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Файл:История и методология юридической науки = History and Methodology of Legal Studies. Учебное пособие для магистрантов
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Legal relations
Law
State
Legal order
Legal culture
Category – the most general logic concept expressing essential attributes of an object or a phenomenon. Each category is a concept, but
not each concept is a category. Only concepts that are the most significant for revealing legal phenomena and processes can claim to be categories of legal studies.
Categories of legal studies
Principles of law. Juridical constructions
Principles of law are basic elements serving as a manual for law-
making and law enforcement and playing role of a fundament for construction of scientific knowledge of law.
Generally accepted principles belong to law in general. E.g. supremacy of law, priority of human rights and freedoms, justice and etc.
Inter-branch principles belong to two and more branches of law
(spheres of legal regulation).
Branch principles belong to a separate branch of law (sphere of legal
regulation).
Juridical constructions are basic doctrinal and dogmatic constructions reflecting and forming legal reality. Examples of these constructions can be state sovereignty, corporate body, public-private partnership. Civil law and allied sciences identify constructions of civil and
other contracts.
82
Legal cultures
Law status
Legal studies
status
Ancient Eastern legal cul-
tures (Egypt,
Mesopotamia,
India, China),
the III th. B.C. –
II c. A.D.
• Verbal form of law
dominates, it exists mostly as legal customs;
• Appearance of the first
written forms of law
(codifications and rulers’
acts);
• Law is bond with other
social regulators.
Theoretical and practical insights do not
exist.
Ancient Greek
legal culture,
the VIII-III c.
B.C.
• Verbal form of law
dominates, surviving legal sources are writings
of simple social cases;
• System construction of
law does not exist;
• Staged separation of
law as an independent
• In the framework
of philosophy conceptions of citizen
rights and contractual
theory of origin of
state develop;
• Plato and Aristotle
develop the first clas-
TOPIC 4. HISTORY OF LEGAL STUDIES
Time – 2 hours
Seminar plan
1. Birth and development of law. Law of the Ancient East and Greece.
2. Roman law. Roman jurisprudence.
3. Jurisprudence in Medieval Europe. Ascending from practical to
dogmatic jurisprudence.
4. Legal studies of the New history. Ascending from dogmatic to doc-
trinal jurisprudence.
5. Legal studies in the Contemporary history.
6. Philosophical conceptions of science development in the ХХth cen-
tury, their influence on the development of jurisprudence. Positiv-
istic and new positivistic methodology.
7. Problems of development of the Russian legal studies.
Topic brief information
Correlation between development of law and legal studies
in historically formed legal cultures
83
social regulator is in process;
• Law along with morali-
ty and religion regulates
social relations;
• Law regulates trade
relations.
sifications of state
form, undertake
comparative research
of legislation of different polises.
Ancient
Roman legal
culture,
the VIII c. B.C.
– V c. A.D.
• Written sources of law
begin to dominate over
verbal ones;
• New sources of law –
acts of state bodies, appear;
• Law is divided into
public and private;
• Gaius’s Institutions;
• Justinian’s codification.
• Birth of practical
jurisprudence;
• Jurists become
special social group
with clearly defined
functions;
• Developing con-
ceptions of law as a
relations’ regulation
system;
• Main attention is
paid to regulation of
questions of civil
law, conceptions of
property and warranties are formed.
Western European legal
culture in the
Middle Ages,
the V – XVI cc.
Before the middle of the
XII c.
• Custom law is com-
pleted by written sources
(Barbarian laws);
After the middle of the
XII c.
• Political disunity of
European states and peoples influences on development of legal and state
institutes.
• Ascending from
practical to dogmatic jurisprudence;
• First universities
play key role in the
development of law
and legal studies;
• Thanks to schools
of glossators and
post glossators the
Roman law is
adapted to the modern social situation;
84
• Reception of the Ro-
man law;
• Development of urban
law is based on development of cities and towns.
• Formation of system of
canonical law;
• Rise of national legal
systems.
• Comprehensive
terminological
basement is created
with use of the Roman concepts;
• Theories of state
and people’s sovereignty are developed.
Western
European
legal culture
in the XVII –
beginning of
the XIX cc.
• Development of
sources of law system;
• Rise of technical-
juridical level of law;
• Beginning of law codi-
fication;
• Formation of national
legal systems;
• Adoption of the first
declarations of human
rights and constitutional
acts. Adoption of Constitution of the USA;
• Birth of international
legal regulation.
• Ascending from
dogmatic to doctrinal
jurisprudence;
• Forming of con-
tractual theory of
origin of state;
• Creation of theory of
separation of powers;
• Appearance of
school of natural law;
• Formation of inter-
national law as a
knowledge area;
• Appearance of sci-
entific methodology;
• Development of
philosophic research
methods.
Western
European
legal culture,
the XIX c.
• Law differentiation and
systematization;
• High level of juridical
technique;
• Adoption of the first Eu-
ropean, Latin American
and Asian constitutions;
• Formation of fields
and schools within
legal studies (historical, sociological);
• Appearance of pos-
itivistic field of study
of state and law;
85
• Formation of legal sys-
tem all over the world
under the influence of the
Western European law.
• Forming of Marx’s
conception of state
and law;
• Classical scientific
rationality.
Legal cultures
of countries
worldwide,
the XX c.
• Institutional develop-
ment of law;
• World War I, its influ-
ence on development of
law and state;
• The Great Russian rev-
olution, Soviet Socialistic
law comes to being;
• World War II, its les-
sons and consequences,
influence of development
of national and international legal systems;
• Crisis of colonialism and
legal development of Asian
and African countries;
• Development of inter-
national law;
• Development of consti-
tutionalism in Europe and
the rest of world;
• Generations of human
rights;
• Increase of legislation
massifs in the national
legal systems.
• Legal studies sep-
arates from other areas of socialhumanitarian
knowledge
• Development of
methodology
• Sciences share
research methods
with each other
• New fields in law
research appear (theory of resurrected
natural law, American sociological rationalism, jurisprudence of interests);
Ascending form classical to postclassical
rationality (T. Kuhn,
K. Popper).
Non-lineal development
of science
Change of scientific
rationalities
Instead of general regularities there are probable tendencies of
Modern conceptions of science
social, legal and state development
86
TOPIC 5. SOURCES OF LAW AND LEGAL STUDIES
Time – 2 hours
Seminar plan
1. Sources of law.
2. Sources of legal studies.
3. Correlation between sources of law and legal studies.
Topic brief information
Conceptions of sources of law are formed within civilizations and
cultures. Modern legal studies need a historical-cultural perspective that
enables, from one side, to cognize legal experience of different countries and peoples and formation of legal families and legal systems, and,
from another, to go to the very roots and sources of law within the legal
culture. It is necessary to see the general and the specific in the institutional legal development of countries and peoples, in sources of law
due to be used in legal families and systems.
Legal family is a group of countries and peoples bond by communion of civilizational and sociocultural development. So, when we talk
about Anglo-American, continental, Muslim law, we mean legal families.
Alternatively to legal families, legal systems reflect state and national identity. It would be correct to use a term «legal system» for law
of separate countries. In this case legal system is law of a separate
country that has communion of historical and cultural development,
first of all, legal sources and institutes functioning in interconnection
and interconditionality and determining social development.
And then, in conditions of globalization and international integration
new interstate constructions are formed. They are characterized by
strong legal connections, unity of legal sources and institutes, and can
be considered as new kind of legal systems. So one can define
international legal systems (UN, EU etc.)
87
Correlation of legal sources and sources of legal studies
Anglo-American
Legal family
Continental
International
legal systems
Legal system
National
legal systems
System of law
Judicial precedents,
statutes
System of
legal sources
Legal sources
Laws,
legal acts
Sources of law
Laws:
Legal acts;
Acts of official interpretation;
Corporate-public acts
Judicial and administrative precedents;
Legal customs;
Legal doctrines;
Sources of religious (canonical) law.
Activity of a lawyer-researcher differs much from work of a lawyerpractitioner. The former defines a source of law needed to be analyzed
(not enforced) – a regulative legal act. Comprehension of research is
provided by work with the source of law as well as sources of legal
studies including official paperwork:
Explanatory notes for a bill (written in the different stages of its de-
velopment);
Records of the meetings of state bodies that discussed the proposed
law;
Materials of judicial and other law enforcement practice concerning
law implementation
88
Scientific activity means not only analysis of a text of law and in-
cluded rules, institutes and etc.
While characterizing the source of law the scientist answers to the following questions :
Where is the law originated from? Who is the author of the bill?
What groups did lobby the passage of the bill?
Interests of what social groups are reflected in the bill?
What amendments took place after the adoption of law?
How did preparation and discussion in the parliament take place?
Special attention shall be paid to the questions: How is this law en-
forced? How does the society (professional, civil) reflect it?
Such a definition of problem actualizes using of historical, sociological and statistic research methods in legal studies.
TOPIC 6. SCIENTIFIC APPROACHES
IN LEGAL STUDIES
Time – 2 hours
Seminar plan
1. Formational and civilizational approaches to the evolution of society
and law.
2. Correlation between law and culture. Law as a phenomenon of civi-
lization and culture. Sociocultural approach in legal studies. Legal
traditions. Translation of legal experience in the society.
3. Legal anthropology. Legal status of a person in the society.
4. Interests in law as research methodology.
Topic brief information
Legal studies methodology is a synthesis of general and special
scientific cognizing means (principles, approaches and methods) used
for cognition of legal phenomena and processes.
Where is the difference between scientific approach and
scientific research method?
• Scientific approach is a set of conceptions, methods and principles.
• Scientific method is a separate mean used in scientific activity.
In the same time such a division is quite relative and depends on
theoretical views and research experience of a lawyer.
89
Constructing research methodology
Choice of methodological approach (approaches) is determined by
modern tendencies, achievements and development level of the respective area of scientific knowledge.
Research is undertaken in the framework of chosen methodological
approach (set of approaches).
Chosen methodological approach should determine the whole
research, including goal-setting, and provide consistency and reliability.
Methodological basis of the research (scientific approaches and
research methods) should be chosen in the very beginning, just after
choosing the topic
General philosophical approaches
Dialectic approach (principles and methods of dialectics) enables to
study phenomena and processes of social reality in their interconnection and interconditionality.
Metaphysic approach is a set of cognitive principles and methods
aimed at comprehension of reality, world and nature, search for essence
of the world, formation of ideas of subjects that are unable for sentient
experience.
Formational approach:
• In the very core there are Marxist’s conceptions of laws of social
development based on economical fundament and types of social relations based on struggle between classes that leads to the change of one
formation by another.
• Social and historical development looks like a regular change of
formations and attributed types of state and law.
Civilizational approach:
• Based on A. Toynbee, S. Huntington and other western scientists’
works devoted to civilizations as types of human communities united
by culture, once come to being, risen and fallen, vanished and still existed.
• Civilization means achievement of some community development
level, so civilization as a stage of development stands against primitive
communities and barbarians.
• A. Toynbee identified twenty one civilizations. All of them are char-
acterized by endurance and length of life.
90
Essence
Actions of
researcher
Results
Impression of
law as a part of
social culture, as a
phenomenon of
social culture;
Culture is a
system of historically developing
over-biological
programmes of
human life and
activities
(Ref. to academi-
cian V.S. Stepin).
Research of different
directives, rules, skills,
ideals, standards of
activity and behavior,
ideas, beliefs, value
orientations of legal
nature;
Research of legal cus-
toms and traditions
kept in humanity
memory and determined allowable limits
of human behavior;
Research of socially
significant legal experience, and systems
that enable to translate
it;
Research of legal in-
novations of «the rib-
bon of human culture».
Extension of
conceptions of law
and legal studies;
Defining possi-
bilities of legal
knowledge and
experience translation to the society;
Defining rea-
sons and roots of
the collective conscious and unconscious.
• Because of succession of social life modern countries and peoples
have different codes of civilizational-cultural development.
• Almost all existing civilizations came to being at least a thousand
years ago. Empires rise and fall, civilizations endure…
Legal culture is over-biological programme of human activity responsible for keeping succession in law, following specific ideals of
legal behavior that meet civilizational-cultural identity. Legal traditions
«live» on the ribbon of culture – some images having importance for
doctrinal jurisprudence, institutional construction of law, functioning of
legal relations system in the society.
Sociocultural approach in legal studies means research of legal
phenomena and processes as a part of wide sociocultural context.
Sociocultural approach
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