The theory of state and law is one of the fundamental legal disciplines, the subject of which is the general laws of various legal systems, as well as the emergence, formation and development of forms of government. An equally important element of this science is the study of the features and methods of functioning of state and legal institutions. This definition determines the structure of the theory of state and law as a science.
Structure
The construction of this science is based on the existence of two large blocks. Each of them is subdivided into smaller elements, and the main ones are: the theory of the state and the theory of law.
These blocks are complementary, they reveal common patterns and problems (for example, the origin and evolution of state and legal norms, the methodology for studying them).
When analyzing the essential elements of the theory of law, it is necessary to take into account the specific content of the knowledge gained. From this point of view, the following elements can be distinguished in it:
- philosophy of law, which, according to some researchers (S. S. Alekseev, V. S. Nersesyants) is the study and understanding of the very essence of law, its compliance with the main philosophical categories and concepts;
- sociology of law, that is, its applicability in real life. This element includes problems of the effectiveness of legal norms, their boundaries, as well as the study of the causes of offenses in various societies;
- positive theory of law dealing with the creation and implementation of legal norms, their interpretation and mechanisms of action.
Versions of the origin of the state
At different stages of its development, mankind tried to comprehend how certain legal norms guiding their lives arose. Of no less interest to thinkers was the question of the origin of the state system in which they live. Using modern concepts and ideas, philosophers of antiquity, the Middle Ages and modern times formulated a number of theories of the origin of the state and law.
Philosophy of Thomism
The famous Christian thinker Thomas Aquinas, who gave his name to the philosophical school of Thomism, developed a theological theory based on the works of Aristotle and St. Augustine. Its essence lies in the fact that the state was created by people by the will of God. This does not exclude the possibility that power may be seized by villains and tyrants, examples of which can be found in Holy Scripture, but in this case God deprives the despot of his support, andhis inevitable fall awaits him. This point of view was not accidentally formed in the XIII century - the era of centralization in Western Europe. The theory of Thomas Aquinas gave the state authority, combining high spiritual ideals with the practice of exercising power.
Organic theories
Several centuries later, with the development of philosophy, a body of organic theories of the origin of the state and law appeared, based on the idea that any phenomenon can be likened to a living organism. Just as the heart and brain perform more important functions than other organs, so sovereigns with their advisers have a higher status than peasants and merchants. A more perfect organism has the right and opportunity to enslave and even destroy weak formations, just as the strongest states conquer the weakest.
The state as violence
The concept of the forced origin of the state grew out of organic theories. The nobility, possessing sufficient resources, subjugated the poor fellow tribesmen, and then fell upon the neighboring tribes. It followed from this that the state appeared not as a result of the evolution of internal forms of organization, but by virtue of conquest, subjugation and coercion. But this theory was almost immediately rejected, because, considering only political factors, it completely ignored socio-economic ones.
Marxist approach
This shortcoming was eliminated by Karl Marx andFriedrich Engels. They reduced all types and forms of conflicts in both ancient and modern societies to the theory of class struggle. Its basis is the development of productive forces and production relations, while the political sphere of society's life is a corresponding superstructure. The fact of the subjugation of weak tribesmen, and behind them weak tribes or state formations, from the point of view of Marxism, is determined by the struggle of the oppressed and the oppressed for the means of production.
Modern science does not recognize the supremacy of any particular theory, using an integrated approach: the most significant achievements are taken from the concepts of each philosophical school. It seems that the state systems of antiquity were indeed built on oppression, and the existence of slave societies in Egypt or Greece is not in doubt. But at the same time, shortcomings of theories are also taken into account, such as the exaggeration of the role of socio-economic relations characteristic of Marxism while ignoring the non-material sphere of life. Despite the abundance of opinions and views, the question of the origin of state-legal institutions is one of the problems of the theory of state and law.
Theory methodology
Each scientific concept has its own methodology of analysis, allowing you to acquire new knowledge and deepen existing ones. The theory of state and law is no exception in this respect. Since this scientific discipline is engaged in the study of general state-legal patterns in dynamics and statics, the fin althe result of its analysis is the allocation of the conceptual apparatus of legal science, such as: law (as well as its sources and branches), state institution, legality, mechanism of legal regulation, and so on. The methods used for this by the theory of state and law can be divided into general, general scientific, private scientific and private law.
Global Methods
General methods are developed by philosophical science and express common categories for all areas of knowledge. The most significant techniques in this group are metaphysics and dialectics. If the first is characterized by an approach to the state and law, as to eternal and unchanging categories, connected with each other to a small extent, then dialectics proceeds from their movement and change, contradictions, both internal and with other phenomena of the social sphere of society.
General scientific methods
General scientific methods, first of all, include analysis (that is, the selection of the constituent elements of a large phenomenon or process and their subsequent study) and synthesis (combining the constituent parts and considering them together). At different stages of the study, systematic and functional approaches can be used, and to verify the information they receive, the method of social experiment.
Private scientific methods
The existence of private scientific methods is due to the development of the theory of state and law in connection with other sciences. Of particular importance is the sociological method, the essence of which is the accumulation through questioning or observation of specific information about behavior.state-legal entities, their functioning and evaluation by society. Sociological information is processed using statistical, cybernetic and mathematical methods. This makes it possible to determine further directions of research, identify contradictions between theory and practice, substantiate, depending on the situation, possible ways of further development or amortization of the consequences of a proven theory.
Private law methods
Private law methods are directly legal procedures. These, for example, include the formal-legal method. It allows you to understand the existing system of legal norms, determine the boundaries of its interpretation and methods of application. The essence of the comparative legal method is to study the similarities and differences that exist in different societies at different stages of their development, legal systems in order to identify the possibilities of applying elements of alien legislative norms in this society.
Functions of the theory of state and law
The existence of any branch of scientific knowledge involves the use of its achievements by society. This allows us to talk about the specific functions of the theory of state and law, among which the most significant are:
- explanation of the basic patterns in the state-legal life of society (explanatory function);
- predicting options for the development of state-legal norms (prognostic function);
- deepening existing knowledge about the state and law, as well as acquiring new ones(heuristic function);
- formation of the conceptual apparatus of other sciences, in particular legal sciences (methodological function);
- development of new ideas in order to positively transform existing forms of government and legal systems (ideological function);
- positive impact of theoretical developments on the political practice of the state (political function).
Rule of Law
Searching for the most optimal form of political and legal organization of society is one of the most important tasks of the theory of state and law. The rule of law at the moment seems to be the main achievement of scientific thought in this regard, which is confirmed by the obvious practical benefits from the implementation of its ideas:
- Power must be limited by inalienable human rights and freedoms.
- Unconditional rule of law in all areas of society.
- Recorded in the Constitution, the division of powers into three branches: legislative, executive and judicial.
- Existence of mutual responsibility of the state and the citizen.
- Compliance of the legislative base of a particular state with the principles of international law.
Meaning of the theory
So, as follows from the very subject of the theory of state and law, this science, unlike other legal disciplines, is focused on studying the existing systems of legislative norms in the most abstract form. Obtained by the methods of this disciplineknowledge forms the basis of legal codes, forms an idea of the functioning of laws, outlines ways for the further development of society. This and much more allows us to speak with confidence about the central position of the theory of state and law in the general system of legal knowledge and, moreover, play a unifying role in it due to its relationship with other humanities.
