studied the array of myths of the peoples of the Amazon basin);
• dismemberment of objects into elementary segments (parts), in which typical, repeating relationships connect heterogeneous pairs of elements;
• disclosure of transformation relations between segments, their systematization and construction of an abstract structure by direct synthesis or formal-logical and mathematical modeling;
• derivation from the structure of all theoretically possible consequences (options) and testing them in practice.

Criticism of the main provisions of structuralism in the 1960s. led to the emergence of post-structuralism (M. Foucault). Poststructuralism rejected the idea that the social world has any underlying logic or structure. In their opinion, there is only a superficial, external world, devoid of any deep connections. Therefore, the subject of sociology should be the world as it is experienced in practice, and not hypothetical basic structures.

In legal science, these areas of methodological knowledge are applied to such legal constructs as "system of law", "system of legislation" and "legal system". With regard to the system of law, the following can be noted.

The question of the system of law is a question of the structure of law, of how law is organized from the inside, how it is structured in general, and what is the internal structure (structuralism). In the Soviet period of Russian jurisprudence, two all-Union scientific discussions were devoted to it (in the late 1940s and in the second half of the 1950s). In 1982, the problems of the system of law were discussed by scientists on the pages of the journal "Soviet State and Law".

Immediately, attention should be paid to the difference between the concepts of "system of law" and "legal system". The latter covers the entire legal reality in its systemic, organized form. The legal system includes all legal phenomena necessary for the process of legal regulation. Moreover, law (objective law), which in this case we consider as a system, is included in the legal system as an element along with other elements: legal relations, legal facts, legality, legal awareness, the system of legislation, etc.

Consistency is one of the most important qualities of law, and it is inherent in it objectively. The objectivity of this property means that the system of law cannot be constructed arbitrarily, it is determined by the laws of public life, the regulated social sphere.

The systemic nature of law implies the following characteristics:

• unity, integrity;
• internal dismemberment, differentiation, that is, the presence of elements;
• the presence of a structure - an expedient way of connecting elements;
• the presence of a goal (as a system-forming factor).

Any system is formed by two sides: composition (a set of necessary elements) and structure (an expedient way of connecting these elements). Therefore, the concept of "system of law" covers both the elements of law and its structure. In this regard, from the point of view of the theory of a systematic approach, the wording that has received a certain distribution - "the system and structure of law" is incorrect. The structure of law can, of course, be considered separately, as a special object of study, but not as some kind of addition to the system of law, but as its inner side.

The structure of law, like the structures of other social phenomena, is invisible and intangible, but it can be known through the study of two points:

• properties of elements (they determine the structure, its nature);
• interaction of elements of the system of law. The structure, including the structure of law, manifests itself primarily through the interaction of elements.

In general, a system is an object whose functioning, necessary to achieve its goal, is provided (under certain environmental conditions) by a combination of its constituent elements that are in expedient relationships with each other.

Law is a complex, multi-level (to some extent even "volumetric"), hierarchically built system. The latter means that law is built, as it were, according to the “principle of a nesting doll”: what acts as an element at one level can already be considered as a system (subsystem) at another level, that is, such an entity in which its elements can also be distinguished and its own structure.

Elements in the system of law can be distinguished at least at four levels:

• at the level of the branch of law;
• at the level of the institution of law;
• at the level of the rule of law;
• at the level of elements of the rule of law.

There are also sub-branches of law.

The main division in the system of law is the branch. The features of the branch of law in the literature include the following:

• special subject and method;
• specific industry principles;
• the ability to interact with other industries "on an equal footing", that is, to be on the same level with them;
• the need of society to regulate this social sphere precisely at the level of the industry;
• quantitative sufficiency of legal norms, requiring a transition to a special, sectoral quality;
• the presence of separate, usually codified, legislation.

The subject and method of legal regulation are recognized as the grounds for dividing law into branches. The subject acts as a direct, material criterion and answers the question “what?” governs the branch of law. The method refers to the question "how?" (how industry regulation takes place) and is a legal criterion. The method (a set of specific legal methods of influence) allows you to determine whether the industry has its own subject, since there is a special subject if it requires special, specific techniques for its settlement.

The specificity of the method of the branch of law is established by the following features (they are also called elements of the method):

• the general legal status of subjects of the branch of law (branch legal personality);
• the grounds for the emergence, change and termination of legal relations (the nature of legal facts);
• ways of forming the content of rights and obligations (for example, directly by the rule of law or by agreement of the parties);
• legal measures of influence (sanctions of the rules of law).

Distinguish, first of all, imperative (imperious) and dispositive methods.

S. S. Alekseev defines a branch of law as “an independent, legally unique subdivision of law, consisting of a compact system of interrelated norms distributed among institutions that regulate a specific type of social relations.”

A legal institution is a primary community of legal norms that ensures the holistic regulation of a certain area in the subject of the branch of law. For example, the institution of citizenship in state law, the institution of inheritance in civil law, the institution of necessary defense in criminal law, etc.

A branch of law is an integral set of legal norms that regulates its section of the social sphere by its inherent method and acts as the main element of the legal system.

There are basic branches that form the foundation of the entire system of law. They make up the "set" of industries without which the functioning of any system of law is impossible. These are state law, civil law, administrative law, criminal law and branches of procedural law (civil procedural law and criminal procedural law). On the basis of civil and administrative law, as branches representing the private law and public law principles, the branches of labor law, family, land, financial, etc.

The issue of the nature of complex branches of law is debatable. They are called "non-independent", believing that they do not have their own subject and method, or they consider that they are not branches of law, but branches of legislation.

In our opinion, they are full-fledged legal branches, and their presence in the system of law indicates its transition to a qualitatively new, higher level of development. The reason for their rejection by the majority of jurists is that complex branches are built on fundamentally different principles than the main or so-called "independent" branches. The fact is that, having reached a certain level of development, the system of law moves to the regulation of integral social spheres, regardless of their legal homogeneity: such areas as entrepreneurship, health care, transport, public education, ecology, etc. Law, as it were, passes from functional organization of the social sphere to its territorial organization. If the formation of the main branch comes from the legal beginning - the method, then the complex one - from the social beginning, that is, the subject. The subject of a complex industry is legally heterogeneous, but it is integral, it represents a certain social system. The subject of the main branch is legally homogeneous, but it does not constitute a “continuous”, unified entity: the areas regulated by the main branch are, as it were, “scattered” throughout the entire field of social activity, and they are “collected” into an object only on the basis of method. This is easy to see if we consider the subjects of civil and administrative law as the main branches. Thus, complex industries have “their own” objects.

As for the methods used by complex branches of law, they are not just legally unique, but unique, which is achieved each time through a special combination of legal methods of regulation.

An argument in favor of the stated approach to complex branches of law is the growing tendency in jurisprudence to understand the inseparability of the system of law and the system of legislation.

In the system of law, large blocks of branches can be distinguished - substantive and procedural law, private law and public law.

Thus, the system of law is a single set of normative-legal formations of different levels, expediently connected and interacting with each other on the scale of law as a whole.

§ 5. Legal system and its principles

The idea of ​​using the category system in domestic legal science was one of the first to be proposed in 1975 by D. A. Kerimov, who rightly noted that “holistic system knowledge allows us to present the object under study in its entirety.”

Consideration of the legal system of society is possible from various methodological positions, from the point of view of the activity approach

(V. N. Kartashov, R. V. Shagieva), structural and functional

(G. I. Muromtsev, A. P. Semitko), informational (R. O. Khalfina,

M. M. Rassolov), etc. However, in the current period of development of society and legal science, there is a need to study the domestic legal system in the historical and ethno-civilizational aspect, which allows answering the most urgent and pressing questions. In this regard, we agree with V. N. Sinyukov, who says that we have come to a period when it is possible and necessary to treat the existing facts of domestic legal life from somewhat different positions than we are used to. Not from “purely” formal-legal, sociological, psychological, cybernetic or abstract universal human, but through the prism of the national-historical and cultural-typological nature of the domestic legal world, in the interests of knowing its specific integrity and system, and not class, economic or what -some other disunity.

Systemic and historical methods of cognition adequately meet this task. Based on these methods, it is possible to establish a more accurate meaning of the term "legal system", to determine its place in the system of other scientific concepts, to find out the elemental composition of this social phenomenon, to trace the phases of development that the legal system has gone through. At the same time, we must take into account that jurisprudence has its own logic and methodology, determined by the specifics of its subject, for which consistency is an immanent quality.

The category "legal system" is relatively new in our literature; it came into scientific use only in the 1980s. and was practically not used before, although foreign researchers, especially French and American ones, have been actively using this concept for a long time. This construction itself is almost not represented in curricula and courses on the theory of state and law, and other disciplines. The largest work devoted to modern legal systems is the book of the famous French lawyer R. David, which has gone through three editions. In Soviet times, a two-volume book was published in which a detailed description of the then existing legal system of socialism was given. Historical, cultural and genetic aspects of the Russian legal system were studied by V. N. Sinyukov. These works provide abundant information about this complex and important social phenomenon.

At the moment, modern legal theory seeks to rise to such a level of generalization of knowledge that will allow it to more deeply and comprehensively analyze and evaluate today's legal reality as a holistic phenomenon. This will enable its various subjects, including the legislator, to more effectively resolve emerging contradictions in social life.

In theoretical terms, a system is defined based on at least four properties:

• integrity, consisting of elements;
• the presence of functional links in the system;
• a certain organization of the elements that form the structure;
• the existence of integrative qualities in the system as a whole, which are not possessed by any of its individual elements.

The legal system is considered an organic system, that is, a system of a higher organizational and institutional order. The main belonging of all organic systems are components, parts and elements, exactly what the whole is directly formed from and without which it is impossible. The elements of the legal system, from the point of view of the systemic method, are its subjects, objects and legal ties, i.e. legal relations. Thus, the legal system consists, first of all, of the subjects of legal relations interacting in the legal sphere. Since the main element of any social system is people (associations of people), the central link in its structure is the relations (connections) of people.

The main or central element of the legal system is the subject of the legal system. The subject is the one who purposefully acts, i.e. the carrier of positive (or negative) social activity. The subjects of the legal system can be individuals and legal entities acting as bearers of subjective rights and legal obligations within the framework of specific legal relations. In this case, the recognition of a legal entity as a subject of the legal system is the so-called fiction (recognition). Since it is believed in sociology that organizations, associations and the state cannot act in this role, people still carry out real activities, but on behalf of a legal entity. The recognition of a legal entity as a subject of the legal system of society is a formal legal assumption in order to introduce organization and order into all its communications, especially legal ones.

It should be noted that earlier in legal science, when analyzing the legal system, the subject was not singled out as a central element. The individual occupied a derivative and secondary place in society. In the legal system, it was derived from positive law (a system of social norms) and only occasionally manifested itself as an element of the study of certain issues: legal relations, law enforcement, lawmaking, etc. Currently, the subject comes to the fore and acts as a leading component of the entire legal reality, which is ultimately dictated by the entire course of the complex development of the legal system (including ideas about it), and especially in connection with the changes of the last ten years.

The current Constitution of 1993 proclaims a person, his rights and freedoms to be the highest value, and the recognition, observance and protection of these values ​​is the duty of the state (Article 2). This is a legal statement of the central place of the individual in the Russian legal system, all other subjects are recognized as derivative structures. Legal consciousness, considered in science as an independent element of the legal system, cannot act as such, since it does not exist in isolation from the subject. It is it (legal consciousness) that fills and determines the quality of the subject, which gives him and his activity the status of a leading component.

The next element of the legal system is the object (subject) of the legal system. In legal science, this element was also not singled out as an independent component of the legal system. The object is what the activity of the subject is directed to, everything that is involved in his activity as a means of its implementation. The subject of activity is the object in those specific connections and relationships that are involved in this activity. However, one should distinguish between the object of legal activity and the object of the legal system. The direct object of legal activity is real benefits, the presence of which causes an increased interest of the subjects of the legal system, and gives rise to a keen interest of persons to possess them. Strictly speaking, the legal system allows, within the framework acceptable to all subjects, including the state, to acquire, protect (use) and alienate various benefits.

Subjects of the legal system may own such objects as:

• things (movable, immovable);
• actions (services, work);
• symbols (information, securities).

The Russian Constitution enshrines the right of all subjects to own land and other natural resources (Part 2, Article 9), which is a significant step in expanding the list of objects involved in the legal sphere of relations.

The object of the legal system of society is the external environment on which it acts. Various subsystems of society act as such objects. This point is very important in understanding the purpose and role of the legal system of society. The legal system of society has arisen and exists not for itself. It has an organizational and management impact on the spiritual, political, economic and social systems of society, thereby organizing their functioning.

Sometimes the legal system of society is opposed to such a phenomenon (object) as organized crime, which also has its own systemic organization. Organized crime as a social phenomenon is the opposite of the legal system of society. This is an “anti-social” formation that tries to replace the existence and functioning of the latter and which directly violates the rights and freedoms of all subjects of legal life. The activity of the subjects of organized crime is considered illegal, which follows from the formal elements of such crimes as terrorism.

(Article 205 of the Criminal Code of the Russian Federation), banditry (Article 209 of the Criminal Code of the Russian Federation), organization of a criminal community (criminal organization) (Article 210 of the Criminal Code of the Russian Federation). For example, it is enough just to enter the criminal community in any capacity to be a criminally prosecuted person. In addition, these offenses are at the head of crimes against public safety and public order, which indicates a special negative attitude of the legal system towards these phenomena. At present, the legal system, with its subsystems, is making a lot of efforts to combat this criminal phenomenon, which "affects" the entire social and state organism. And the outcome of this struggle depends on the effective functioning of each subsystem of the legal system, on each of its elements, the legal activities of all subjects. Thus, the legal system is not something hidden and superfluous in society, it protects and regulates the normal way of human behavior.

Legal relations are the last element of the legal system. It should be noted that legal relations in legal science were also not singled out as an element of the legal system. Their selection as such is obvious and indisputable, since in the system description it is these constituent elements that have an objectively expressed nature. Depending on what legal relations are carried out in society, such a legal system will serve the entire society. Legal ties (relationships) are a specific element of the legal system of society, which cannot be seen with the eyes and felt, but without which neither subjects nor objects will ever constitute an integral legal system. This requires the existence of subject-object, object-object and subject-subject relations that unite all types of social elements. Communication between subjects can be random, unstable and temporary. If it is not accidental, constant and stable, then there is a social relation. Thus, the steadily reproducible dependence between people, which is generated by the coincidence of their interests regarding the object (objects) within the framework of legal communication, forms the framework of the legal system of society.

In domestic science, legal relations are characterized as social ties that arise on the basis of the rules of law between subjects regarding the appropriation of any objects, the participants of which have subjective rights and legal obligations. In society, legal relations act as the main link of the legal system. It is in the legal relationship that the legal system finds its real embodiment and implementation. If we imagine the subjects and objects involved in this system, as well as legal relations, then we will get the desired legal system of society in its immediate institutional and functional state. In other words, the legal system is a truly human, specifically universal organization of the whole society, consisting of the subjects acting in it, realizing their interests in a socially acceptable (legal) way of being, the purpose of which is to promote spiritual, political, economic and social relations. Centuries-old, stable, successive, regularly changing legal relations between subjects, generated by interests in objects (objects), within the framework of one legal tradition, create the legal system of society.

However, the description of the legal sphere of society will be incomplete if you do not highlight its inherent features (properties) as an integral organic system.

• The main feature of an integral system is the presence of a systemic, integrative quality that is different from the properties and qualities of its constituent components. A feature of the legal system is that the interaction of its elements (subject, object and legal relationship) can give rise to a new property. Such a property in the legal system is legal power. Power as a social phenomenon is not a quality of individuals, it is a characteristic or property of social relations and is valid only in the interaction or relationship of at least two individuals, before this interaction and outside it, it is exclusively potential, exists only in possibility. Thus, from the standpoint of a systematic approach in the legal system of society, the system property, i.e., uniting all elements into something integral, is legal power.
• The legal system of society as an organic system always strives to achieve its main goal of functioning. This desire of the system for the purpose of its existence, and it exists in the full sense of the word only when it functions, is called expediency. In legal science, several of the most important goals of the legal system are mainly distinguished: law and order, justice, peace, proper behavior, service to man and society.
• Researchers believe that the goal requires means, i.e. actions to achieve it. Thus, in order to satisfy their diverse needs and interests, people enter into specific relationships in a correct and fair way, becoming owners of subjective rights and obligations (private goals). As a way or means to achieve the goal, legal activity is based on the ability of subjects to freely exercise their will in order to satisfy various interests within the framework recognized by society. Being a specific goal of the subjects of legal relations as elements of the legal system, legal activity is nothing more than a means of achieving the general goal of the legal system, i.e. its function. And since, in order to achieve their specific goals, the subjects of legal relations exercise their subjective rights and legal obligations, the very functioning of the legal system cannot be anything other than law enforcement.
• Each organic system constantly experiences perturbing influences, both internal (for example, legal deviations) and external (contradictions between various social subsystems). At the same time, the system lives, functions, develops, sometimes for a very, very long time. Along with the purpose, composition and structure, there are other system-forming, system-preserving factors. These factors are called integrative, regardless of whether they are objective or subjective in nature. In particular, the managerial factor stands out.
• Management, especially in society, is unthinkable without information, those data, information that characterize the state of the system at any given moment. They show what is the global goal of the system and whether it goes to the goal accurately enough, what are the deviations from the given goal and what is their cause. Information is a way of connecting the components of the system with each other, each of the components with the system as a whole, and the system as a whole with the environment. As rightly stated in the scientific literature, the legal system is a social entity that exists relatively independently of its symbolic structure expressed through language; it cannot be identified with the system of legal norms, i.e. legal regulations or regulations that symbolically reproduce the legal system. The legal system is not just a mental image fixed in the structure of legal texts, but, above all, a social reality that includes both objects and people.

Thus, the legal system is a complex of interacting elements (subject, object, legal connection) that generate legal power in society to achieve generally significant goals. This definition systematically characterizes all the elements that make up the legal sphere of life, which form the structure of the legal system. However, this is not enough to understand how one legal system differs from another. And the initial difference between systems lies in the basis around which various elements are concentrated. As such, there is an ideological system of views, that is, certain ideas, beginnings and principles that act as a driving organizing and guiding force. In the legal system of society, there is a certain connection between its elements and principles: these concepts should not be confused, since the principles from which legal rules originate feed and provide all elements of the system with the main ideas about the strategic goal of the functioning of the entire legal system of society.

§ 6. Political system. State mechanism as a system

The political system, according to most political scientists, is an inextricable link between various political phenomena that form a certain integrity, a social organism that has relative independence and functional orientation.

(V. P. Pugachev, A. I. Soloviev).

The emergence of this category is directly related to the development of a systemic analysis of society by T. Parsons. For the first time, the theory of political systems was developed in detail by a major American political scientist

D. Easton in the 50-60s. the last century. Then it was developed in the works of G. Almond, W. Mitchell, K. Deutsch, A. Etzioni, D. Devine and many other scientists.

In modern science, the term "political system" has two interrelated meanings. In the first of them, the political system is an artificially created, theoretical, intellectually isolated construct that makes it possible to identify and describe the system properties of various political phenomena. This category does not reflect the political reality itself, but is a means of systematic analysis of politics and political processes. It is applicable to any relatively integral phenomenon - the state, party, trade union, political association, political culture, political ideology, etc.

The use of the “political system” construction in its first, methodological sense in relation to the entire political sphere implies its consideration as an integral phenomenon, an organism that is in complex interaction with the surrounding social and natural world of phenomena.

The political system includes a number of important political phenomena, such as: political norms and traditions, political ideology, political institutions (parties, state, trade unions, church, etc.), political relations, political regimes, etc. All these phenomena in their functioning or action form the political mechanism of society - the political system.

The political system performs a number of functions in relation to the environment. This is the formation of an ideology, values, goals and objectives of the society's activity program; mobilization of resources to achieve the set goals; integration of all elements of society through the promotion of common goals and values, the use of power, etc.; distribution of national goods; management and coordination of public relations.

The environment, on the other hand, influences the political system through demands and support (approval of politics, political participation, payment of taxes, etc.) or protest (disapproval, struggle, etc.). The political system in the process of conversion "processes" the requirements into solutions and organizes the corresponding actions. The main goal of the functioning of the political system is self-preservation by adapting to the changing conditions of social reality, as well as active influence on it.

In modern science, there are various approaches to the analysis of the functioning of political systems. Their study contributes to an in-depth study of political life and processes, the possibility of using formalization methods in political cognition of reality, mathematical, cybernetic and information-communicative.

The central institution of the political system in all countries is the state. The term “state” itself was first introduced into social science by the Italian philosopher and thinker Nicolo Machiavilli, while earlier the term state was used and was identical to such concepts as: “polity”, “principality”, “kingdom”, “empire”, “republic”, “ despotism", "rule", "land". At present, the term "state" is used in two senses. In a broad sense, the state is understood as a community of people represented and organized by a higher authority and living in a certain territory. It is identical with the country and the politically organized people. In a narrow sense, the state is understood as an organization, a system of bodies that have supreme power in a certain territory and issue legal acts binding on all subjects located on its territory, the observance of which is ensured by measures of state influence.

It should be noted that the definitions of the concept of the state in the Russian legal literature, despite some discrepancies, have not been so different lately.

M. I. Baitin, based on the dual nature of the state - class and universal, offers the following brief general definition of it: "The state is an organization of political power necessary to fulfill both purely class tasks and common affairs arising from the nature of any society" . I agree with this definition.

M. N. Marchenko.

T. N. Radko believes that the state is a sovereign political-territorial organization of public power of certain social forces (classes, groups, the whole people), which has an apparatus of control and coercion, makes its will mandatory and solves both class and social problems.

At the same time, summarizing all the available definitions of the state, one can still argue that the state today is an organization of political power exercised in human society by properly formed bodies, elected and appointed officials who act on the basis of law and within the framework of officially established powers. . The purpose of the state is to conduct the “common affairs” of society, to represent and organize it, to ensure the peace and security of people, to manage social processes, to manage individual areas of life, taking into account the real potential of centralized management and public self-government on the ground. The state can also be viewed as a public-legal union, i.e. as a powerful organization of society, or as an apparatus of public state power. It seems that all these approaches characterize the concept and main features of the state from different angles and at the same time point to the fundamental factors that together form the state as an integral organization - public (state) power and law. It is they who, uniting into one system, require a special organizational form.

However, a rather difficult question remains open: what, in this case, should be understood by the essence of the state itself?

It is known that the essence of any object or phenomenon is the most important, the most essential, the deepest in it; or is it something without which this or that object or phenomenon cannot be distinguished from the totality of others; something without which a given object or phenomenon would lose its "face", respectively, the essence of the state - these are the most important, most essential, deep and other qualities, its signs, features.

Perhaps that is why, in the theory of state and law, some scientists argue that the essence of the state is an integral part of its concept (A. V. Vengerov, V. N. Protasov). In other words, the essence of the state is one of its features. This means that this feature is distinguished from other features of the state by its complexity and ambiguity.

L. A. Morozova objects to this, believing that, of course, the essence of the state is determined by many of its characteristics, including the very concept of the state. However, essence is an independent category that generalizes the key manifestations of state power, including its social purpose and direction of activity.

The essence of the modern state, obviously, must be associated with its definition (or part of the definition) and with the most important, essential, deep features, including class, general social and others. And this conclusion develops the above point of view of A. B. Vengerov, V. N. Protasov and L. A. Morozova. Therefore, we characterize these features of the state.

Many theorists usually refer to these features as the territorial organization of the population, public authority, state sovereignty, the state apparatus as a means of violence, the collection of taxes and fees, and some others.

This important political and legal institution has a number of features common to all its varieties, including:

• the separation of public political power from society, its mismatch with the organization of the entire population, the emergence of a layer of professional managers. This sign distinguishes the state from the tribal community based on the principles of self-government;
• territory delineating the boundaries of the state. Legal acts and powers of the state apply to people living in a certain territory. It itself is organized not by consanguinity or religion, but on the basis of a territorial or ethnic community;
• sovereignty, i.e., supreme power in a certain territory. In any modern society there are many forces, authorities: family, economic, social, party, etc. But the highest power, the decisions of which are binding on all persons located on the territory, organizations and institutions, has only the state. Only he has the right to issue legal acts binding on the entire population;
• monopoly on the legal use of force, physical coercion. The scope of state coercion extends from the restriction of freedom to the physical destruction of a person or even a group of persons. The ability to deprive citizens of the highest values, which are life and freedom, determines the special power and effectiveness of state power. This state implements with the help of a special mechanism - the law enforcement system (police, security service, etc.);
• the right to levy taxes and fees from the population. Taxes are necessary for the maintenance of numerous employees and for the material support of state policy: defense, migration, economic, social, cultural.

The presence of a population or people ensures its existence as a social phenomenon. The state consists of people who form its main substratum, society. The state exists not for itself, but for the population or the people who created it and reproduces it every moment. People living in the territory of the state are its citizens and have citizenship.

The state is the official representative of the whole society as a whole and protects its interests, creates the common good. No organization, except perhaps the totalitarian party-states (USSR), claims to represent and protect all citizens and does not have the necessary resources and means.

The identification of common features has not only scientific, but also practical political and legal significance. The state is a subject of international law and international relations. Only on the basis of possessing the qualities of the state, certain organizations are recognized as subjects of international law and endowed with appropriate rights and obligations.

§ 7. State mechanism as a system

In the science of the theory of state and law, there is still no generally accepted, unified approach to the concept of the mechanism of the state. Some theorists argue that this is the actual apparatus of the state, that is, the system of its organs, with the help of which state functions are carried out

(M. I. Baitin, M. N. Marchenko); others include both the apparatus of the state and state organizations in the mechanism of the state. At the same time, two types of state organizations are distinguished: those that carry out protective functions of the state (armed forces, police, special services, correctional institutions, etc.); realizing economic and socio-cultural functions (special hospitals, special clinics, transport units, sewing, etc.). Still others argue that the mechanism of the state includes, in addition to state bodies and organizations, also such components as: public services and corporations; procedures for making government decisions; resource provision (Yu. A. Tikhomirov).

After analyzing all these points of view, we come to the conclusion that it is necessary to pay attention, first of all, to the analysis of the relationship between the concepts of "mechanism of the state" and "apparatus of the state" and to support the point of view that the mechanism of the state consists of an apparatus that includes state authorities (legislative, executive , judicial, control and supervisory), as well as state organizations (medical, transport, service, etc.) and the so-called material appendages (army, law enforcement agencies, prisons, etc.). Consequently, the most important component of the mechanism of any state is the body of the state as a state entity, consisting of an individual official or a group of officials that exist and act on the basis of law.

The mechanism of the state is not a mechanically assembled, heterogeneous phenomenon, but an interconnected, clear, coordinated system of authorities and other state structures. Otherwise, the state would not be able to successfully carry out the functions facing it, and its activities would consist of inconsistent actions of various bodies, which would give rise to inconsistency and inconsistency both in the very mechanism of the state and in the life of all its citizens.

Speaking about the stability and stability of the mechanism of the state in the world, we can also highlight its other significant features:

• the mechanism of the state is brought to life by the need to carry out specific functions that inevitably require appropriate state-legal influence, which, in fact, is the mechanism of the state, i.e., the emergence of certain bodies, organizations, institutions in the state is explained;
• the mechanism of the state is always based on uniform principles of organization and activity, which, as a rule, are established and enshrined in laws and other acts or are formed historically;
• the mechanism of the state has a complex multi-level structure, which is explained by the need to solve various social, economic and legal tasks facing the state (protecting its own territory, ensuring the rights and freedoms of citizens, economic cooperation with other states, fighting crime, solving environmental problems, etc. .). In addition, there are objective requirements for the legitimate and effective functioning of the mechanism of the state, emanating from the source of power - the people;
• The mechanism of any state is characterized by the presence of the necessary financial resources, material structures, without which it cannot work normally. The peculiarity lies in the fact that they are not independent elements of an imperious, managerial nature, but act as providing factors that allow the main elements of the state mechanism to successfully carry out their functions. Such, for example, are various material objects and structures: buildings, structures, funds, some institutions (warehouses, bases, transport, communications, etc.);
• the mechanism of the state presupposes the presence of a human factor in it; the presence of people who are specially involved in the implementation of managerial functions, carrying out lawmaking, executing legal norms, protecting them from violations, etc.

It should be noted that ensuring the effective functioning of the mechanism of the state also necessarily requires that it be built and operate on the basis of certain principles that are objective. Among such principles in the theory of the state are the following:

• obligatory real representation in the entire system of state bodies and institutions of the interests of the relevant citizens. This is possible only in the case of an effective functioning of a democratic electoral system, strict observance of economic, political and other rights and freedoms of citizens;
• transparency and publicity of the activities of all state bodies, citizens' access to relevant information (excluding that which is legally classified as classified) of all interested parties. The content of this principle includes the right of everyone to receive information affecting his rights and legitimate interests, and in a broader sense - the formation of public opinion about the activities of the entire mechanism of the state;
• legality, meaning the obligatory observance of laws in the activities of all links of the mechanism of the state, both in mutual relations and with the population of the country or organizations expressing its interests;
• competence and professionalism of all employees of state bodies, guaranteeing a high level of solution of the most important issues of public life. Compliance with this principle is possible only if the state apparatus is formed from knowledgeable, educated persons in the field of management and law;
• separation of powers provides for the independence of bodies belonging to different branches of power, their ability to provide a mechanism of checks and balances against each other in order to prevent excessive strengthening and elevation of any one branch of power over others, to prevent anyone from seizing power or appropriating power, the establishment of a dictatorship.

The modern theory of the state identifies and explores three main models for building the state apparatus:

• a centralized-segmental model, in which only central bodies operating on the scale of the whole society (president, parliament, government), as well as their local representatives, are considered state authorities. Local elected bodies are considered in this system as local self-government bodies and have a special, own sphere of activity. Such a model is characteristic of modern democratic states;
• monocephalic model, in which the entire system of organs of the state is one. At the head of this system is a person or body that has full power and gives it to lower bodies. This system of state bodies is hierarchical, personified and pyramidal in its construction. Local authorities are considered here not as bodies of local self-government, but as bodies of the state. The monocephalic model of the mechanism of the state is characteristic of anti-democratic regimes;
• monotheocratic model, in which there is the autocracy of the head of state, supported by religious dogmas and attitudes for the long-term preservation of tribal orders. The head of state is also the highest spiritual person. There is no separation of powers and no parliament. This model is typical for states that have declared Islam the state religion (Iran, Saudi Arabia, Qatar).

Integration (lat. integratio- connection, unification of separate parts into a new larger system) - a general term denoting a continuous process of increasing interdependence between countries of the same region.