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Файл:История и методология юридической науки = History and Methodology of Legal Studies. Учебное пособие для магистрантов
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knowledge. Constructing conceptual and categorical framework. Setting aims and tasks of the research. Defining object and subject of the
research. Proving problem areas of the research. Theoretical, regulative
and empirical base of the research. Defining the methodology of the
research. Choosing optimal research methods. Combining research
methods in framework of the research. Postulating scientific hypotheses, its proving and verifying. Resources of the research. Approbation
of the research. Proving scientific novelty of the research. Checking
correctness of author’s conception. Foot-notes and references in scien-
tific work as demonstration of the researcher’s cultural level.
REQUIREMENTS ON THE COURSE COMPLETION
During the attestation are taken into account: 1) attendance at the
lectures; 2) classwork (skill of discussing scientific problems, ability to
articulate thoughts, analyze and generalize the information, generate
new and original ideas); 3) completion of four tasks (essay, report,
presentation and research of topic of the thesis). While carrying out
them students demonstrate knowledge of history and methodology of
science and skills of legal research; 4) pass of the final test.
Criteria of students’ results of mastering the course
«History and methodology of legal studies»
After completing the course a student must:
1) distinguish law as a normative regulative system of the society and
legal studies as a system of knowledge of law and a social institute;
2) have an idea of nature and essence of law and historically formed
types of understanding of law;
3) know tendencies of legal studies development in general context of
law, society and state development; have an idea of modern status of
science in Russia and the world;
4) know modern scientific approaches and research methods used in
jurisprudence, be able to identify them;
5) know and be able to use legal research methods;
6) master primary skills of organizing and doing legal researches.
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COURSE TASKS
Task 1. Essay
Essay topics (for topics 1, 2)
1. Legal studies as a knowledge system.
2. Legal studies as a social institute.
3. Correlation between law and legal studies.
4. Role of legal studies in the modern society.
5. Problems of the Russian legal studies.
Text size – 3 p., script type – Times New Roman, script size – 14,
line interval – 1,5.
Task 2. Report
Model report topics (for topics 3-5)
1. Role and significance of legal studies in social development.
2. When and how did legal studies come to being?
3. Roman jurisprudence.
4. Legal studies in Medieval Europe.
5. Doctrinal jurisprudence.
6. Dogmatic jurisprudence.
7. Practical jurisprudence.
8. When and how did legal studies come to being in Russia?
9. Legal studies in the Soviet period.
10. Modern Russian legal studies: problems and perspectives.
11. Foreign and Russian legal studies: possibilities of cooperation.
12. History of a branch of law (depends on student’s choice).
Text size – 10 p., script type – Times New Roman, script size – 14,
line interval – 1,5.
Task 3. Presentation
Model topics of presentations (for topics 6, 7)
1. Dialectic approach in a legal studies.
2. Sociological approach in a legal studies.
3. Anthropological approach in a legal studies.
4. Sociocultural approach in a legal studies.
5. System approach in a legal studies.
6. Mathematical methods in legal studies.
7. Sociological methods in a legal studies.
8. Method of legal modelling.
9. Legal hermeneutics.
10. Synergetic approach in legal studies.
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Attendance (lectures, seminars). Total – 36 points
Essay – 6 points
Report – 10 points
Presentation of research methods – 18 points
Research of topic of the thesis – 20 points
Final test – 10 points
TOTAL: 100 points
11. Legal source study.
12. Synchronic and diachronic comparative legal studies.
13. Form and content in law.
14. Aims and motivations in researches.
Size of presentation – 10-15 slides.
Task 4. Research of topic of the thesis
1. Name of the topic. Proving topic actuality.
2. Proving the object and the subject of the study.
3. Setting the aim and tasks of the study.
4. Scientific approaches and methods that should be used during the
research.
5. Scientific hypotheses supposed to be proved in the research.
Text size – 7-8 p., script type – Times New Roman, script size – 14, line
interval – 1,5.
SYSTEM OF GRADES FOR THE COURSE
While students are mastering the course special attention is paid to:
quality of student’s presentation about scientific approach (or study
method) dent, his/her ability to describe convincingly matter of this approach (method), show possibilities of its use in legal studies (task 3);
quality of student’s work upon chosen (specific) topic of legal study
(preferably related to the topic of his/her thesis), where he/she demonstrates knowledge of methodology of legal studies gained during studying
the course; setting of the aims and goals of the study; definition of the object and subject of the study; definition of theoretical, regulative and empirical basis of the study; suggestion of scientific hypotheses etc. (task 4);
results of passing the final attestation when a student shows
knowledge and understanding of the course, mastering of general categories and terms of legal studies.
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Legal science as a knowledge
system of law
Law as a normative regulative
system of the society
Cognitive work
Knowledge system
Social institute
TOPIC 1. LAW AND LEGAL STUDIES
Time – 2 hours
Seminar plan
1. Subject and system of the course «History and methodology of legal
studies».
2. Law as a regulative system of the society, its connection with legal
studies.
3. Legal studies as a knowledge system of law and social institute.
4. Methodology of legal studies», and its correlation with Theory of
State and Law, History of State and Law, Philosophy of Law, Histo-
ry of Political and Legal Doctrines.
5. Knowledge and conceptions about legal studies. Skills of legal re-
search, its interconnection.
Topic brief information
Legal studies methodology mastering
Law has different forms and modes of expression. It reflects in conceptions created by the scientists, enregistered by official power, en-
forced by legal practice. It lives in people’s minds and senses. Law is
doctrines, dogmas and rules, human rights and freedoms, legal traditions and customs, stated wishes and legal order, legal consciousness,
legal relations and practice.
How do law and legal studies correlate?
Legal studies are:
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Philosophic-
Worldview
Metaphysics
Dialectics
General
scientific
Method of
modelling
System method
Germeneutics
Synergetics
Private
scientific
Peculiar to
separate areas
of knowledge
Peculiar to
legal studies
How should one understand a term «methodology»?
Method (Greek.) – manner, way.
Methodology – a theoretical underpinning of methods of cognizing
reality used in the science.
Methodology – a theory turned to research practice.
Methodology of legal studies is a set of approaches principles, rules,
norms of activity used for cognizing legal processes and phenomena.
Is methodology an independent science?
According to significant Soviet and Russian legal scientist
G.A. Kerimov, methodology is not an independent science and exists to
provide any legal research. He considered methodology as a general
tool of cognizing infinite objects of science and synthesized mean of
such cognition. In the same time he emphasized ability of methodology
to adapt to specificity of researched objects. Керимов Д. А. Методоло-
гия права: Предмет, функции, проблемы философии права. 6-е изд.
М., 2011. С. 85.
Every area of scientific knowledge has its own methodology and s
set of methods and approaches used by the latter. In the same time all
methodologies are based on philosophy.
Scientific methods and approaches of cognizing law
76
Legal studies
Jurisprudence
Legal research
G.A. Kerimov defined several structural levels of methodology:
Dialectic-worldview, that determines general directions and basic
principles of cognition (high level);
General scientific (interdisciplinary), used in cognizing particular
group of homogenous objects (middle level);
Private scientific, used in cognizing specificity of a separate object;
Transitional from cognitive-theoretical to practical-transforming activity that uncovers general ways and forms of implementing results of
research into practice. Керимов Д. А. Методология права: Предмет,
функции, проблемы философии права. 6-е изд. М., 2011. С. 86.
Evolution of law and legal studies
Evolution of the society can be described partially as rise and deve-
lopment of legal forms and institutes and scientific conceptions of
them.
One must understand correctly how legal studies developed in the
general context of evolution of the society and scientific knowledge.
Could these categories be considered as identical?
Problems of the Russian legal studies
Three stages of development of the Russian society caused appear-
ance of three legal systems – Imperial, Soviet and post-Soviet. They are
connected to each other but in the same time institutionally different
because of determining legal, social and state forms.
Mastering variety of approaches to law understanding (natural-legal,
legalistic, sociological, integrative);
Necessity to go beyond the Soviet etatistic conceptions of law;
Using achievements of other sciences in jurisprudence (interdisci-
plinary approaches);
Algorithmization of undertaking legal researches.
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TOPIC 2. LAW AS AN OBJECT OF RESEARCH
Time – 2 hours
Seminar plan
1. Nature of law. Essential attributes of law. Value-based attributes
of law.
2. Legal reality. Objective one and subjective one within law. Existent
and due things in law.
3. Functions of legal studies: ontological, gnosiological, heuristic,
prognostic and etc.
4. Variety of approaches to studying the law. Typology of legal under-
standing.
5. Legal and sociological positivism.
6. Interests in society and law. Public and private interests.
7. Law as a factor of harmonization of interests in the society.
Topic brief information
Where do we take information about law from?
Law is a phenomenon of civilization and culture.
Law is a normative regulative system of the society.
Law is human rights.
Law is art of goodness and justice.
Law reflects in doctrines developed by scientists.
Law is enregistered by the state.
Law is supported by the society in form of customs and traditions.
Law is enforced by legal practice.
Law «lives» in consciousness of a person (on rational level) and its
feelings (on emotional level).
Complexity and multidimensionality of law prevent to create its
universal definition that is able to reflect its complex and elusive nature. Legal scientists state that variety of definitions of law from manuals and monographs reflect only separate sides of this complex
phenomenon.
Both beginners and experienced investigators should use one of definitions suggested by significant scientists or should rather create their
own one that answers to their conception of this phenomena, aims and
tasks of the research, modern approaches to law and tendencies of development of legal studies.
78
LAW
•Law is a
normative
regulative system
of the society
•Law is a set of
sources
originated from
the society
SOCIETY
•Humans, their
communities
(public
corpotations),
social institutes
that are able to
create law
•Communicative
system
STATE
• State-organized
society
•State as the
mightiest public
corporation
•Law- and other
rulemaking
powers of state
bodies
Objectness -
attributability to objective area
Objectivity -
accordance with researched object
Systemacity -
connection between knowledge
volume elements
Justification -
presence of evidences and
arguments
Verifiability -
chackability of obtained result
E.G.:
Brief definition
Law is a normative regulative system of the society.
Extensive definition
Law is a normative regulative system supported and developed by the
society in the framework of legal culture in form of traditions, customs,
rules of communities (international, local, confessional, professional,
partial and etc.), enregistered by state and enforced by legal practice
fulfilling criteria of justice and human rights.
Each science is a particular way of reproducing and organizing
knowledge of subjects that it studies using its own methods of cognition.
Legal studies are a particular way of reproducing and organizing
knowledge of law.
Scientific knowledge criteria
79
Functions of legal studies
Gnosiological, i.e. cognitive function (gnoseology – theory of cogni-
tion researching conditions, essence and borders of cognition);
Ontological, defined by ability to gain an insight into phenomenon
(ontology – philosophical teaching existence and nature);
Axiological, an appeal to value-based attributes of law (axiology is
philosophical appeal to the problem of values);
Prognostic, i.e. ability to make predictions.
TOPIC 3. JURIDICAL DOCTRINE, DOGMA, PRACTICE
Time – 2 hours
Seminar plan
1. Doctrinal, dogmatic and practical jurisprudence.
2. Legal doctrines.
3. Legal dogmas. Regulative construction of law.
4. Practical jurisprudence.
5. Legal terms and categories. Legal principles. Legal constructions.
6. Legal studies and law-making process. Legal studies and law en-
forcement.
Topic brief information
Subject area of legal researches
Doctrine:
Conceptual comprehension of law
Dogma:
Normative construction of law
Practice:
Empirical level of law life
Doctrinal jurisprudence
Comprehension of legal reality in juridical doctrines, study of law
life conceptual level.
Conception is subjective, system, logically proved, uncontradictory
construction of scientific facts and making connections between them.
In the same time and place variety of competing conceptions with
different explanations of legal phenomena can coexist.
Paradigm is a system of views and attitudes accepted in the scien-
tific community and setting aims of researches.
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Dogmatic jurisprudence
Dogma (from Latin «dogma») is something predetermined,
constant, and unchangeable.
Dogmatic jurisprudence is a scope of knowledge of detailed
structure of law, its principles, legal relations, subjective rights and duties of legal relations participants, variety of sources of law, rules of
law, methods of generalization and interpretation of law, acts of law
enforcement and etc.
On the «dogmatic level» law plays role of normative construction.
In the same time mastering legal reality on the «dogmatic» level cannot
be identified with mastering normative content of law.
Ref. to: Алексеев С.С. Восхождение в праву.
Поиски и решения. М., 2002. С. 15.
Practical jurisprudence
There are judicial, investigational, prosecutorial, advocatory and
other practices.
Scientific facts about status of legal practice are found by using
empirical research methods of research (sociological, statistic and etc.)
Growing role of judicial practice and its adoption as a legal source is
explained by the fact that the Russian legal system adopts elements of
Anglo-American legal family. Scientific achievements in analyzing
judicial cases and its influence on the society are caused by the necessity of the Russian society to react on different situations.
According to significant Soviet and Russian legal scientist
G.V. Maltsev, there are three components of law that can be defined as
subject areas of legal researches:
1) normative construction of law;
2) social relations;
3) ideology.
Legal concepts and categories
Concept is a scientific reflection of a phenomenon by defining its
specific features or characteristics. Legal concepts are aimed at revealing the most significant qualities and attributes of legal phenomena.
There are official legal concepts reflected in laws and regulations,
and doctrinal legal concepts as products of scientific work existing in
monographs, scientific articles and etc.
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