The word "norm" has Latin roots. In translation, it means "standard", "rule", "sample". Norms can relate to a wide variety of processes and phenomena: social, natural, technical. The rules indicate the limits within which an object retains its ability to function, its qualities and does not lose its essence. Next, consider the concept of social norm.

Spheres of distribution

Social norms are the rules by which people's actions are regulated. They have a number of features. In particular, social norms of behavior relate directly to people, the relationship between them.

Objectivity

Being a complex structure, the sphere of relations between people needs constant regulation. In accordance with this, social norms are formed. Society itself forms them. They are formed naturally and historically. The system of social norms is created under the pressure of reality. They act as a generalization, fixation of recurring stable connections and acts of interaction. The need to reproduce and consolidate the necessary relationships, in turn, gives rise to the structure of social and normative regulation. At the same time, the influence of the subjective factor should be taken into account. Social norms cannot arise and exist separately from people's consciousness. The need for certain rules must be recognized.

Abstraction

The concept of a social norm is of a general nature. Rules are defined in the abstract, not specific to the individual. They act as standard regulatory mechanisms. Addressees are determined by indicating their characteristics: sanity, age, status, and so on. Abstraction is also expressed in repeated repetition. So, the rule begins to operate every time when a typical case arises, provided as a condition for the operation of the norm, its entry into the regulation process. In this case, it should be noted that the norm always has a certain content. But it is expressed in a typical way, acts as a general behavioral model.

Other signs

Social norms reflect the degree of freedom of the individual. They set the limits of his capacity, activity, ways to meet their needs and interests. One of the most important features of norms is binding. In one situation or another, they have a prescriptive character. Social regulation is procedural. This means that there are certain forms, detailed procedures for the implementation and operation of the rules. Social norms are also characterized by sanctioning. Each regulator has its own mechanisms that ensure its action. A distinctive feature of the norms is their consistency. It can apply to both a set of rules and individual prescriptions.

Classification

Human social norms operate in different relationships. They manifest themselves most clearly in the political, religious, corporate, and cultural spheres. Law occupies a special place in the system of social norms. At the same time, all types of rules and regulations interact quite closely, being realized within the framework of relationships. A comparative assessment of their regulatory features is carried out taking into account their sources, the subject of management, the degree (nature) of the internal organization, the form of existence, methods of influence, means of support, goals, and others. Morality and law in the system of social norms act as the main regulatory mechanisms.

Political prescriptions

In a broad sense, they include social norms of law. However, there is an opinion that the law acts as a political instrument. At the same time, law has a natural basis and reflects the degree of freedom of the individual. In this regard, legal social norms cannot be called an instrument of politics. In this area of ​​regulation, they are classified primarily by their content and scope, as well as by the subject of regulation. In this regard, such norms can be found not only in political documents (manifestos, declarations, and so on), but also in acts of public associations, legal regulations. They can also act as rules of ethics.

In fixing the political norm in legal document it acquires a certain legal status. The formation of such rules is carried out on the basis of ideas, assessments, principles and value orientations. In this case, they act as social norms of the state, being the result of people's awareness of the policy of special interests. First of all, they include economic needs. Political norms regulate the activities and relations of individual politicians, classes, nations, peoples, states and citizens.

customs

These social norms are formed historically, within specific relationships and as a result of repeated repetition. Habits become habits. These rules have the following features:

• They are in the public consciousness, and specifically in social psychology.
• They are the least prescriptive in terms of regulatory abilities.
• Customs penetrate into the sphere of consciousness of the individual sometimes deeper than moral principles.
• Their formation occurs spontaneously, due to the repeated repetition of the same behavioral acts.
• Every custom has a social basis - the cause of occurrence. Subsequently, this feature may be lost. In this case, the custom itself will continue to operate.
• Customs have a local scope.
• The means of securing these norms are public opinion and force of habit.
• Customs do not form a holistic education. This is due to the spontaneity and spontaneity of their appearance, as well as the duration of these processes.

Specificity of customs

First of all, it should be noted the features of education and the operation of customs. In this regard, they often act as a form of other social norms. These include, for example, moral principles, hygiene rules, and so on. They may also have a legal form. For example, it may be a custom of business or legal turnover. At the same time, any norm during its transformation loses its special mechanism of influence and regulatory specificity. Becoming a habit, it begins to rely on the power of habit.

Types of customs

Norms that have moral foundations are called mores. Business practices (usualities) are developed in the process of functioning state institutions, in the course of commercial, economic activity. They operate in conjunction with legal regulations. As a variety, there are also rules governing rituals. The latter are rather complex procedures that are carried out in religious, family, and household areas. Practices of this type are called rituals. The norms governing official, solemn rites are called ceremonials.

Traditions

Tradition is a kind of custom. Its occurrence is associated with the action of subjective factors. In society, people can consciously create certain traditions, as well as contribute to their development. Therefore, the emergence of these norms is not always due to a long historical process. tradition in more based on public opinion. It expresses the desire of people to preserve certain useful behaviors, values, ideas.

Legal regulations

They crowd out objectionable, harmful customs (blood feud, for example). Socially necessary, useful norms can be endowed with legal sanction. In this case, they acquire the status of a legal custom. At the same time, customs mean less than morality for the implementation and formation of legal possibilities.

Corporate rules

They have a certain similarity with legal norms. In particular, to common features should include:

• Fixing in documents - regulations, charters, instructions and so on.
• Consistency.
• Availability of a fixed set of support tools.
• Clearly binding character.
• The need to ensure external control of implementation.

Distinctive features of corporate rules should be considered:

• The expression in them of the interests and will of the members of a certain organization and the extension of the action specifically to them.
• Regulation of relations within the enterprise.
• Sanctioned by specific measures of influence, specific to each organization.

Features of the interaction of prescriptions

Legal norms form the basis for the formation and functioning of various associations. The Constitution deals with this issue in several articles. The law does not allow the creation of organizations harmful to the state and society. It is also forbidden for associations to go beyond the scope of the tasks and goals established in the charter in their activities. Corporate and legal norms interact in determining the legal personality of organizations - the spheres of relations in which an enterprise is allowed to enter.

Technical and legal rules

There are two positions on the issue of considering their status. According to some authors, these rules cannot be classified as social norms, according to others, on the contrary, they can. In these norms, a technical rule acts as a regulatory prescription, and a legal one acts as a sanction. Their content is determined by the laws of technology and nature. The subject of regulation is not human interactions, but the attitude of people to the object. From this position they are recognized as non-social norms. Measures to ensure them are the adverse consequences of violations of technical regulations, natural laws. Nevertheless, a number of authors consider these rules to be a kind of social norms, since:

• The actions of people are the main object of regulation.
• The rules have a social orientation, the importance of which with the development of the technical side of life is growing at a rapid pace.

Today, one of the most relevant technical norms is the one that regulates the relationship between people and the environment.

A person lives in a society and it is impossible for him not to accept the rules of this society. From childhood, we are taught how to act, what to do, what is right and what is not. And when we acted differently than we were taught to act, we, then still small, were punished. It was then that we first encountered social norms. It was in childhood that we began to understand what social norms are. Of course, one should not think that all countries have the same social nomes, one must also take into account the cultural factor. So, in some cultures it is customary to bow at a meeting, and in some it does not play any role.

social norms

Throughout our lives, we meet many people. Previously, back in the primitive world, people were content with a charter that was pleasant in their tribe or community. They were greatly influenced by beliefs, myths, rituals, customs and rituals. Later, the church influenced, and recently, the state began to play a huge role. It should be borne in mind that the diversity of a person’s occupations, his activities in society has led to the separation and great variety of his daily rules of conduct.

The definition of a norm is understood as “worthy of a model”, “rule of imitation”, etc. Its significance lies in the fact that it shows the boundary of a phenomenon, an object, while it retains its significance.

For example, technical norms are created to regulate the world and technology and people, but social ones, in turn, regulate our relations in society (between people and other structures). Social norms are rules. They are important in human relationships, they are designed to take into account our interests and the interests of other participants in these norms (general human norms, norms of social groups).

Signs of social norms

1. Regulation of situations occurring in our lives (public relations). This can be understood as behavior in a public place, attitude towards the older generation, holding rallies, organizing holidays, etc.
2. These rules are always repeated many times. Example: if the situation repeats itself, then these norms regulate it again, they are not one-time social norms of a person.
3. Social norms are not created for one person or group of people, they are created for many participants of the state or even several states at once.
4. Violation of these norms may not be punished by the state, but condemnation from the people always follows.

The concept of social norm and its properties

Social norms are our rules of conduct in society. It is thanks to them that we interact with each other, they indicate the model of our behavior.

• Social norms are general. Norms operate without ceasing, and are designed for the whole society.
• These rules are mandatory. They were created to create order in society and therefore their instrument of pressure is public opinion and its court.

Summing up, we can safely say that public opinion never ceases to act, is protected by the people themselves, affects the whole society. By complying with all of the above, we comply with social values ​​and norms

Types of social norms

As we wrote above, as usual, social norms are called moral norms, our customs, norms of public organizations, but sometimes other types of social norms are also distinguished: cultural norms, aesthetic norms, political norms, organizational norms, religious norms, labor group norms, norms, traditions. Also, this norm may, as well as be enshrined in legislation, and not enshrined. Social values ​​and norms are very important for the cultural heritage of people, as they help to maintain not only the cultural part of the norms for society, but also the moral and many other important norms.

• Social norms of morality. They teach us what is evil in the society of residence, and what is good, what is justice and injustice, what is good and what is bad ... and so on.
• Social norms of customs. These are the rules that have become a habit of the people after their repeated repetition and transmission to their children.
• Corporate rules. Basically, this is the charter of the organization, and the norms of behavior in the organization prescribed in it.
• Religious norms. These norms are not contained in the law of the state, but in sacred books. Such as the Bible, the Koran and others.
• Legal norms. These norms can be established both by the state itself and by the people living in it.
• The norms established for participants in the political process (parties of presidential candidates, political organizations) regulate political relations.
• Tradition norms. These norms developed gradually and historically. They convey the general rules for maintaining family and national foundations.
• economic rules. These norms govern the rules for the production, distribution and consumption of produced material for man.
• business rules. They are a set of rules for business communication(industrial, scientific, educational communication). They regulate the daily attitude of people.
• Etiquette rules. They regulate external behavior person, regardless of their job. Etiquette varies for different countries, as it has evolved historically under the great influence of culture.

We really hope that you have understood what social norms of a person mean, and have realized the importance of observing and maintaining culture in our world.

Instruction

Social norm is a culturally desirable way of behaving. It is based on ideas about good and bad deeds, about good, evil and their consequences - these ideas are enshrined in moral and ethical norm X. The norms of morality, ethics (and partly aesthetic norms) are included in the complex of so-called "ideological norms". The way of behavior will only then be norm effective when it will be executed "automatically". Social automatisms underlying norm behavior, in the language of sociology is called social rituals - rigidly fixed sequences of mandatory actions. Such rituals include, for example, an acquaintance or a ritual of a student addressing a teacher. The totality of social automatisms is called norm mi customs; among them are specific ethnic norms.

Among social norms, a special group is singled out - clearly and unambiguously defined. These are the religious norms set in the texts of sacred books or otherwise sanctioned by the church. These are the corporate norms (norms of organizations) operating within them. And finally, these are the legal norms. The rules of law are generally binding, explicitly established by the state in the legislation and having coercive force, i.e. punishment in the name of the state for their violation.

Any social norm supported through the promotion of behavior appropriate norm m (conformal) and through the prevention and punishment of the inappropriate (deviant, deviant). The problem of deviant and conformal behavior - important problem, which is being studied by psychologists, culturologists, sociologists and criminologists. It is important because, first of all, a change in the ratio of conformity and deviance indicates a change in society's ideas about acceptable and unacceptable behavior, and, consequently, a change in social norms.

Tip 2: What is the social norm for electricity and why is it dangerous for us?

The social norm for electricity has made a lot of noise, although the law has not even been passed yet. Our citizens intuitively understand that despite all attempts to disguise this measure as "saving electricity", they want to make us pay more. But how much more and how else is it dangerous for us?

What is a social norm

What is the social norm of electricity consumption

For example, in the course of an experiment conducted in certain regions of the country, large families began to pay more. They do laundry more often and heat rooms with electric heaters.

The norm will be set in each region separately. For example, when calculating, you can focus on 100 kW, this is the most probable figure.

What to do to reduce electricity consumption

Improve the thermal insulation of the apartment. This will reduce the use of electric heaters.

Cook on a gas stove if possible. For example, I refused the electric kettle. And I don't regret it at all.

Social norms are prescriptions, requirements, wishes and expectations of appropriate (socially approved) behavior. Norms are some ideal samples (templates) that determine what people should say, think, feel and do in specific situations. They differ in scale.
The first type is norms that arise and exist only in small groups (youth get-togethers, groups of friends, families, work teams, sports teams). These are called "group habits".
The second type is the norms that arise and exist in large groups or in society as a whole. They are called "general rules". These are customs, traditions, mores, laws, etiquette, manners. Every social group has its own manners, customs and etiquette. There is secular etiquette, there are manners of behavior of young people. There are national traditions and customs.
It is with the normativity of social behavior that the role functions of a person in society and a group are associated, due to his status in this group. The norm, introduced both into the behavior of the individual and into the mentality of the group and society, dictates the expected behavior, its stereotype, the individual's idea of ​​his proper behavior.
Social norms perform very important functions in society. They:
regulate the general course of socialization;
integrate individuals into groups, and groups into society;
control deviant behavior
serve as models, standards of behavior.
How can this be achieved with the help of norms?
First, norms are also the duties of one person in relation to another or other persons. By forbidding newcomers to communicate with superiors more often than with their comrades, the small group imposes certain obligations on its members and puts them in certain relationship with superiors and colleagues. So norms form a network social relations in a group, society.
Secondly, norms are also expectations: from a person who observes this norm, others expect quite unambiguous behavior. When some pedestrians move on the right side of the street, and those walking towards them on the left, there is an ordered, organized interaction. When a rule is broken, collisions and confusion occur. Even more clearly, the effect of norms is manifested in business. In principle, it is impossible if the partners do not comply with written and unwritten norms, rules, and laws. Therefore, the norms form a system of social interaction, which includes motives, goals, orientation of the subjects of action, the action itself, expectation, evaluation and means.
Norms perform their functions depending on the quality in which they manifest themselves:
as standards of behavior (duties, rules);
as expectations of behavior (the reaction of other people).
The study of the social norm is associated with the analysis of social relations, the activities of individuals. Society is always the result of the interaction of people, expresses the result of the connections and relationships of individuals in their activities.
Social norms are universal. Expressing a certain rule of conduct, the social norm extends its effect not only to a specific person (that is, it has a non-specific character), but to all persons who find themselves in similar situations. For social norms, precisely as for universal rules of behavior, the versatility of application is characteristic of the duration of actions, the uncertainty of the addressee (addressed to everyone who finds himself in a certain capacity, under certain conditions provided for by social norms).
social interaction people is objectively manifested in repeated acts of production, exchange, distribution, diverse public relations and relationships. At the earliest stages of the development of society, simultaneously with the emergence of labor and exchange, there is a need to streamline them. Multiple repetition of certain acts of activity, phenomena and events special feature historical process, revealing the internal regularity of its development.
A social norm is not just an abstract rule of desirable behavior. It also means the real action itself, which is actually established in life, in practice. In this case, actual actions become the rule.
Thus, the social norm is formed in the course of the conscious, goal-setting activity of people, ultimately determined by objective factors that give the norms "objective authority".
Social norms are extremely diverse, since social relations regulated by them are also diverse.
All social norms can be classified depending on how strictly their implementation is observed:
For violation of some norms, a mild punishment follows - disapproval, a smirk, an unfriendly look.
For violation of other norms, harsh sanctions - imprisonment, even the death penalty.
A certain degree of disobedience to norms exists in any society and in any group. Violation of palace etiquette, the ritual of a diplomatic conversation or marriage causes embarrassment, puts a person in a difficult position. But it does not entail harsh punishments.
Legal science subdivides social norms based on criteria such as:
the method of formation;
scope of action
· social orientation.
From this point of view, there are:
Legal regulations: They are enshrined in laws issued by the state, clearly describes the boundaries of behavior and punishment for their violation. They act as the main points of concentration, determine the features of the entire system and the nature of the relationship between its parts. Compliance with legal norms is ensured by the power of the state.
moral standards are formed in the process of approval, development of moral views. Morality is the views, ideas and rules that arise as a direct reflection of the conditions of social life in the minds of people in the form of categories of justice and injustice, good and evil, etc. Morality covers almost all spheres of social relations (including those regulated by law).
Political norms: rules governing relations regarding the exercise of political power, management of society. They manifest themselves both in internal and external relations with other countries and peoples. They consist of rules of conduct regulating relations between states, social groups, parties, in the sphere of political power.
Aesthetic standards: they reinforce the ideas of beauty and ugliness not only in artistic creativity, but also in people's behavior, in production and in everyday life. In a word, these are rules associated with ideas about the beauty of human actions. Negative assessments in this case are combined with moral censure.
Religious norms: e then the rules of behavior of people in the field of religion established by religious organizations or developed in the course of social practice, in terms of content, many of them act as moral norms, and also come into contact with legal norms, so religious norms in the commandments establish “do not kill, do not steal” and legal prohibit such actions.
Corporate regulations: these are the established rules of conduct, expressed in the charters, regulations, decisions of public organizations for the implementation and achievement of the goals of their functioning. They regulate relations within a given organization, the procedure for its activities, the relationships that make up this organization, the procedure for joining and leaving this organization. Corporate norms are provided by the measures provided by this public organization.
Norms of customs, traditions: these are the rules of behavior that develop in a certain social environment, are passed down from generation to generation, act as a natural vital need of people, and as a result of their repeated repetition become habits for them. Customs were once either moral or religious norms, but over time their true meaning has been forgotten. People, following customs, no longer say whether this or that behavior is good or bad, but act in a certain way out of habit.
The above classification is generally accepted and most common.
Summing up the above, we can note that social norms are the consciously volitional activity of people, generally binding rules of behavior for people in their relationships with each other, ultimately determined by the experience of historical development, national characteristics, existing economic and political relations and ensured by the consciousness of the masses, and also, in necessary cases, measures of state coercion, or public influence.

Normative regulation of public relations in modern period It is carried out with the help of a rather complex and diverse set of social norms. Social norms are determined by the level of development of society - and their scope is social relations. Determining the proper or possible behavior of a person, they are created by groups of people.

Hence, social norms These are the rules governing the behavior of people and the activities of the organizations they create in relation to each other. Social norms are characterized by the fact that they are:

Rules for the conduct of people, indicating what their actions should be;

Rules of Conduct general(as opposed to individual rules);

Not only general, but also mandatory rules for the behavior of people in society, which are provided for this by coercive measures of influence.

Thanks to these properties, social norms are able to have a regulatory impact on social relations and the consciousness of their participants.

The variety of types of social norms is explained by the complexity of the system of social relations, as well as the multiplicity of subjects that carry out the normative regulation of social relations.

All social norms operating in modern society are divided according to two main criteria:

The method of their formation (creation);

Method of ensuring (protection, protection).

In accordance with these criteria, the following types of social norms are distinguished:

Law- rules of conduct that are established and protected by the state.

moral standards(morality, ethics) - rules of conduct that are established in society in accordance with people's ideas about good and evil, justice and injustice, duty, honor, dignity and are protected from violation by the power of public opinion or inner conviction.

Norms of customs- these are the rules of behavior that have developed in society as a result of repeated repetition over a historically long period of time and have become a habit of people; they are protected from being violated by the natural inner need of people and by the force of public opinion.

Norms of public organizations(corporate norms) - rules of conduct that are established by the public organizations and are protected by measures of public influence provided for by the charters of these organizations.

Religious norms- the rules of conduct, which are established by various creeds, are used in the performance of religious rites and are protected by measures of public influence provided for by the canons of these religions.

Distinctive features of law as a social regulator are its formal nature, i.e. its external expression in official legal sources (laws, international conventions, court decisions, etc.), systemic or clear interconnection of legal norms, universally binding prescriptions, provision with state coercion in case of encroachment on the norms of law.

The division of social norms is also possible by content. On this basis, economic, political, environmental, labor, family norms, etc. are distinguished. Social norms in their totality are called the rules of human society.

Law and Morality

The most important regulators of human behavior have always been customs, law and morality. As you know, the most ancient rules of human behavior were customs. The custom is closest to instinct, because people perform it without thinking why it is necessary - it's just the way it has been from time immemorial. Custom rallied and streamlined the primitive community of people, but where they did not overcome its domination, the development of society froze at a dead point, because customs stifled creative imagination, the desire for something new, unusual.

The younger sister of custom was another system of rules of conduct - morality. Moral rules arise as spontaneously as customs, but they differ from custom in that they have an ideological basis. A person does not just mechanically repeat what was performed before him from time immemorial, but makes a choice: he must act as morality prescribes to him. What guides a person, justifying his choice? A conscience that gives rise to a sense of duty. The meaning of moral duty is that one person recognizes himself in another, sympathizes with another.

Although morality, like custom, oriented a person towards the observance of collective interests, towards collective actions, it was an important step forward in comparison with custom in the formation of an individual principle in people as natural beings. Morality is a system of principles of a deeply personal relationship of a person to the world from the point of view of due. Morality is, first of all, a life guide, which expresses a person's desire for self-improvement. Its main function is the affirmation of the truly human in man. If the mechanical repetition of customs is still close to instinct, then the conscience, duty, sense of responsibility inherent in morality are absolutely alien to the natural world, they are the fruits of the "second nature" of man - culture.

It is with the culturological development of society that people gradually begin to form their own, individual needs and interests (economic, political, social). And in connection with the protection of the individual, the individual and his personal interests, a third system of rules of conduct arose - law. The formation of this system is closely connected with the emergence of inequality within the community of people that followed the Neolithic revolution (the transition from an appropriating economy to a productive one). Inequality developed in two directions: inequality in prestige, and, consequently, in influence and power, and inequality in property. Naturally, the owners of these values ​​(prestige or property) have a need to protect them from the encroachments of others, as well as the need to streamline new social relations so that everyone “knows his place” in accordance with personal capabilities.

Thus, the right initially arises to express people's claims to certain benefits as a permission realized by an individual in order to satisfy his own needs through a forceful impact on other individuals. But this method of protection was not reliable enough. In addition, using force, you can not so much protect your own as appropriate other people's rights. This led to disorder, threatening the death of society. Therefore, a new organization arose in society, designed to streamline relations between people - the state, and the instrument of the state was the law - an act issued by the state and binding on pain of physical coercion. The law (and other official sources) fixed the rights recognized by society (claims to social benefits). Consequently, law can be characterized as a set of rules of conduct that define the boundaries of freedom and equality of people in the implementation and protection of their interests, which are enshrined by the state in official sources and the implementation of which is ensured by the coercive power of the state.

Currently, legal and moral norms occupy a dominant, dominant position in the regulatory system. This is not least due to the fact that both have the most extensive scope - they potentially cover the entire society. In this regard, the scope of morality and law overlap to a large extent. At the same time, they are independent elements of the regulatory system, the unity, interrelationships and interaction of which deserve special attention.

The unity of legal norms and moral norms is based on the commonality of socio-economic interests, the culture of society, people's commitment to the ideals of freedom and justice. The unity between law and morality is expressed in the fact that:

In the system of social norms, they are the most universal, extending to the whole society;

The norms of morality and law have a single object of regulation - public relations;

Like the rules of law, the norms of morality come from society;

Rules of law and norms of morality have a similar structure;

The norms of law and norms of morality stood out from the fused (syncretic) customs of primitive society in the course of its decomposition.

Law and morality serve common purpose- harmonization of the interests of the individual and society, the development and spiritual elevation of a person, the protection of his rights and freedoms, the maintenance of public order and harmony. Morality and law act as a measure of the individual's personal freedom, set the boundaries of the permitted and possible behavior in the situation regulated by them, and contribute to the balance of interests and needs. They are fundamental general historical values, are part of the content of the culture of the people and society, show the level of social progress of civilization.

However, the norms of law and norms of morality still differ from each other in the following features:

By origin. Moral norms are formed in society on the basis of ideas about good and evil, honor, conscience, justice. They acquire mandatory significance as they are recognized and recognized by the majority of members of society. The rules of law established by the state, after coming into force, immediately become binding on all persons within their scope.

The form of expression. Norms of morality are not fixed in special acts. They are contained in the minds of people, exist and act as a set of unwritten rules in the form of teachings and parables. Recent attempts to impose on society the commandments clearly formulated by higher party authorities in the form of the Moral Code of the builder of communism (“Man is a friend, comrade and brother”) can hardly be regarded as a successful experiment. In turn, legal norms in modern conditions most often receive written expression in official state acts (laws, decrees, decisions, court decisions, etc.), which increases their authority, makes their requirements clear and definite.

According to the mechanism of influence. Law can only regulate the actions of people, i.e. only such actions (or inaction) of them that are perceived and recognized by the acting subject himself as social acts, as manifestations of the subject, which express his attitude towards other people. Legal norms cannot directly interfere with the world of thoughts and feelings. Only the behavior of a person or a team that is expressed outside, in the external physical environment, in the form of body movements, actions, operations, activities performed in objective reality, has legal significance.

“Only insofar as I manifest myself, insofar as I enter into the realm of reality, do I enter into the realm that is subject to the legislator. Apart from my actions, - wrote Marx, - I do not exist for the law at all, I am not at all its object. Therefore, a person cannot be held legally responsible for base feelings and dirty thoughts, if they have not been objectified outside in one or another public form, but morality unequivocally condemns both. Morality makes demands not only on the nobility of actions, but also on the purity of thoughts and feelings. The action of moral norms is carried out through the formation of internal attitudes, motives of behavior, values ​​and aspirations, principles of behavior, and in a certain sense does not imply the presence of some pre-established externally established regulatory mechanisms. As you know, the main internal mechanism of moral self-regulation is conscience, and the informal, external mechanism is customs and traditions as the centuries-old collective wisdom of the people.

By way of protection from violations. The norms of morality and the norms of law in the overwhelming majority of cases are observed voluntarily on the basis of people's natural understanding of the justice of their prescriptions. The implementation of both norms is ensured by internal conviction, as well as by means of public opinion. Society itself, its civic institutions, collectives decide on the forms of response to persons who do not comply with moral prohibitions. At the same time, the moral influence can be no less effective than the legal one, and sometimes even more effective. "Evil tongues are worse than a gun!" exclaimed Molchalin in Griboedov's famous play. Such methods of protection are quite sufficient for moral standards. To ensure legal norms, measures of state coercion are also used. Illegal actions entail the reaction of the state, i.e. special legal responsibility, the procedure for imposing which is strictly regulated by law and is of a procedural nature. A person is punished on behalf of the state. And although in each individual case the interests of individual "private" persons may be directly violated, the state cannot entrust the application of measures of legal responsibility to the offender to these "private" persons. The offender openly opposed his will to the general will embodied by the state in the norms of law, and his condemnation and punishment should be not only personal, but also state in nature. The state, even in the offender, must see “a person, a living particle of society in which the blood of his heart beats, a soldier who must defend the homeland, a member of the community who performs public functions, the head of the family, whose existence is sacred, and, finally, most importantly, a citizen of the state . The state cannot lightly remove one of its members from all these functions, for the state cuts off its living parts from itself every time it makes a criminal out of a citizen.

The consequences of immoral, immoral behavior can also be severe and irreparable. However, the violation of moral norms, in general, does not entail the intervention of state bodies. In moral terms, a person can be an extremely negative person, but he is not subject to legal liability if he does not commit any illegal acts. Responsibility for violation of moral standards is of a different nature and does not have a strictly regulated form and procedure for implementation. Morality has a traditional and rather limited system of sanctions. Punishment is expressed in the fact that the violator is subjected to moral condemnation or even coercion, measures of social and individual influence are applied to him (remark, demand for an apology, termination of friendly and other relationships, etc.). This is a responsibility to the surrounding people, collectives, family and society, and not to the state.

In terms of detail. Moral norms act as the most generalized rules of behavior (be kind, fair, honest, do not envy, etc.). The requirements of morality are categorical and do not know exceptions: “thou shalt not kill”, “thou shalt not lie”. Legal norms are detailed, in comparison with moral norms, rules of conduct. They establish clearly defined legal rights and obligations of participants in public relations. Giving a specific formula of lawful behavior, the right seeks to designate in detail all the options for prohibitions. For example, the commandment “Thou shalt not kill” in the criminal law is represented by a whole register of compositions: simply murder; the murder of a newborn child by a mother; murder committed in a state of passion; a murder committed when the limits of necessary defense were exceeded or the measures necessary to detain a person who committed a crime were exceeded; and even causing death by negligence. In addition, as we see, the law considers it lawful (subject to the conditions established in the law) to cause death in a state of necessary defense, or during the arrest of a criminal.

By scope. Moral norms cover almost all areas of human relations, including the legal sphere. Law affects only the most important areas of public life, regulating only public relations controlled by the state. As already noted, morality is designed to influence the inner world of a person, to form a spiritual personality, while law is not able to invade the sphere of feelings and emotions, into the deep inner world of a person. However, the scope of morality is not unlimited. Most of the legal procedural and procedural aspects (the sequence of stages in the lawmaking process, the procedure for conducting a court session, inspecting the site in case of a traffic accident) are ethically neutral and, therefore, cannot be regulated by morality.

We must not forget that in every country it is officially recognized, according to general rule, one single and unique system of law to which the entire population of this country must obey. Moral requirements do not constitute such a single and unique system. Morality can be differentiated in accordance with the class, national, religious, professional or other division of society: the dominant morality is corporate, the morality of the ruling elite and the ruled. The group "morality" of the especially criminalized and marginalized parts of society more often diverges from legal regulations common to all citizens, of which striking examples can be found in considerable numbers in the life of modern Russian society. However, their replication through the media without due emphasis on the negativity and extreme pathology of such phenomena already leads to the spread of such subcultures of individual groups to the whole society (for example, in the language of everyday communication).

Differences in moral principles and moral attitudes exist not only between certain social groups (you can point to the peculiarities of the professional ethics of doctors, lawyers, teachers, etc.), but also between people of the same social group. Suffice it to recall the individual set of morals of one of the heroes of the novels by L.N. Tolstoy - Vronsky: “Vronsky's life was especially happy because he had a set of rules that undoubtedly determined everything that should and should not be done. These rules undoubtedly determined that the cheater had to be paid, but the tailor did not; that men should not lie, but women can; that you can’t deceive anyone, but you can deceive your husband; that one cannot forgive insults and one can insult, etc.” It is clear that such "individual" legal norms cannot exist.

According to the principle of action. In the legal literature, it has long been noted that the rule of law proceeds from formal equality between those people to whom it applies. Law in this sense is the application of an equal scale to different people. For example, in modern society, the principles of universal and equal suffrage operate, according to which all voters have one vote, although someone is educated, and someone is not very well versed in political issues, and someone is worse, etc. But the law cannot act otherwise, because it protects and expresses the interest of each - in this case - the voter, and the interests of all voters are equal. Morality does not recognize this equality. According to its canons, to whom more is given, more will be required.

The differences between law and morality serve as the basis for their interaction and cooperation. They serve high goals - the ideals of goodness and justice, the achievement of harmony and prosperity, the development of the individual and society, the provision and maintenance of public order. The implementation of legal norms, their implementation is largely determined by the extent to which they comply with moral standards. In order for legal norms to operate effectively, they, at least, must not contradict the moral values ​​of society. In some cases, law helps to rid society of obsolete moral norms. For example, it was through law that the process of overcoming blood feuds, one of the postulates of morality of the past, took place. At the same time, a number of legal norms (in particular, criminal norms) directly fix moral norms in the law, reinforcing them with legal sanctions.

Morality is not only relatively independent in relation to law and numerous external conditions, but in many respects an unchanged phenomenon over significant time periods. It is characterized by a certain constant, which, despite all the changes in the economy, politics, and power structures, retains a certain type of original moral thinking, which is the basis, among other things, for the Russian legal tradition. It is the mentality as a reflection of the deeper layers of moral and legal psychology that allows us to see how an effective model of organization is being formed. social life individual and people within a particular culture and tradition.

In this regard, it cannot be categorically argued that the law is enforced only by coercive methods. After all, the majority of citizens comply with legal norms voluntarily, and not under fear of punishment. Of course, the implementation of the law is a complex process in which methods of persuasion, prevention, education are also used in order to encourage subjects to obey the law. Psychological research has shown that factors such as trust, honesty, truthfulness, and a sense of belonging are much more important than coercion in ensuring compliance with the rules. As G.J. Berman, it is precisely when the law is trusted, and coercive sanctions are not required, that it becomes effective: whoever rules the law does not need to be everywhere with his police apparatus. Today this has been proved by contradiction, by the fact that in our cities that branch of law, the sanctions of which are the most severe, namely, the criminal one, has turned out to be powerless and cannot generate fear where it has failed to create respect by other means. Today, everyone knows that no amount of force that the police can use can stop urban crime. Ultimately, crime is held back by the tradition of law-abidingness, which, in turn, is precisely based on a deep conviction that law is not only an institution of secular politics, but is also related to the highest goal and meaning of our life. Closely adjoining, law and morality, as a rule, support each other in streamlining social relations, positively influencing the individual, in shaping a proper moral and legal culture among citizens, and in preventing a number of crimes. Crimes such as gambling, prostitution or drug addiction generally do not involve a conscious desire to cause harm, but are referred to as "victimless crimes". In this case, it is not enough to abolish the usual criminal sanctions associated with imprisonment or fines for them, thereby freeing up a lot of time and energy of the police, courts and penitentiary authorities. Here it is more expedient to create new legal procedures, both within the framework of the criminal courts themselves and outside them: new public services such as liturgies - for making decisions (as long as the behavior of such persons is antisocial), including the participation of psychologists, social workers, clergy, and also family members, friends, neighbors - before, during and after the hearing. Most offenders are by no means sick people, and we must approach these cases more humanely and creatively, condemning not people, but their behavior and the specific conditions that give rise to this behavior.

So, in the process of exercising their functions, law and morality should help each other in achieving common goals, using their own methods for this. And the challenge is to make this interaction as flexible and deep as possible. This is especially important in those relations where there are lines between the legally punishable and the socially reprehensible, where legal and moral criteria are closely intertwined. Moral and legal criteria are the basic concepts - good, evil, honor, dignity, duty, etc., as well as the principles - justice, humanism, respect, openness, formal equality, etc.

This complex interdependence of law and morality is expressed in the fact that these fundamental principles are nevertheless common, universal for the entire normative and regulatory system of society. However, it is in law that justice, as a formal expression of equality in freedom, characterizes mainly the external commitment to morality, connected with it only through a regulatory form, and not internal content. Approximately the same opinion is shared by V.S. Nersesyants: “... justice is included in the concept of law ... law is by definition fair, and justice is an internal property and quality of law, a legal category and characteristic, not extra-legal ... only law and fair. Indeed, justice is actually fair because it embodies and expresses universally valid correctness, and this, in its rationalized form, means universal legitimacy, i.e. the essence and beginning of law, the meaning of the legal principle of universal equality and freedom. Both in meaning and etymology (iustitia) goes back to law (ius), denotes the presence of a legal principle in the social world and expresses its correctness, imperativeness and necessity.

Law and morality fruitfully "cooperate" in the field of administration of justice, the activities of law enforcement and justice. This can be expressed in various forms: when resolving specific cases, analyzing all kinds of life situations, illegal actions, as well as the personality of the offender. Often the law cannot qualify this or that act as an offense (crime) without appropriate moral criteria (such an act is evil), since otherwise it is impossible to correctly determine the signs and measure of responsibility for such acts as “hooliganism”, “insult”, “ slander”, “humiliation of honor and dignity”, evaluative concepts of “cynicism”, “special cruelty”, “self-interest”, “base motives”, “personal hostility”, “moral harm”, etc., acting as motives and elements of many offenses.

The close interaction of the norms of law and morality does not mean that this process is smooth, smooth and conflict-free. Sharp contradictions, collisions, and discrepancies can quite often arise between them. Moral and legal requirements do not always and not in everything agree, and often directly contradict each other. For example, in Rus', mutual assistance was widely known in catching a criminal at the scene of a crime, a thief in a theft, or an adulterer in the arms of someone else's wife. Punishment followed immediately and did not entail consequences - blood feud, as it was considered as a matter of course (performed according to conscience, according to custom). Back in the Soviet period, polygamy was condemned both by morality and was prosecuted by the Criminal Code (punished by imprisonment). Meanwhile, the modern Criminal Code of the Russian Federation in relation to such acts is simply silent, i.e. completely neutral, and in the moral sphere, this offense refers to a very serious immoral behavior that destroys the family union as the basis of the moral socialization of the individual and the foundations of society.

The reasons for the contradictions between law and morality lie in their specificity, in the fact that they have different methods of regulation, different approaches, criteria in assessing the behavior of subjects. What matters is the inadequacy of their reflection of real public processes, interests of various social strata, groups, classes. The discrepancy between law and morality is caused by the complexity and inconsistency, the imbalance of social life itself, the endless variety of life situations that arise in it, the emergence of new trends in social development, the unequal level of moral and legal development of people's consciousness, the variability of social and natural conditions, etc.

Morality is by its nature more conservative than law, it inevitably lags behind the flow of life, from the trends of the economic, scientific, technical and political development of society, and, accordingly, from the short stories of legislators who seek to reflect them in regulatory legal acts. Morality was formed over the centuries, and the content of legal norms to one degree or another changed with each new political system. And now the law is more flexible, dynamic, more active and more elastic in responding to ongoing changes (problems of sex change, homosexuality, euthanasia and abortion, changing the sex of the fetus in the early stages of pregnancy at the request of parents, etc.). Law, with its indefatigable temperament and youth, novelty and revolutionary character, formality and utilitarianism, as it were, pushes morality in its development to changes corresponding to the current level of development of society.

Conflict situations can also arise between the norms of law and morality, which are negative not only for the individual, but also for the whole society as a whole. Much of what is permitted by law can be prohibited by moral norms, and vice versa, what prohibits law allows morality. Thus, for example, the norms of Russian legislation (the 1992 Law “On the Transplantation of Human Organs and (or) Tissues”) establish the presumption of “an individual's consent to transplantation”. Meanwhile, a number of citizens, due to various moral and religious beliefs, are categorically against their deceased relative being a donor, however, the law requires transplantation to save the lives of other people, if the deceased did not express in the prescribed form his unwillingness to be the object of transplantation. Equally acute is the problem of euthanasia. Some believe that the moral duty of a doctor is the humane cessation of suffering, others that the intervention of other persons in matters of life and death is immoral. There are supporters and opponents of euthanasia both in countries where it is officially allowed (the law allows, but morality condemns), and in countries where it is officially prohibited (the law prohibits, but morality allows).

Also ambiguously evaluated by law and morality, for example, cloning (repetition of the genotype from stem cells) of animals and humans, multiple marriages and divorces by the same person. Meanwhile, it is obvious that another more acute problem arises here - the moral goals and guidelines for science itself, scientific activity and scientific experiment. Can science, moving along the path of progress and evolution, even for the most noble purposes of enlightenment and knowledge of scientific truth, violate moral imperatives?

The consequences of the bombing of Hiroshima and Nagasaki, as well as the creation in 1953 of A.D. Sakharov's hydrogen bomb, capable of destroying all life within a radius of several tens of kilometers, was supposed to sober up humanity and put an end to this issue for all of science. And the point here is not in immoral and unprincipled politicians who can use it for their own selfish interests, but in science itself, which, deifying itself, has broken away (partly through the fault of the state) from society, its moral and spiritual environment, its vital interests . It cannot be outside of moral principles, but, on the contrary, it must observe, affirm and even fight for them together with the active part of society, indicating the directions for a balanced, and not pathological, progress of civilization. And, unfortunately, law, being at the forefront of social change, cannot cope with challenging task containment of spiritual and moral pathologies in all spheres of the life of society, and sometimes it intensifies them.

Thus, the specific gravity, the scope of this or that regulator in different historical epochs either expanded or narrowed. In the current conditions of the crisis state of Russian society and the entire civilization, the contradictions between law and morality have become extremely aggravated. The threshold of moral requirements for the individual and society has sharply decreased. The legalization of many dubious forms of enrichment, the unbridled pursuit of profit and pleasure of undeveloped souls have greatly undermined the moral foundations of society.

Social and spiritual values ​​have changed. The morality of the undeveloped majority of society has become more tolerant and indulgent towards all sorts of dexterity and illegal actions. As a result of the massive criminalization of society, law does not effectively exercise its regulatory and protective functions, sometimes it simply “does not notice” many dangerous antisocial phenomena.

It should be noted that the optimal combination of ethical and legal has always been an intractable problem of all legal systems. And, as experience shows, ideal harmony cannot be achieved here - contradictions inevitably persist, new ones arise, old ones are aggravated. They can be reduced to some extent, weakened and smoothed out, but not completely removed.

Not a single society has reached the heights of morality, since morality is not an absolute constant, but a relative one. This is an endless search for the ideal and harmony, balance and conformity, adequacy and proportionality, justice and expediency, humanism and retribution. This is a movement towards development, improvement and self-improvement, infinity and progress.

Questions and tasks for independent work:

1. 1. Give the concept of a socio-normative system.
2. What is the essence of non-regulation? Describe its types.
3. What are the types of social regulators and list their main features?
4. What is the relationship between law and morality?
5. Show the differences between law and morality according to the main criteria.

Additional literature on the topic:

1. Ageshin Yu.A. Politics, law, morality. Right. M. 1982.
2. Baranov V.M. Corporate and legal norms: some problems of interaction in modern Russia // Power and society. Social aspects of interaction. N.Novgorod. 1997.
3. Baturin Yu.M. Problems of computer law. M. 1991.
4. Golovkin R.B. Law in the system of normative regulation of modern society. Vladimir. 1999.
5. Emelyanov S.A. Law: definition of the concept. M. 1992.
6. Kozlikhin I..Yu. Law and Politics. SPb. 1996.
7. Maltsev G.V. Social justice and law. M. 1977.
8. Maltsev G.V. Social foundations of law. M., 2008.
9. Maltsev G.V. Moral foundations of law. M., 2008.
10. Marx K., Engels F. Criticism of the Gotha program (any edition).
11. Matuzov N.I. Law in the system of social norms //Jurisprudence. 1996. No. 2.
12. Motovilovker E.Ya. Theory of regulatory and protective law. Voronezh. 1990.
13. Cherdantsev A.F. The concept of technical and legal norms and their role in the formation of social relations /\Soviet state and law. 1964. No. 1.
14. The pure doctrine of law by Hans Kelsen. M. 1987.

LECTURE 8. PROBLEMS OF THE ESSENCE OF LAW

8.1. The main concepts of legal understanding (Marxist, psychological, normative, natural law, sociological)

People are looking for a concept of law that would absorb all the richness of this social phenomenon. Understanding the nature of law has rich history. Natural law, historical, realistic, psychological, normative, sociological, positivist and some other doctrines of law are known. They differ significantly from each other. If for one of them law is, first of all, a natural, natural phenomenon (Cicero, Locke), then for the other it is an expression of the historically developing spirit of the people (Savigny, Pukhta), for the third it is an interest protected by the state (Iering, Trubetskoy), for the fourth - the imperative experience of people (Petrazhitsky, Merilla, Fraser), for the fifth - the external regulator of social life (Stammer, Kelsen), for the sixth - the system of legal relations, people's behavior (Erlich, Shershenevich), etc. Despite all the differences, many of these doctrines represented any step in the knowledge of the nature of law. Along with ideas that turned out to be unjustified, they contained rational points that contributed to the general doctrine of law. In this regard, it is necessary to characterize them in more detail.

The study of the phenomenon of law as a holistic social institution is called law. Methodology of legal knowledge- these are special areas of science that study the nature, principles and methods of studying law. These principles and methods of cognition of law are based, in turn, on ontological axioms-postulates about the specifics (nature) of social reality. Therefore, depending on the worldview of the researcher, within the framework of the methodology of legal knowledge, there are several types of legal understanding that correspond to the main directions of philosophical thought. Types of legal understanding- these are philosophical and legal concepts containing the initial worldview principles of explaining law as an independent social phenomenon. These fundamental worldview concepts, by virtue of their universality and fundamental nature for the researcher, are by their very nature philosophical. That part of philosophy that deals with the explanation of the meaning, patterns, nature of law is called the philosophy of law. Therefore, various concepts of the philosophy of law form the main content of the types of legal understanding, revealing the essence of law as a socio-legal phenomenon in different ways.

The main philosophical schools correspond to several types of legal understanding. Let us consider the main methodological approaches to legal knowledge within the framework of materialism and idealism.

Marxism can serve as an example of the materialistic type of legal knowledge. For Marxist type of legal understanding are characterized by the following provisions.

1. The essence and development of law, like the state, are ultimately determined by the material conditions of the life of society, primarily by the type of production relations, determined, in turn, by the dominant forms of ownership of the means of production. “My research has led me to the result,” wrote K. Marx in the preface to his work “On the Critique of Political Economy,” “that legal relations, just like the forms of the state, cannot be understood either from themselves or from called the general development of the human spirit, which, on the contrary, they are rooted in material life relationships which Hegel, following the example of the English and French writers of the eighteenth century, calls "civil society", and that the anatomy of civil society is to be found in political economy.

2. Law, like the state, is a class phenomenon in its social nature. This means that it is possible only in a class society; appears with the division of society into classes; expresses, in the final analysis, the interests of the economically and politically dominant class (for example: in a capitalist society - the bourgeoisie, in a socialist society - the working class and all working people).

3. Law, although conditioned by economic relations, has, however, relative independence as a phenomenon of public consciousness and national culture, having an active feedback effect on all spheres of society, including the economic one.

4. With the change in the type of production relations, which, as a rule, occurs in the course of a social revolution, the class essence of law also changes, since it begins to reflect the interests, first of all, of the class that receives political and economic power.

5. With the disappearance of classes within the framework of the communist formation, law will lose its political character and gradually wither away along with the state. Human relations will be regulated by non-political social norms (the rules of the communist community), reflecting the harmonious and non-antagonistic interests of members of society.

Thus, Marxism sees the essence of law, first of all, in the fact that it is the state will of the ruling class erected into law, the content of which is determined (ultimately) by the material, production conditions of its existence.

On the basis of philosophical idealism and its currents, several types of legal knowledge have been formed, among which the most fundamental are legal positivism and the natural law doctrine.

Natural-legal type of legal understanding has deep sources in the political and legal thought of Ancient Greece, Ancient Rome, was developed in the Middle Ages, and the greatest flowering and modern sound - during the bourgeois revolutions of the XVII-XVIII centuries. The essence of this approach to legal knowledge lies in the assessment of law from the standpoint of justice, where only such norms of the legislator that correspond to " nature"- the nature of man, the nature of things, the nature of the universe. The natural type of legal understanding is characterized by the following main provisions.

1. Theoretical and practical distinction between law and law. Along with the positive (accepted by the legislator) law, there is a higher, real - "natural" right inherent in man by nature (the right to life, freedom, resistance to oppression, property, etc.). As V. A. Chetvernin notes, the natural law methodology in explaining and evaluating legal phenomena proceeds from the fact that “law” is a social phenomenon of streamlining human life, immanent to human existence, having in this quality a greater value than law, that law is a necessary regulator of interhuman relations, which differs from “derivative”, “imperfect”, “insufficient”, and sometimes even “unacceptable” law in that law is always “true”, “reasonable”, “natural”, “really”, “humane”, etc.”

2. Not every legal law, even if perfect in form, contains law. The content of any law must be subjected to verification from the standpoint of its compliance with “natural” human, social, natural, etc. norms: everything that contradicts “natural” law in positive law cannot be considered law.

3. Law and morality are conceptually the same: the term “legal” itself means the substantive compliance of legal prescriptions with the requirements of morality, where morality is the defining law-making and law enforcement determinant of law.

4. The source of human rights is found in "human nature" itself. A person acquires his rights and freedoms from birth, and these rights cannot be either “granted” to a person by the state, or alienated in favor of the latter.

This doctrine played a big role in the criticism of feudalism as a system that did not correspond to the "nature of man", serving as a theoretical basis for the bourgeois revolutions of the 17th-18th centuries. The ideas of this school are reflected in the US Declaration of Independence of 1776, the French Declaration of the Rights of Man and of the Citizen of 1789. At present, this type of legal understanding has become the basis of various legal and philosophical concepts of law.

Positivist type of legal thinking is based on positivism (positivus - lat.: positive) - the direction of philosophical idealism, which upholds the principle that the only source of true, valid ("positive") knowledge can only be something concrete (concrete, i.e. natural science, concrete, i.e., in laws, decrees, resolutions, etc. law, etc.). The position of morality, philosophy, axiology (theory of values), due to their high abstractness, cannot be verified through experience and therefore they are false, devoid of an objective criterion for verification (verification), i.e., speculative. Only that which can be verified by experience is true, that which positively exists is fixed by our sense organs. In accordance with these philosophical premises, positivist legal knowledge proceeds from the following provisions.

1. In contrast to the natural law doctrine, positivism identifies law and law issued by state power. Any norm in content is recognized as valid law, if only it has received official recognition by the state according to its formal and procedural criteria. Check its compliance with some abstract principles " human nature The positivists consider it absolutely superfluous for law because of the senselessness of such a test. Any criterion of "truth" and "naturalness" of a norm will be only a product of the preferences of the verifier, not amenable to scientific verification. The only basis for law can be only the very fact of its existence in certain official sources - laws, decrees, etc.

2. If the natural-legal type of legal understanding meaningfully identifies law and morality, then positivism, on the contrary, strictly distinguishes them. For law, the legal form itself is of decisive importance, and not the moral content of the law, decree, etc. Of course, the form and content must be adequate, but in case of discrepancy, the sanction of the state and inclusion in the existing legal order are of decisive importance for law.

3. The source of human rights, according to this approach, is in the legislation. A person has rights not by virtue of some of his “nature”, but as a citizen of a particular state, and the latter defines these rights in the Constitution.

4. The subject of the study of law should not be some extra-state principles of goodness and justice, but only the “positive” norms themselves, written in the texts of laws and thus accessible for direct observation and perception. The researcher must analyze these texts in accordance with the rules of logic, grammar, legal technique, etc.

Thus, positivism denies "natural law" and understands by law only legal acts - the results of the law-making activity of the state, or some other empirical (concrete) facts of reality.

Within the framework of the positivist type of legal understanding, several independent, distinct concepts of law have developed.

normativism, the author of which was the German lawyer Hans Kelsen, divides the subject's sphere of life into two areas - the area of ​​\u200b\u200bthe real and the area of ​​\u200b\u200bthe due, to which he also refers law. Thus, it has no justification outside the sphere of norms of obligation and its strength depends on the consistency and harmony of the system of legal norms - the pyramid of norms, where each norm draws its legitimacy from a norm of higher legal force. The strength of all law is based on the "basic rule" adopted by the legislator. At the base of the pyramid of norms are individual acts - decisions of the courts, contracts, instructions of the administration, which are thus included in the concept of law. “The norm,” G. Kelsen wrote, “giving the act the meaning of a legal (or illegal) act, is itself created through legal act which, in turn, derives its legal meaning from another norm. If a certain factual composition from the point of view of law is the execution of a death sentence, and not a premeditated murder, then this quality of it - which cannot be perceived by the senses - is revealed only by an effort of thought, i.e. when compared with the criminal and criminal procedure code. That an exchange of letters means, from the point of view of law, the conclusion of a contract follows solely and exclusively from the fact that the actual circumstances of this correspondence correspond to the conditions specified in the civil code. That a certain assembly of men is a parliament, and that, in legal terms, the result of their activity is a law—in other words, that these events have such a meaning—means that the totality of the circumstances relating to them corresponds to the norm of the constitution. In other words, content real events consistent with the content of a certain norm, which is recognized as valid. Legal knowledge is aimed at studying those norms that have the character of legal norms and give certain actions the character of legal or illegal acts.

Another current of positivism is psychological theory L.I. Petrazhytsky, which, like other positivist doctrines, excludes its essential and axiological (value) aspects from the concept of law, defining this concept by empirical (concrete) features. In the theory of L.I. Petrazhitsky, law recognizes not the formal norm of the legislator, but the given mental reality - the legal emotions of people. These emotions are of the so-called imperative-attributive nature, that is, they represent the experience of a sense of duty to do something (imperative) and a sense of entitlement to something (attributive norm). In emotion, these two feelings are inextricably linked. All legal experiences are divided into two types: the experience of positive (established by the state) and the experience of intuitive (autonomous, personal) law, which are not connected with the positive. Intuitive law, in contrast to the positive one, acts as a true regulator of behavior and therefore should be considered as a valid right. Its universal and specific features L.I. Petrazhitsky considered bilateral active-passive human experiences - emotions, which were supposed to be elementary particles of the phenomenon of law. Thus, this doctrine considers the experience of gambling debt, the experience of children of their duties in the game, the mutual experience of rights and obligations in criminal communities, which, thus, form "gambling law", "children's law", "pathological law » (mentally ill), etc. As we can see, the boundaries of the concept of law outlined by normativism (formal acts of state power) are significantly expanded and this concept includes the mental functions of a person. L.I. Petrazhitsky believed that the recognition by law of only what was established by state power unjustifiably narrows the circle of phenomena representing law. “... In the depths of the phenomenon of the human spirit lies, so to speak, the third kind of law, the third idea of ​​law, the mother and common source of the established two categories of law and the reason for the fact that both these different phenomena are called law.” Because of this, the psychological doctrine of L.I. Petrazhitsky, according to the initial methodological principles, adjoins positivism: for law, the content of legal experiences is indifferent: the description of the latter is put in place of the study of the essential and axiological aspects of law.

The third type of methodology of legal positivism is sociological theory of law. For it is characteristic, as well as for the natural law doctrine, the distinction between law and law. However, the essence of this distinction is different. Law as a matter of course (in laws) is not juxtaposed to the essential principles of the human spirit (natural law), but to the so-called “real law”, or “existing law”, or “living law”, embodied in legal relations, created by various subjects of social relations in the process of life. Law here is not the highest due - ideals, values, higher mind, divine will, as in natural law, but empirical facts of the behavior of subjects of legal relations - physical and legal entities. The norms of “living” law must somehow stand out from concrete behavior. This function - the formulation of law - is carried out, according to this approach, by judges in the process of jurisdictional activity. They look for the norms of "real law" and on their basis make a decision without being rigidly bound by state regulations. In this case, the judge acts not only as a law enforcer, but also as a subject of lawmaking, making the actual legal on the basis of specific expediency.

Thus, in the types of legal knowledge, various methodological guidelines are expressed on the initial problems of the relationship between being and consciousness, due and existing, matter and spirit. These phenomena are closely interrelated: therefore, there are no impenetrable partitions between the types of legal knowledge, despite the significant differences in their epistemological positions. So, for example, in the question of the nature of human rights, Marxism largely converges with the natural law school, recognizing the pre-legislative origin of human rights, but, unlike it, interprets these rights not idealistically, but concretely historically and materialistically - as a phenomenon determined by the totality of social relations in which a person is included. Both doctrines deny that human rights are granted (granted) by the state.

There are many points of contact between Marxism and positivism. All this testifies to the integrity and continuity of the process of legal knowledge.

The existence of various concepts of legal understanding often does not solve the problem of adequate knowledge of legal phenomena, but only complicates it, since the options for an "extended" understanding of law come into conflict with the traditional constructions of legal theory.

On the other hand, one of the reasons for the permanent criticism of normative legal understanding is the inconsistency of the traditional categorical apparatus of jurisprudence with emerging new legal categories and concepts.

In his famous work “Pure Theory of Law”, G. Kelsen emphasized that in order to define law, one should start with word usage, i.e. establish what the word "right" means in German and its equivalents in other languages ​​(law, droit, diritto, etc.). Further, he proposed to find out whether the social phenomena denoted by this word have similar features that distinguish them from other similar phenomena, and whether these features are significant enough to serve as elements of the concept of social science. As a result of such a study, the author concluded, it could turn out that the word "law" and its foreign language equivalents refer to such different subjects that no general concept can cover them all.

Based on the etymological meaning of the word "legal" in Russian, it should be associated with everything right and just in our life. Traditionally, in the domestic legal literature, it was believed that law in this respect is inseparable from justice. "Right", "legal", "fair" - this is one series of words that are close in meaning.

There are several meanings when using the term "right". Firstly, “right” as a Russian word is used in the sense that something belongs to someone: power, will, the possibility of behavior. Here the word "right" is used in opposition to such words as "duty", "duty". Secondly, the use of the term "law" in the sense of a rule of conduct established or accepted in public life is known. Law, understood in this sense, currently has many varieties: common law, natural law, canon (ecclesiastical) law, Muslim law, international law, corporate law, shadow law.

In legal science, these semantic differences are traced to a greater extent in relation to the use of such concepts as "objective law" and "subjective law", and to a lesser extent - in relation to the consideration of natural and positive law.

The concepts of subjective and objective law should not be confused with the problem of objective and subjective in law. As A.B. Vengerov, the result of determining the diverse content of law at the theoretical level is its understanding as objective and subjective in law. Objective when this content is determined by socio-economic, political and other needs. And subjective when this content is not justified, but, on the contrary, arbitrarily, is refuted by all social practice.

As for the categories “objective law” and “subjective law”, they are conditional phraseological concepts (expressions, phrases) accepted in the world legal science. It is impossible not to notice that if the concept of “law” was used without any reservations, then it always meant objective law. Without the use of the word "subjective" law is usually thought of as objective (a set of norms), even though the word "objective" was absent.

However, it should be pointed out that in jurisprudence there has long been a protest against the word "subjective". Some authors even suggested replacing it with the terms “personal”, “individual”, “concrete”, etc. The word “subjective” suggested some unusual and mysterious right, and not the one that all people in Everyday life. However, this protest was not directed against the very essence of the separation being carried out.

Most domestic scientists are convinced that legal science used the terms "objective" and "subjective" not by chance and not only to distinguish between two closely related phenomena, but in order to more fully reflect their socio-legal nature, functional role and social purpose.

It is curious that even L. Dyugy, who consistently denied the importance of the subjective rights of the individual and replaced them with the theory of "social functions", nevertheless wrote that the expressions "objective right" and "subjective right" are convenient, clear and precise, and therefore their use " perfectly legal." Firstly, the well-known expediency of the term “subjective” is related to the fact that all carriers (owners) of the rights and obligations provided for by law in legal science are called “subjects of rights”. Secondly, the words “personal”, “individual” right would express, in essence, only the moment of ownership of the right of the subject, but the philosophical aspect of the concept would not be reflected. The fact is that “subjective right” not only indicates that the right belongs to the subject, but also reflects the fact that the right belonging to the subject depends, within certain limits, on his personal desire and discretion, especially in the sense of use. The rule of law is objective: it does not depend on the will and desire of an individual, it cannot be disposed of as something personal, individual. Being a general, impersonal, abstract rule, the norm does not and cannot belong to anyone.

Thus, subjective right is subjective in the sense that, firstly, it is associated with the subject and, secondly, depends on his will and consciousness. Objective law is objective in the sense that, firstly, it is not confined to a particular subject and, secondly, is not associated with his will and personal discretion.

In the literature, it has been repeatedly proposed to combine two concepts of law into one, more precisely, to include the system of subjective rights of citizens, along with legal relations and legal views, in the content of objective law or simply law (S.F. Kechekyan, Ya.F. Mikolenko, A. A. Piontkovsky, L.S. Yavich and others). This is the so-called broad interpretation of law. These aspirations intensified with the recognition of the theory of natural law.

However, even such a position (let us note, not shared by us) does not prevent us from seeing in the law, understood so broadly, two cuts, two branches: mandatory regulations emanating from the state and the legal possibilities of individuals. One concept did not absorb the other. Objective and subjective law remain so far independent categories, closely related, but reflecting different aspects of legal reality. We can agree that "attempts to combine objective and subjective law with a single concept of law cannot be justified, since these phenomena lie in different planes of legal reality."

It should be stated with certainty that the recognition of the theory of natural law does not shake the whole doctrine of objective and subjective law, because in all civilized societies where the ideas of the natural law doctrine prevail, the division of law into objective and subjective, nevertheless, is preserved. After all, even "innate" rights without securing and guaranteeing them by the positive legislation of the respective states may turn out to be empty declarations.

Today, few people doubt the parallel existence of natural and positive law: these concepts have been different in the world political and legal experience for thousands of years. That is why it is impossible to introduce natural law into general definition right, for it would undermine the basic idea of ​​the natural doctrine. After all, the essence of this doctrine lies precisely in not confusing two different phenomena - the laws of the state and the "innate" rights of the individual. J. Del Vecchio noted that it would be erroneous to put the idea of ​​natural law, i.e. legal ideal, in place of the concept of law, just as trying to figure out this ideal by defining the concept of law, since they belong to different areas existence, which allows them to exist independently of each other.

Both identification and opposition of natural and positive law are unacceptable and harmful. Recognition and legislative consolidation of natural human rights gives the division of rights into objective and subjective new sound and meaning, especially since we are actually talking about the same problem, only in its different aspects, organically complementing each other.

In modern conditions, innate rights and freedoms have long been enshrined by most states in their regulations and confirmed in interstate, international documents. Thus, natural rights and freedoms are sanctioned by the state, turned by it into organic component legal regulators. As noted in the legal literature, now in a civilized society there are no grounds for opposing natural and positive law, since the latter consolidates and protects natural human rights, constituting a single system of legal regulation.

In modern foreign literature, the problem of the relationship between objective and subjective law is naturally supplemented by an indication of positive law: “Objective law is a system of rules governing life in society, the observance of which, in turn, is guaranteed by public authorities. Objective law is often identified with positive law, that is, with the totality of legal rules in force at a given moment and in a given society. However, such a vision of the subject turns out to be narrowed, since the state of law in a certain society at a certain moment cannot be considered separately from larger-scale phenomena, cannot be considered in isolation from its sources or from the general context, from trends in the sphere of ideology. However, depending on the situation (unlike, for example, English) French(as in Russian - from the author) the same term denotes both the objective right itself and the prerogatives recognized for individuals or groups of individuals, that is, those very subjective rights that objective law assigns to legal entities and which endow these legal entities with the right to own property or the right to power over others. These very fair provisions can be taken as a basis in further reasoning.

True, in the domestic literature of recent years, other views have appeared regarding the relationship between positive and objective law. So, Ya.V. Gaivoronskaya, distinguishing between legal norms and legal norms, believes that law as a whole can be defined as a system of legal norms designed to reflect the essential and substantive moments of a legal phenomenon, and positive law will appear as a system of legal norms - the most formalized and related to the state in terms of the method of formation and provision. Therefore, positive law is a part of objective law.

In addition, this article also contains the opinion of V.K. Babaev, who considers legal norms as components of positive law, and legal norms as natural law. In addition, a proposal by V.A. Muravsky to distinguish between law (as containing legal norms) and current law(as containing legal norms developed in the process of implementing social activities). At the same time, if Ya.V. Gaivoronskaya believes that the legal norm is embodied in the public consciousness or (to a lesser extent) in the behavioral process, then V.A. Muravsky argues that actual law exists only as an activity, a social movement, comprehended in terms and patterns of jurisprudence.

The methodological disadvantage of this kind of concepts of "right" and the corresponding definitions, in our opinion, is that through them they try to cover as proper legal phenomena in the legal sense, the ideas about which are very specific and do not cause serious disputes (for example, subjective legal right, positive law), and those social phenomena that cannot be regarded as law in the legal sense (such as natural law, as legal consciousness - intuitive law, as "living", social law - the established order of relations, etc.). Of course, in real social life, all these phenomena form a complex interacting system, exerting a certain influence on each other, which legal science will be able to comprehend only in combination with others. social sciences. But the fact that the own (specific) object of knowledge of the theory of law should be the “law of lawyers”, i.e. law in the legal sense cannot be questioned (by the way, like the very real existence of such a very peculiar social phenomenon). No other science can claim its exclusive study, while natural law, intuitive or social (informal) law can and should be studied in