Добавил:
ivanov666
Опубликованный материал нарушает ваши авторские права? Сообщите нам.
Вуз:
Предмет:
Файл:История и методология юридической науки = History and Methodology of Legal Studies. Учебное пособие для магистрантов
.pdf
Essence
Actions of
researcher
Results
Formation of con-
ception of law in
«human dimen-
sion», through law
understanding, law
sense of a specific
person.
Through different
men’ sense of law
one can ascend to
dogmatic and doctrinal cognition
level.
Analysis and ge-
neralization of examples from specific persons’ «legal
life»;
Research of for-
mation of sense of
law and conceptions of law in «aborigines’ communities»;
Research of judi-
cial cases concerning specific persons;
One ascends to
dogmatic and doctrinal levels in law
through comprehension of law and
rights by specific
person.
Ascending from
the concrete to the
abstract;
Passing into pro-
fundity of human
feelings and thought
of law;
Comprehension of
new facets of law
and legal reality.
Implementing
achievements of
legal studies adequate to personal
legal needs.
Anthropological approach is a research of legal phenomena
and processes in «human dimension»
Interests are real reasons of social activities. Needs, impulses, motivations, goal-settings stay close to them.
It is possible to define the following methodological perspectives of
research of interests in the society and law.
1) Interests as a factor of evolution of legal forms and institutes.
2) Interests as a basis of essential characteristics of law.
3) Interests as a determining element of law-making process.
4) Interests as criteria of regimes of legal regulation.
5) Interests as driving force of law enforcement (interests of parties in
judicial process).
Methodology of interests in law
92
TOPIC 7. METHODS OF LEGAL RESEARCH
Time – 2 hours
Seminar plan
1. Definition of a research method. Classification of research methods.
2. Philosophical methods. Methods of formal logic. Analysis and
synthesis. Induction and deduction.
3. General scientific research methods. System method. Structural-
functional method. Synergetics. Hermeneutics.
4. Special research methods (taken by legal studies from other scienc-
es) Sociological research methods. Statistic research methods.
5. Special juridical research methods. Formal dogmatic methods.
Juridical-technical methods.
6. Comparative legal research methods (synchronic and diachronic
ones).
7. Choosing of optimal research methods. Combining of research
methods in framework of the research.
Topic brief information
Methodology is not only a set or system of methods. It is a philosophic teaching of methods and scientific approaches, its theoretical
substantiation, and the very means of scientific cognition, both general
and private.
Philosophic-worldview methods are a system of cognitive means
created by philosophy. There are methods of formal logic including
analysis and synthesis, induction and deduction. These methods work in
pairs and are used in research as a combination.
General scientific methods are cognitive means used by different
sciences due to their aims and tasks.
System method (Lat. sistema – connection), or approach, has special
place among these cognitive means. The system is a variety of interconnected parts characterized by relatively stable unity. Parts of the
system exist in connection according to specific content basis and make
unity as a result of structural sequence. Main attribute of the system is
integrity of its parts that leads to comprehensive formation.
Systematicity is an attribute of law. While cognizing and enforcing
law a jurist takes as a basis its system character (legal system, system of
law, law sources system, and legislation system).
Synergetic method or approach is connected with system one.
93
Synergetics (from Greek «synergia») – is cooperative, coordinated
action. Only accommodation of interests and efforts of legal interaction
participants can produce a synergetic effect, provide stable and sustainable development. Synergetic approach (or method) is widely used in
studying modern social processes, explains them, and helps to seek
ways of improving social reality.
Private scientific methods are:
a) special-juridical methods;
b) methodological tools of other sciences.
Special-juridical methods are developed and used by legal studies;
they can also be used in other scientific areas.
Here should be mentioned several such methods:
Formal-juridical (juridical-dogmatic) method is basic for legal stud-
ies. It is used to study legal dogmas and specific questions concerning
law-making practice, construction of regulative legal acts, systematization, law interpretation and enforcement, identification of legal relations, and for reading and interpreting legal texts.
Methods of comparative legal research: synchronic comparative
legal method means comparison of domestic and foreign legal institutes
existing on the same sociocultural level; diachronic comparative legal
method is used to compare legal institutes existed in different culturalhistorical periods.
Methodological tools of other sciences are used by legal studies for
more comprehensive study of legal phenomena and processes (mathematical, statistic, sociological, linguistic etc.).
Hermeneutics is a good example of formation of interdisciplinary
connections.
Hermeneutics is art of interpretation. Traditionally it interpreted
texts, e.g., canonical ones. But in the XIX century it began to be used to
interpret legal texts including legislation.
Nowadays hermeneutics determines conditions and rules of comprehending cultural subject and its linguistic form. It means subjects of
hermeneutics can be any aspects of culture including human activities.
Among tasks of the modern scientific knowledge there are construction of interdisciplinary connections between philosophy and other sciences, between different scientific areas (jurisprudence, economics,
sociology, psychology, mathematics, cybernetics etc.). Union of all sciences create scientific picture of the modern world.
94
TOPIC 8. ALGORITHM OF A LEGAL RESEARCH
Time – 2 hours
Seminar plan
1. Organization of a scientific research. Resources of the research.
2. Actuality of a problem.
3. Scientific status of the problem. Deciding the scientific problem by
author’s predecessors on the different stages of development of the
society and scientific knowledge.
4. Aim and tasks of the research.
5. Object and subject of the research.
6. Defining of theoretical, regulative and empirical base of the re-
search.
7. Postulating of scientific hypotheses, it’s proving.
8. Defining of methodology of the research.
9. Approbation of the research.
Topic brief information
Studying course «History and methodology of legal studies» is
aimed at theoretical mastering of scientific legal research approaches
and methods and correct organization of one’s own scientific research
in the chosen field.
Choice of research topic presumes its actuality, i.e. accordance to
needs of the modern social development, latest tendencies of law and
legal studies development.
It is necessary to develop a research program according to the chosen topic, construct goal-setting, and suggest a general hypothesis that
can be proved or denied during the work.
Scientific status of the problem. Decision of a legal problem depends
on the development level of law and legal knowledge on the each specific stage of social development. Each scientist bases on the
knowledge collected by his predecessors.
Ethical principle of science means respect to those researches who
studied the problem before you. This principle must be followed strictly.
Development of each scientific problem has its own history. It is
important to group works and ideas of scientists who worked with it, in
the following order: 1) according to historical periods (periods of social, legal, state development); 2) according to periods of scientific development; 3) according to scientific schools.
95
It is also possible to mark the most significant aspects of the researched problem, consider evolution of
Only systematic construction of gained data about status of the problem enables defining aspects that are developed not completely or at all.
Aim and tasks’ correct setting is one of the most important parts of
the research. Whole future work depends on it.
Object and subject of research
Object of research is a thing at which the research is aimed; it is it
that must be studied with tools of each specific science.
Subject of research is a set of required essential attributes of an object of research.
There are good examples of formulated objects and subjects in already presented theses for candidate or doctoral degree.
Choice of scientific approaches and research methods
Choice of scientific approaches and research methods, its combina-
tion depends on the chosen topic, set aim and tasks. The more and bigger scientific work the more methods should be used.
Scientific approaches and research methods must be defined before
the beginning of work.
Chosen methodological approach should determine the whole re-
search, including goal-setting, and provide consistency and reliability.
Reasonability of use of each method must be taken into account, it
influences on quality of work and the final result.
Level of use of methods depends on level of a scientist himself.
Work with a monograph
1) A scientist searches for a monograph looking to the author’s surname, formula of a problem or a name of work.
2) After finding the monograph one must analyze the part named
«Сontent». It reflects conception, structure and general content of the
work. The analysis helps to understand which parts of this work are
necessary for the research and which ones possibly has no direct connection with it.
3) Basing on the list of sources and literature, and references in the
foot-notes the scientist can find information about sources and literature
that are unknown to him and use them in the future.
Only hard work with sources and scientific literature enriches
knowledge in the researched field.
96
GLOSSARY
Algorithm – an order in which the result is presented based on the
specified input data and rules of study.
Analysis – a method of scientific study which means isolating and
studying the elements of the system topics and relationships
Anthropology of law – a study of law and its historical evolution in
«human dimension».
Argument – a judgment or set of judgments used to substantiate the
acceptability of a scientific proposition.
Category – the most common logical concept expressing the essential
properties of an object or phenomenon.
Civilizational approach – methodological approach meaning world
space is considered as a set of civilizations, i.e. sustainable territorial,
temporal and sociocultural formations with separate ways of development, culture, traditions, and sources of law and particularities of law
enforcement.
Classification of legal families (legal systems) – methodological ap-
proach enables dividing the legal families and/or systems into separate
groups due to some common attributes.
Codification of law – the most perfect form of legal systematization
made by state bodies’ development of new regulatory legal act compiled from deeply and comprehensively reworked acting legislation and
other formal legal sources.
Comparative legal researches – type of activity based on mastering
set of scientific approaches and research methods to gain comparative
knowledge; the accent is made on the tools themselves and also on the
way of gaining knowledge.
Comparative legal research methodology – system of scientific ap-
proaches and research methods enables comparing legal cultures, families, systems and institutes.
Comparative legal studies – area of scientific legal knowledge con-
nected with analysis, generalization and comparison of institutional
legal development experience existing in different legal cultures, systems and families.
Comparativistics – transition of ideas through space and time; it can
serve as an engine of modern social progress determining optimal construction of social institutes on state and international levels.
97
Culture – system of over-biological programs of human activity (in
form of knowledge, directives, rules, skills, ideals, standards, beliefs,
value orientations) providing reproduction and change of social life in
all its main aspects.
Deduction – reasoning from the general to the specific.
Definition – wording of the conceptual content of the object.
Diachronic comparative legal method – comparison of legal institutes
existed in different cultural-historical periods.
Dialectics – the collision of different opinions which allows overcom-
ing the error.
Globalization – process of expansion of one cultural standard all over
the world that pushes out the rest, formed historically within other legal
cultures.
Harmonization of law – coordination of legal regulation principles,
legal massifs, legal relations.
Hermeneutics – the philosophical approach in which the search for
meaning and interpretation of the cultural object and its linguistic reflection, including human actions, is studied.
Hypothesis – an assumption that needs to be tested on the basis of
gaining new scientific data.
Idealization – representation of something in a better shape than it ac-
tually is.
Identity – equivalence.
Induction – reasoning from the particular to the general.
Interests – real reasons of social activities.
Judicial precedent – rule of law created by judicial decision concern-
ing a specific case.
Legal culture is (1) the complex of values, ideas and attitudes to law
and legality, traditionally and widely adopted in particular community.
Another meaning (2) refers to the synonym of legal comparatists’ concept of legal family.
Legal family – set of national legal systems united by communion of
historical way of development, concept and categorical apparatus and
sources of law, legal culture, and law enforcement practice, structure of
leading branches and institutes of law.
98
Legal mentality – element of legal culture that provides structural in-
tegration of social, in particular legal, phenomena – rules of law, legal
doctrine, and juridical practice.
Legal system – scientific category reflecting multidimensional concep-
tion of legal status and development of a specific society and state on
the ideological (legal ideas and views), regulative (rules, principles and
institutes of law), institutional (legal organisations, jurisdictional bodies) and sociological (legal relations) levels. In the international law the
term may mean a group of countries as a specific legal community.
Legitimacy – admission of regulative order because of its identity with
another one of higher hierarchic level.
Metaphysics – finding of the essence of the world, thinking about
things that are not available to sensory experience
Methodology of legal studies is the discipline concentrating on the
systematic analysis of the techniques, methods and principles, which
are adopted (or may be adopted) by scholars in performing legal study.
The term sometimes also refer to a set of methods itself.
Possible – real, but not implemented.
Object of research – phenomenon that should be studied by cognitive
means inherent in this science.
Paradigm – the system of fundamental values, beliefs, concepts, and
principles of study, recognized according to the scientific community.
Reception of law – adoption, reproduction or assimilation of princi-
ples, institutes and main attributes of one national legal system by another (e.g., reception of the Roman law in the Medieval European
states).
Research skills – sustainable ability to reproduce research activities,
use research means in the chosen field of scientific knowledge.
Social statement – typical, relatively sustainable way of reacting on
some object or situation based on knowledge and previous experience.
Sociocultural approach – methodological approach according to
which vector of culture, as over-biological program of social life and
activities, determines history of peoples and states.
Structuralism in legal studies is a methodological approach, based on
revealing of “hidden” interconnections between elements of lawrelevant social systems, and also, as adopting of linguistic methodology, of statutory texts.
99
Structure – specific interconnection, interposition of elements, set of
sustainable connections of the object providing maintenance of its main
attributes in case of external and internal exchanges.
Subject of research – a set of desired properties of the essential object
of the study.
Synchronic comparative legal method – comparison of different legal
institutes existing on the same sociocultural level.
Synergetics – the theory that studies the self-organization of complex
systems.
Synthesis – process of generalizing knowledge of the object of research
based on the results of studying its separate parts.
System – collection of elements constructing some unity that after ad-
justment and cooperation takes general set of attributes that is more
than just a sum of included elements.
System approach means cognition of the object as an entire system
with its own set of internal connections, and studying its cooperation
with the environment.
Traditional (customary) law – legal system where a legal custom (ar-
chaic and verbal, as a rule) is admitted as a leading source of law.
Understanding of law – system of theoretical views and ideas forming
comprehensive conception of essence of law. There are several types of
understanding of law in the modern legal studies (natural legal, legal
positivism, sociological positivism etc.).
Verification – stating of authenticity.
Worldview – system of views, beliefs, principles determining life and
scientific stance of a person.
100
СПИСОК ЛИТЕРАТУРЫ
REFERENCE LIST
а) основная литература / general literature in Russian
Учебники и учебные пособия / manuals and workbooks
Бачило Н.Ф., Исаев И.А. История и философия науки: учеб. пособие.
М., 2012.
Графский В.Г. История политических и правовых учений. М., 2016.
Исаков В.Б. Правовая аналитика: учеб. пособие. М., 2015.
История политических и правовых учений: учебное пособие / под. ред.
И.Л. Честнова. СПб., 2015.
Лазарев В.В. История политических и правовых учений. М., 2015.
Лазарев В.В. Липень С.В. Теория государства и права. Учебник. 5-е
изд. М., 2015.
Лазарев В.В. История и методология юридической науки: университетский курс для магистрантов юридических вузов. М., 2016.
Марченко М.Н. Теория государства и права. М.: Проспект, 2014.
Марченко М.В. Сравнительное правоведение. Учебник. М., 2015.
Мачин И.Ф. История политических и правовых учений. Учебник. М.,
2016.
Общая теория права. Академический курс в трех томах / Отв. ред. М.Н.
Марченко. 4-е издание, перераб. и доп. Т. 1. Государство; Т. 2. Право;
Т. 3 Государство, право, общество. М., 2016.
Неважжай И.Д. История и философия науки: учебное пособие: в 2 ч.
Ч. 1 Общие проблемы философии науки. Саратов, 2008; Ч. 2. Философские проблемы социально-гуманитарных (юридических) наук. Саратов, 2012.
Нерсесянц В.С. История политических и правовых учений. Учебник.
М., 2015.
Нерсесянц В.С. Общая теория права и государства. Учебник. М., 2012.
Поляков А.В., Тимошина Е.В. Общая теория права. СПб., 2015.
Проблемы общей теории jus: учебник для магистрантов юридических
вузов / В.В. Лазарев, С.В. Липень, А.Х. Саидов. М., 2014.
Профессиональные навыки юриста: учебник и практикум / под ред.
М.В. Немытиной. М., 2014.
Рубаник С.А. История политических и правовых учений. Академиче-
ский курс. М., 2014.
101
Соседние файлы в предмете [НЕСОРТИРОВАННОЕ]