1. What is the essence of law?

Sources:

· Philosophical Dictionary / Ed. I.T. Frolova. - 5th ed. - M.: F56 Politizdat, 1987. S.375-376

Despite the fact that law has existed for millennia, domestic and foreign literature has not yet developed a unified approach to determining its essence, an unambiguous idea of ​​it. The question of the concept of law is very complex and controversial. The essence of law is usually given depending on the type of legal understanding. The pluralism of existing approaches to the definition of law is a reflection of the complexity of law as an independent phenomenon.

The following concept of law is quite widespread both in scientific and educational literature:

Right is a system of officially established and protected norms that act as a regulator of human behavior.

Law, taken in the unity of formal and substantive features, has a number of specific properties.

1. Normativity. Law streamlines, harmonizes social relations with the help of regulatory means - the rules of law. legal regulation operates on the territory of a certain state continuously, up to its change or cancellation. The main purpose of the rules of law is to provide a general directional impact on the subjects of legal regulation, focused on lawful behavior. The normativity of law is the official connection between law and the state, therefore the activity of authorized state bodies (law-making) remains the leading way of regulating general patterns of behavior.

2. Formal certainty. Associated with formal expression, which suggests that the rules of law must necessarily be expressed outwardly, i.e. be fixed in a legal source.

3. security. Since law is the state regulator of social relations, the state must also take care of maintaining the effectiveness of law.

4. Consistency. Law has its own internal structure, a certain order of organization and arrangement of its constituent parts, due to the nature of the relations existing in society.

2. Indicate the content of the traditional (“prohibitive”) and liberal approaches to the interpretation of law.

The social institution of law belongs to the regulatory sphere public life, because its main purpose is the regulation and control of the behavior of individuals, the conclusion of this behavior in a certain framework, forms acceptable to society as a whole.

With all the obviousness of the functions and role of law in society, its essence, nature and content continue to be the subject of debate. Currently, there are mainly two approaches to understanding the essence of law: traditional, or “prohibitive”, and liberal, based on the idea of ​​“natural”, inalienable rights and freedoms of the individual.

Traditional approach actually identifies law with law. Law is a system of obligatory norms (rules) of people's behavior, established and supported by the state. In principle, this is a “normal”, so to speak, everyday interpretation of law, when it is perceived as a kind of set of prohibitions and punitive sanctions for their violation. The essence of such an understanding of law can be expressed by the principle: “everything that is not allowed is prohibited”.

A completely different approach to understanding the essence of law is expressed by the concept, conventionally called by us liberal which arose in the second half of the eighteenth century. within the framework of educational philosophy and is associated with the names of J. Locke, Ch. Montesquieu, J.-J. Rousseau, I. Kant, C. Beccaria and others. It proceeds from the conviction that in law it is not prohibitions and repressions, not restrictions on human behavior that are primary, but, on the contrary, their rights and freedoms. The term “law” was, as it were, returned to its true content, reflecting the social nature of law: it is, first of all, precisely the right of a person to life, property, security, freedom of conscience, speech, movement, etc. In other words, the basis of law, its origin , the natural rights and freedoms of a person are recognized as the primary element, which must be observed categorically, regardless of any, even the most expedient, requirements of the moment. No state prohibition and in general no requirement for an individual should encroach on his inalienable rights and freedoms.

To date, the following philosophical and legal problems have acquired great relevance: the problem of protecting the rights of the individual, the problem death penalty, the problem of the correlation of morality and morality, the problem of understanding the concepts of "law" and "crime", the problem of the correlation of private and state property. In this article, we will consider some philosophical and legal problems, namely the protection of individual rights, the relationship between morality and morality, and the problems of applying the death penalty in the system of punishments.

Low social efficiency and even dysfunction of certain institutions is a common phenomenon in world and domestic social history and practice. However, the scale and significance of the institution of human rights is incomparable with any other - it is he who largely determines the future of the country: the social, economic and political sides.

If we turn to the history of the issue, then for many centuries the rights and freedoms of a Russian citizen have been infringed. Russian life for many years it was organized in such a way that a person did not strive for a free, responsible, proactive life. Being dependent for a citizen was much easier: less responsibility in return for fewer rights. This principle has guided the population of our country for many years. Serfdom had a negative impact.

Serfdom and class differentiation, the dissolution of the individual in the rural community asserted adherence to patriarchal traditions, passivity and humility. The constant poverty of everyday life, which had become habitual, gave rise to leveling aspirations, a negative attitude towards wealth - “tears flow through gold”. In the literature, as a rule, they point to the contradictory nature of the Russian mentality, noted by N.A. Berdyaev: despotism and anarchism; state hypertrophy and legal nihilism; cruelty and kindness; propensity to violence and humanity; heightened consciousness of the individual and impersonal collectivism; searches for God and militant atheism, etc.

Today the situation has changed. The state seeks to protect the rights and freedoms of the individual, to ethical standards and justice, which are enshrined in the current Constitution of the Russian Federation. However, even serious attention to this problem, which has not been taken into account by the state for many years, cannot solve this issue instantly. For the formation of the institution of personality, rights, freedoms, it will take more than a dozen years.

In general, the innovations that characterize the legal field in modern Russia indicate a fundamental change in the foundations of the state, the entire political system, which in fact put the interests and human rights.

It is especially important to introduce ethical and moral standards and principles in the criminal justice system. At the moment, the legislation seeks not to infringe on the rights of the criminal, since the criminal is also a citizen of the Russian Federation. Therefore, first of all, the rights must be observed in the system of implementation of criminal proceedings, the defendant should not be Negative influence. Despite the violation of the law, ethical standards must be observed in relation to the defendant.

Note, however, that even in the pre-revolutionary period of development Russian state process scientists certain attention on the use of moral standards in criminal proceedings.

Today, this issue is no less relevant. Acquired a new legal meaning and such an ethical category as justice. Scientists have repeatedly expressed the opinion that this provision should be enshrined in the law, but this was not reflected in the RSFSR Code of Criminal Procedure. Today Special attention is attached in the Code of Criminal Procedure to the protection of the honor and dignity of participants in criminal proceedings. The modern system of legal regulation should be focused, firstly, on the observance of human rights and freedoms, and secondly, on the guarantee and observance of the system of justice and justice.

So, in modern Russia there is a contradiction between the three elements of the institution of human rights:

1. formal, legally formalized social statuses and roles that enshrine human rights,

2. social practices for their implementation,

The resolution of these contradictions and the formation of the institution for the protection of human rights and freedoms are the most relevant today, but on the other hand, this issue causes a number of philosophical considerations. Not every citizen of the Russian Federation supports, for example, the position that "the criminal is the same person, our rights and freedoms, the principles of morality and morality are the same." The development of legislative acts and their implementation should be carried out in stages, taking into account the attitude of citizens in society to this issue, without causing conflict situations in the country and ardent opponents of this statement.

Along with the formation of the institution of human rights and freedoms, justice and morality, the death penalty raises many controversial issues. Not only the opinion of well-known scientists and the acute debatability of their works, but, above all, the mood in society indicate that the topic of the death penalty was, is and will be relevant, regardless of the degree of regulation in the legislation. In fact, the death penalty has been abolished in the legislation of the Russian Federation, however, some articles of the Criminal Code of the Russian Federation refer specifically to this type of punishment.

Studies on this issue indicate the following. In Russia, the death penalty is not applied on the basis of international and national law, including in accordance with Art. 20 of the Constitution of the Russian Federation. The death penalty does not affect the reduction in the level of crime, including the number of grave and especially grave crimes, i.e. does not perform the functions of general and special prevention; the judicial and law enforcement system of Russia is not perfect, which leads to judicial errors that do not exclude the application of punishment to innocent persons; the types of punishment provided for by the Criminal Code of the Russian Federation and without the death penalty are more than enough to fight crime; etc.

In the conditions of further development and strengthening of statehood, and with it legal, democratic institutions, in the legal consciousness of citizens, and above all lawyers, the abolitionist (i.e., providing for unconditional abolition) approach to the issue of the death penalty should become predominant.

So, the study of philosophical and legal problems allows us to conclude that one of the main problems is the issue of humanity, the rights and freedoms of the individual, the observance of ethical and moral standards, the formation of a free, independent, proactive and open personality. The solution of this problem and the formation of this institution will significantly change the economic and political situation in the country.

The theoretical basis of the philosophy of law, the ideas of freedom and justice were the ideas about the rightness of a person as the highest social value of society and the state, expressed in the XYII-XYIII centuries by the philosophers-enlighteners J. Locke (1632-1704), C. L. Montesquieu (1689-1755) , J.J. Rousseau (1712-1778), M.A. Voltaire (1694-1778). They believed that a person has natural, inalienable rights (the right to life, the right to freedom, etc.), which belong to him from birth, which cannot be taken away by either the state or society. These philosophical and legal provisions are legally enshrined in the legal acts of that time - the English Magna Carta of 1215, the Petition on the Right of 1628, the Habeas Corpus Act of 1679 (England) (the Act on the better provision of the subject and on the prevention of imprisonment for seas), and other legal documents. It is impossible to deny their important role in the development of modern jurisprudence and philosophy of law.

It is not easy for a modern person to understand that the philosophical ideas about human rights and freedoms in the past were perceived as social utopias, the ideas of the great philosophers and thinkers of the past, who were far ahead of their time and had a huge impact on all subsequent political events, were very difficult to take root in the minds of people and society. generally. From the bourgeois revolutions in France, England, America, when the first attempts were made to translate these ideas into reality, it was then that the basic human rights and freedoms that are still used today were enshrined at the legislative level. So, in France, on August 26, 1789, the Declaration of the Rights and Freedoms of Man and Citizen and Citizen was proclaimed, and in America, on September 26 of the same year, the Bill of Rights (amendment to the US Constitution). However, in fact, until the gigantic social upheavals of the 20th century - the First World War, the October Revolution of 1917, the Second World War - even in states with long-standing republican and democratic traditions, not only the equality of all people, but also the possibility of protecting a person, was not actually recognized. who is recognized for his individuality and full respect for his rights and freedoms, regardless of his views, level of culture, education, place in society, wealth, race, nationality and skin color. Suffice it to recall the attitude towards Jews and other nationalities in Nazi Germany and Russia.

The clearest understanding of the legal status of man and citizen was formulated in the American Declaration of 1776, which states that: "... all people are created equal, and they are all endowed by their creator with equal inalienable rights, which include life, liberty and desire Luckily". However, the recognition by society of the legal status of a person and a citizen assumed not only a kind of social contract that called on people to respect the individual, but also the creation of a legal system that protects a person from the arbitrariness of the authorities. The history of mankind has shown that human rights and freedoms cannot be limited by narrow national boundaries, since all major world events, regardless of territorial, ideological or other barriers, leave their mark on it. Therefore, it is quite natural that the world community has come to understand and realize the legal status of a person and a citizen as the most important fundamental problem of the subject of the philosophy of law.

This attitude to the ideas of human rights and freedoms has largely become possible thanks to the United Nations established in 1945 and its activities. Its main task is to maintain peace, security, respect for the legal status of a person and citizen and disseminate ideas about these rights. So, on December 10, 1948, the UN General Assembly adopted the Universal Declaration of Human Rights. It is difficult to overestimate the importance of this international legal act. For the first time in international practice, the Declaration reflected the idea of ​​the inseparable connection and interdependence of the entire complex of fundamental human rights and freedoms. This provision was further developed in the resolution of the UN General Assembly on December 4, 1986: "All human rights and fundamental freedoms are indivisible and interdependent; and the development and protection of one category of rights cannot serve as a pretext or justification for the liberation of states from the development and protection of other rights."

important milestone in the development of human rights and freedoms, in the strengthening and development of international processes in the military-political, trade-economic, environmental, humanitarian, legal fields, became the Final Document of the Vienna Meeting of Representatives of the States Parties to the Conference on Security and Cooperation in Europe (1989 ) (10, pp. 45-51). During the Vienna meeting, for the first time, the philosophical term "human dimension" officially entered the legal lexicon. This meant the turn of the Helsinki process towards the person, his interests and concerns, this made the person the starting point of all accepted legal agreements. In the philosophical and legal sense, the "human dimension" refers to the whole range of human rights: civil, political, economic, socio-cultural, etc., as well as contacts between people, cooperation in the field of information, culture, education.

It should be noted that the philosophical and legal concept of human rights contains two main points. The first is that the inalienable and inalienable rights of the “first generation” (the right to life, the right to private property, the inviolability of the home, privacy) are inherent in a person simply because he is a person. These are natural (personal) rights that flow from the very human nature of each individual, and their purpose is to maintain a person's self-esteem. The “second generation” of human rights includes rights established in accordance with the rule-making processes taking place both at the national and international levels (civil, political, electoral, socio-cultural and other rights). The philosophical and legal basis of the rights of the second generation is the consent of those to whom they apply, that is, the consent of the subjects of law, while the basis of the first generation of rights is the natural order of things.

In general philosophical terms, human rights can be defined as rights inherent in human nature, without which he cannot exist as a biosocial being in a society of similar individuals. Thus, human rights and freedoms provide an opportunity for the full development and use of human qualities, intellect, talents and abilities, opportunities to satisfy spiritual and other needs. They are based on the growing need of humanity for a life in which the inherent dignity and worth of every human person is respected and protected by the state.

Human rights and the rule of law

The concept of the rule of law was formed in Western philosophy in the late XIX - early XX century. The formation of the ideas of the rule of law was one of the greatest achievements of philosophical and legal thought, inextricably linked with the "first generation" of human rights - personal, civil. This is primarily the right to life, the right to freedom and the right to private property. An important property of the rule of law is its dynamism, the ability to mobile and effectively respond to social changes that arise in society by legal methods. It is quite natural that new processes in the sphere of economic, political, moral relations require the search for new effective ways of relations between the state and the individual. However, the question of the relationship between the state and the individual in a free market economy was initially at the center of confrontation between representatives of various currents of philosophical and legal thought, since it affected the most important principles of society - freedom, equality and justice. At the same time, two philosophical approaches to this problem have historically been formed in jurisprudence. According to the first, the theory of individual freedom of a person, inseparable from the duty of the state to guarantee this freedom from anyone, including his own, interference in this area. In other words, the main thing is economic freedom, and political rights are only a means of achieving individual freedom of the individual. Proponents of this approach (BUT. Smith, J. FROM. Mill, B. Constant, D. Locke and etc.) believed that freedom ultimately breeds inequality, and thus freedom and equality can contradict each other! They considered freedom itself to be the highest value, ensuring the development of individuality and diversity of the personality, eliminating the “similarity” to likeness.

The founder of another philosophical and legal concept is the early bourgeois philosopher-thinker Rousseau, who believed that everything should be subject to the principle of equality, including the government, whose task is to ensure equality. This approach reveals a positive understanding of freedom as the right of a citizen to perform certain actions permitted by law.

These two directions were developed in Russian pre-revolutionary philosophical and legal thought. So, B. Chicherin defends the priority of freedom and its independence from any state interference in the political and economic spheres of society. Formally, such freedom is incompatible with equality. And although B. Chicherin opposed the extremes of individualism, in his opinion, social inequality is a natural result "movements industrial forces". Therefore, he is against state intervention in changing such a situation, because "such common law human life, a law whose action can only be terminated by the absolutely unthinkable universal destruction of freedom. If the state, instead of establishing equal freedom for all, decided "rob rich in benefit the poor”, then this would be not only a violation of justice, but also a distortion of the laws of human existence.

Thinking philosophically, it should be noted that the liberation of individuals from the strict tutelage of the state contributed to the development of creative initiative and self-activity of people, private entrepreneurship, the development and improvement of productive forces, the creation of new technologies and, ultimately, the growth of national wealth, the strengthening of the economic power of the bourgeois state. These parameters contributed to the achievement of the high value of classical liberalism. However, already at the end of the 19th century. there were also negative consequences resulting from the implementation of the ideas of liberalism and individualism, which required the adjustment of some of its principles, in particular the principle of freedom, “freedom from” any interference, influence, etc. During this period, class contradictions in society began to manifest themselves more and more clearly, a sharp polarization between wealth and poverty, which could lead to social explosion and upheaval. The principle of the so-called "equal starting opportunities", carried out with the complete non-interference of the state, inevitably gave rise to the stratification of society, since far from everyone, even talented and gifted people, have the ability to fight hard and compete, accept the "conditions of the game" of the market element, fit into the situations offered by the principle of freedom.

Individualism, which occupied such a prominent place in the philosophical and legal doctrines of classical liberalism, gradually began to reveal "selfishness and narcissism" (F. Hayek). This largely contradicted the original philosophical meaning given to this concept by liberal doctrines. In the philosophical and legal interpretation of representatives of liberal currents, individualism was associated primarily with a high assessment of the identity of the individual. "Basic traits individualism came respect to personalities how such, t. e. confession absolute priority views and addictions everyone human in his own sphere activities, how would narrow she is neither was, a also belief in desirability development individual talents and inclinations". According to the philosopher F. Hayek, a consistent supporter of liberal market concepts, just such individualism, which grew out of elements of Christianity and ancient philosophy, first fully developed in the Renaissance, grew into Western European civilization.

Human rights and legal culture

legal philosophy man freedom

One of the indicators of legal culture is the legal upbringing of a person, “... the desire in any business to establish the legal principles as the highest values ​​of civilization. Unfortunately, in our state the population has been brought up on a dogmatic, dismissive and superficial attitude towards human rights. The lack of legal culture is felt everywhere. In the formation of the legal culture of our society, it is necessary to use the experience accumulated by mankind in the relationship between the individual and the state. Recognition of the priority of universal human values, democratization and humanization public processes put on the agenda the issue of new approaches in the work on the formation of the legal culture of citizens. It is obvious that the previous approaches related to the education of law-abiding members of society are clearly insufficient for the creation of a democratic constitutional state.

Consolidation of human rights and freedoms as one of the foundations of modern political system implies diversity and free choice of views, life and activities of the individual, limited by only one condition: the prohibition of actions that destroy the personal rights of other people. Respect and protection of human rights is the foundation on which the democracy of state power is built, political structure human freedom. Human freedom, protected by the state, gives rise to the will and ability for economic and social progress, which, in turn, ensures true peace and the flourishing of all mankind.

Human rights and freedoms go back to the category of the most important universal values. The concept of value (precisely the concept, and not just a randomly used, fashionable word) was introduced into the special philosophical lexicon only in the 60s of the 19th century, when it was completely assigned to it. Values ​​are understood as "specifically social definitions objects of the surrounding world, revealing their positive or negative value for a person or for society (good, good and evil, beautiful and ugly, contained in the phenomena of social life and nature)". The concept of "value" is one of the main ones in philosophy and sociology. Subsequently there is a theory of values, and in it - whole line different schools: the concept of naturalistic psychologism (J. Dewey, C.Lewis, A. Meinong, R. Perry), the concept of axiological transcendentalism (V. Windelband, G. Rickert), socio-practical concept of Marxism, cultural-historical relativism (W. Dilthey, A. Toynbee, O. Spengler, P.Sorokin), structural-functional theory (F. Znanetsky, T. Parsons) and others. In the first decade of the 20th century, this area of ​​research emerged as an independent theoretical discipline, which was called "axiology" (from the Greek "axio" - value, "logos" - teaching). This term was introduced by the French philosopher Paul Lapi and later applied by a German scientist E. Hartman. This branch of science is aimed at reflecting the value aspects of reality.

The formation of modern thinking in the political and legal life of society is directly related to the problem of human rights in their practical implementation. Of particular importance here is the recognition of the priority of universal human values, the departure from confrontation, taking into account the experience of other states in the implementation of human rights, a clear position on the issue of the original, dominant nature of human rights, which finds its logical development in the principle of mutual responsibility of the state and the individual. Throughout its history, mankind has created entire sets of laws to guide social behavior people, to punish criminal acts and encourage actions that comply with legal norms. Human rights provide everyone with the maximum freedom of individuality, protect his life and dignity from any encroachment from outside. According to the famous thinker, Protestant theologian Alberta Schweitzer (1875-1965), it would be unreasonable to try to deny the connection that exists between law and worldview. Worldview is the germ of all ideas and beliefs that determine the course of action of the individual and society. It seems important that human rights, unlike morality, do not assess the interests of the individual, but protect, defend and delimit these interests. Human rights are a single set of rights and obligations. And at its core, human rights are the embodiment in a specific form lofty ideas justice, human freedom and equality, which in turn implies democracy, mercy, humanity. Each subsequent social system opens up new opportunities for the development of the individual, which increasingly becomes the bearer of the idea of ​​equality of rights and freedoms. "Nothing human in more despondency lead not maybe, how deprivation connected human right"

The concepts of the meaning of life, values ​​and ideals were largely based on these principles. The latter are not reduced to the needs and interests that determine the behavior of a person as an individual - ideals are closely related to the moral criteria that a person voluntarily imposes on himself. The state of democracy, the spiritual atmosphere of society, the level of culture have a huge impact on the scope and nature of rights and freedoms. An analysis of all these factors helps to answer the question of why in the conditions of one socio-economic formation in the states of different regions of the world a different scope of rights and freedoms is fixed. Human rights are interconnected with all other aspects of the moral and spiritual life of the people. The concept of "rights" contained in the Declaration implies human rights. It's about human dignity, equally common to all people, no matter who they are. Human dignity means the recognition of the value of the individual in society and the need to protect him from adverse actions on the part of other individuals or groups of the public, including the government. . "My freedom, how right, a not strength only, directly depends from recognition equal rights all others. Right there is freedom, conditioned equality... synthesis freedom and equality" Thus, the person in the rule of law is sacred, the person in it is always considered as an end and never as a mere means. All the postulates of a democratic society are built on such a foundation. The true activity of the state should be directed to the benefit of society and its individuals. In addition to freedom, self-realization of the individual requires another factor closely related to freedom, the variety of life situations. It has been noted that even the most free and independent person, finding himself in conditions of a monotonous life, does not achieve proper development. At the same time, one should not forget that diversity is a consequence of freedom. The state cannot wish a person any other state than one in which each individual, enjoying the fullness of freedom, can develop all his inclinations and abilities. Then physical nature also takes on in human hands that form, that image that each person arbitrarily gives it to the extent of his needs and inclinations, being limited only by the limits of his power and his right. Any desire of the state to interfere in the private affairs of citizens, if they do not infringe on the rights of others, is unacceptable and unacceptable. With freedom, people are more easily united in societies that help the state in many ways in the performance of its functions. It is in the interests of the state to allow as many parties in society as there are various private interests in it: after all, if the rule of law is an instrument of only one of these parties, then from where will it get the strength to subjugate all the others.

True freedom, true equality are feasible only in a democratic state governed by the rule of law, hallmark which is the rule of law. The implementation of laws testifies, first of all, to the extent to which the general civil rights established in the interests of everyone are realized. The scope of such rights in different states, of course, is not the same, and depends on the level of political culture of the state. However, whatever these rights may be, they are established as a common good. The entire history of human rights can be seen as a path towards the gradual recognition by all peoples of the dignity and worth of the human person. Each individual person is a product of socialization, an essentially single subject of activity and a bearer of certain cultural values. Considering a person in the structure of philosophical categories "general-special-singular", you can imagine it as humanity as a whole and universal in each specific representative of our kind; or as a certain community of people (racial, national, class, confessional, professional, characterological, etc.) and manifestations of this community in specific people; or as an individual in the concrete uniqueness of his real existence. This three-level structure, according to researchers, is one of the most important universals of being and human consciousness. Each of these levels exists as objective reality. The genetic, ecological, cultural commonality of mankind is reflected to varying degrees by different historical eras; it is perceived differently by different representatives of the same epochs.

MODERN PROBLEMS OF THE PHILOSOPHY OF LAW

Target:

Comprehension of modern philosophical and legal views;

Development of analysis and evaluation skills among masters related to modern philosophical and legal issues.

Report:

The main reasons and conditions for the multidimensionality of philosophical and legal views in modern world and in Russia.

Abstracts:

Law and law in the system of modern communities of people.

Features of the development of philosophical and legal views in modern Russia.

Questions:

1. Criteria for the classification of modern philosophical and legal views.

2. General and special between the philosophical and legal views of modernity and the periods of formation and development of law in the Middle Ages.

3. General and special between the philosophical and legal views of our time and the periods of development of views on law in the New Age and the Enlightenment.

4. General and special between the philosophical and legal views of our time and the development of views on law in the USSR.

5. Specificity of values ​​in law and law in modern Russia in relation to Western Europe.

6. Hermeneutics in modern philosophical and legal views and in the theory of law.

7. Philosophy of law and its connection with the methodology of the theory of law.

Assignment for independent work.

When preparing for the seminar, prepare a written response plan for one of the recommended questions, indicating the literature used.

master's work and essay writing

The main types of masters' classroom work are: lectures and colloquia. Masters do not have the right to miss classes without good reason, otherwise they may not be admitted to the final standings.

In the process of preparing for the colloquium, masters can take advantage of the teacher's advice. Approximate subjects of reports, messages, questions for discussion are given in these recommendations. In addition to these topics, masters can, in agreement with the teacher, choose other, initiative topics.

The colloquium includes presentations by masters with pre-prepared reports on original philosophical and legal topics. The basis of the reports, as a rule, is the content of the abstracts prepared by the masters.

The teacher can evaluate the results of quality control of the master's educational work, put current grades in the working journal. The master has the right to get acquainted with the grades given to him.

Independent work of masters includes the study of lecture material, textbooks and teaching aids, primary sources, preparation of reports, messages, speeches in group classes, writing essays, fulfilling the tasks of the teacher.

The method of independent work is previously explained by the teacher and can be further refined taking into account individual characteristics students.

Time and place of independent work /audiences of the Academy, libraries/ are chosen by masters at their own discretion, taking into account the recommendations of the teacher.

The study of the discipline ends with a test carried out throughout its content. The form of credit can be different: setting the final grade by accumulation, taking into account current grades; interview throughout the course; defense of an essay on original philosophical and legal issues - depending on the decision of the department, approved by the leadership of the university.

Masters who systematically worked on the discipline in the semester and showed positive knowledge on issues submitted to colloquiums are allowed to pass.

The abstract is a necessary element of learning, which begins with the choice of a topic. In order to choose the topic of the abstract, the master must listen to lectures and refer to educational and reference material (read the relevant chapters of textbooks, familiarize himself with the recommended teaching aids, etc.). Then you need to carefully read the proposed topics. It is better to choose a topic according to the problems that the master considers the most difficult, which will help to better assimilate and consolidate the material training course. It is advisable to choose topics that maximize your professional development.

An abstract is an independent written work that analyzes and summarizes publications on a given topic, involving the development and justification of the author's own position on the issues under consideration. Abstract preparation is a type of research activity. Its writing is preceded by the study of a wide range of primary sources, monographs, articles; generalization of personal observations. Work on the abstract activates the development of independent, creative thinking, teaches how to apply philosophical knowledge in practice in the analysis of pressing social and legal problems.

The volume of the abstract is 20-25 pages of typewritten text /one and a half intervals/. The title page indicates: belonging to the academy, department; topic of the abstract; surname, name, patronymic of the author, year of writing. The second sheet contains an abstract plan, including an introduction, main questions, and a conclusion. At the end of the abstract is a list of the studied literature in alphabetical order with full and precise indication of authors, titles of publication, place and year of publication.

In the process of working on the abstract, the masters can use the advice of the teacher.

The deadline for completing the control essay determines, as well as the time of defense, the faculty and department.

1. The subject of the philosophy of law.

2. Philosophy of law in the system of philosophical and legal sciences.

3. The main functions of the philosophy of law.

4. The structure of philosophical and legal knowledge.

5. Specificity of philosophical problems of legal activity.

6. Philosophy of law and theory of state and law.

7. The concept and socio-humanitarian nature of legal science.

8. The concept of law. Law as a reflexive system.

9. Basic philosophical and sociological concepts of law.

10. Socio-psychological forms of reflection of law.

11. The unconscious and its manifestations in legal life.

12. The concepts of legal mentality and intuitive law.

13. Spiritual and mystical forms of reflection of law.

14. Animistic perception of legal phenomena.

15. The manifestation of the mythological worldview in law.

16. Religious understanding of law. Divine law.

17. Philosophical and legal doctrine, its role in legal research.

18. Historical types of philosophy and their manifestation in the theory of law.

19. Cosmocentrism as a kind of philosophical reflection of law.

20. Anthropocentrism, its manifestations in the field of law.

21. Rational-humanistic reflection of law.

22. Philosophical and ideological approach in the philosophy of law.

23. Positivist type of legal reflection, its evolution.

24. Hermeneutics and modern philosophical and legal thought.

25. The concept of the phenomenology of law.

26. Problems of ontology in legal sciences.

27. Epistemology of law, its significance for legal research.

28. Features of the knowledge of legal phenomena.

29. Criteria for the truth of scientific and legal research.

30. Axiological problems of legal sciences.

31. Concept, content, structure of the methodology of law.

32. General scientific approaches and methods of knowledge in legal research.

33. Methods of empirical research in legal sciences.

34. Methods of theoretical research in legal sciences.

35. Forms of scientific knowledge, their manifestation in legal research.

36. Integrative approach in legal research.

37. The concept of paradigm, paradigm in legal science.

38. Activity approach to the analysis of legal phenomena.

39. The role of law in the regulation of social relations.

40. Law and culture.

41. Law and civilization.

42. Law and morality.

43. Law and religion.

44. Law and politics.

45. Law and state.

46. ​​Legal consciousness, its structure.

47. The problem of human rights in philosophy and law.

48. Freedom and responsibility of the individual.

49. Legal culture of the individual.

50. Philosophical culture of a lawyer.

51. Moral and ideological traditions of Russian lawyers.

52. Law and counteracting the phenomena of corruption.

Doctor of Philosophy, Professor of the Russian Academy of Justice

Annotation:

In this article, the author considers the fundamental problems of law related to equality, justice and freedom. The author substantiates that philosophy and law, as forms of social consciousness, perform important, closely interconnected functions of understanding social life. In the article, the author notes that among other forms of public consciousness, law is one of the most complex objects of knowledge, since law is associated with such forms of public consciousness as philosophy, morality, religion, and politics. The philosophy of law is a philosophical discipline that has as its subject the general patterns of the functioning of law, taken in their historical and sociocultural development, the definition and understanding of the meaning of law and its fundamental concepts. Law is a set of generally binding rules of conduct (norms) established or sanctioned by the state. The diverse spiritual life of society implies diversity in understanding the nature of law. The typology of philosophical concepts of law is touched upon and, depending on how the philosophy of law interprets legal reality, various philosophical and legal concepts are distinguished, which are due to two main types of law - natural and positive. The author gives the opinions of scientists, as well as substantiates the author's own views.

Keywords:

law, freedom, equality, justice, worldview, law, philosophy of law, typology of philosophical concepts of law.

Law is closely connected with philosophy. The fundamental problems of law, such as justice and equality, freedom and responsibility, power and will, and many others, are at the same time the most important philosophical problems. And their solution is rooted in the understanding of the essence of man and the search for the meaning of his being, which have traditionally been studied by philosophy.

“What is freedom? How much does a person need? What is equality and is it possible in society? Is there any justice? Or is it just an ideal? These and other questions have been an important part of philosophy since the very beginning. Already since antiquity, almost everyone whom mankind has remembered as serious thinkers has been thinking about philosophical and legal problems. Confucius and Mo-tzu, Plato and Aristotle, St. Augustine and Thomas Aquinas, Thomas Hobbes and John Locke, Kant and Hegel - these and many other prominent philosophers became classics of the philosophy of law, made a significant contribution to legal science.

Being the quintessence of culture, philosophy unites all forms of human life with worldview ideas, fills them with every sphere of society, whether economic, social, political, spiritual or legal. Philosophical reasoning is present wherever it is necessary to be able to formulate ideals and put forward goals, critically assess the theoretical and practical results of people's lives and activities, and suggest ways for the development of society.

Since in each of the areas of social life, worldview attitudes and human behavior are characterized by significant specifics, philosophical ideas interact with concrete scientific knowledge. That is why such sections as “philosophy of science”, “philosophy of history”, “philosophy of art”, “philosophy of politics”, “philosophy of religion”, “philosophy of law”, etc. are developing in the system of general philosophical knowledge.

Philosophy and law, as forms of social consciousness, perform important, closely interconnected functions of understanding social life. Philosophy has as its ideal Wisdom, which forms the rational foundations of spirituality, which manifests itself in the scientific and theoretical unity of social consciousness. The ideal of law is the Law, on the one hand, based on the dominant worldview in society, and on the other hand, it practically determines the forms and boundaries of people's behavior, taking into account state and public interests, their value preferences, needs and opportunities.

Understanding, comprehending and interpreting the deep sources and fundamental concepts of law, its worldview guidelines constitute the main discourse of the philosophy of law. Kozma Prutkov wisely noted that the fullness of the flux is one-sided. In order for a lawyer not to be likened to such a comparison, he needs complete knowledge about the phenomenon of law. On a philosophical basis, the formation of the personality of a lawyer, his beliefs, value and moral attitudes, which allow him to successfully fulfill his professional duties, to comprehend the unity of Wisdom and Law, takes place. The philosophy of law provides such an opportunity.

Law, as you know, is a set of generally binding rules of conduct (norms) established or sanctioned by the state. The diverse spiritual life of society implies diversity in understanding the nature of law. I do not pretend to be universal, let us single out some characteristic, in our opinion, worldview foundations of modern legal reality.

Among other forms of social consciousness, law is one of the most complex objects of knowledge. The fact is that law is closely connected with such forms of social consciousness as philosophy, morality, religion, and politics. It often turns out that researchers mix these forms, cannot methodologically correctly determine their preferences for one of them, and confuse concepts. And the social practice itself gives many examples of the fact that one form of social consciousness penetrates into another and it is sometimes difficult, for example, to distinguish between the norms of morality and law, religion and law. Philosophy, by virtue of its methodological armament, is quite capable of separating these forms of social consciousness and giving a scientifically verified result in their differentiation and correct understanding. Therefore, this suggests the conclusion that the philosophy of law is a philosophical discipline that has as its subject the general laws of the functioning of law, taken in their historical and sociocultural development, the definition and comprehension of the meaning of law and its fundamental concepts.

The philosophy of law performs a methodological function in relation to the legal sciences. Methodology is understood as a system of methods used to study a particular reality, as well as the philosophical doctrine of these methods. And the method, as you know, is the way to achieve certain goals, the way to get new knowledge about reality. Based on this, it can be determined that the method of the philosophy of law is a set of cognitive means, allowing to explore the multifaceted legal reality in its relationship with other elements of social life, as well as a theoretical analysis of these tools. The arsenal of these funds is quite wide. Since modern jurisprudence is an extremely ramified set of individual branches, each in the process historical development developed many private methods and techniques, methods of action with objects of law.

In any consistent philosophical and legal theory, its subject is methodologically comprehended, and the method is objectively expressed. That is why such a theory has a methodological significance, has the function of a method of cognition and performs this role either directly or indirectly, as an integral part of the philosophical and legal theory.

Due to their great cognitive value and heuristic potential, the methods of some deep and original philosophical and legal theories subsequently acquire an existence and methodological significance independent of the subject of the corresponding theories. As such methods in the philosophy of law, for example, methods of dialectical, historical, ontological, axiological, phenomenological, existentialist, systemic, comparative legal research, etc. are used.

Of course, any new philosophical and legal theory can arise only on the basis of previous theories and is in the necessary continuity with them. This is also manifested in terms of the use of various methodologically significant means and methods of studying a certain object, which have already proven their cognitive value, forms of organization and systematization of new philosophical and legal knowledge about the object, principles of interpretation and evaluation of previous concepts and new theory in the general context of the world philosophy of law, the way of correlation of philosophical and legal thought and the studied objective reality, etc. However, it should be borne in mind that the relevant methods of both past and modern philosophical and legal theories - including methods that are recognized for philosophical and general scientific significance - are cognitively connected with the subjects of their theories and outside their cognitive semantic unity with their subject. acquire in other theories a different cognitive meaning and a different objective expression. So, different adherents of the dialectical method (Heraclitus, Hegel, Marx, etc.) have completely different philosophical and legal teachings. The same can be said about the philosophical and legal concepts of adherents of other general philosophical and general scientific methods.

The fact is that any new philosophical and legal doctrine is, to the extent of its cognitive novelty, a new theory with its new subject and new method, therefore, in such a new cognitive context, the provisions of previous theories have cognitive significance only as appropriately creatively comprehended, transformed, mastered and subordinated (according to the logic of the progress of knowledge) moments of the provisions of the new theory (its subject and method). The preservation of something cognitively valuable from other (past and modern) theories is not its repetition, but its development and renewal in adequate forms of a new cognitive situation, in the semantic context of a new theory.

Typology of philosophical concepts of law. Depending on how the philosophy of law interprets the legal reality, there are various philosophical and legal concepts that are due to two main types of law - natural and positive.

Natural law refers to the ideal factors of law, which express its deep essence. They exist in the consciousness of the subject (legal consciousness) as his attitude, as an ideal. It can be said that this is a form of due in relations between people, which is regulated by law, cleared of random everyday phenomena. It should be emphasized that natural law determines the initial principles on the basis of which legal norms are accepted (should be adopted) and on the basis of which they are evaluated based on the hierarchy of values ​​that philosophy sets.

The natural law approach connects the consideration of legal problems with basic human values: freedom, justice, the right to life, the independent status of a person, etc. At the same time, it focuses on natural, and, therefore, living, developing reality, including point of view of the requirements and norms concerning the relationship with nature.

The natural law approach when considering issues of law has significant methodological significance also because the requirements of natural law have properties that are close to the properties of phenomena of a natural, natural order. Namely, absolute unconditionality, categoricalness, insubordination to specific situations (including arbitrariness, the discretion of individuals), the inevitability of spontaneous onset of negative consequences when ignoring natural law requirements.

Positive law refers to the current system of law: legal norms, relations and court decisions. Otherwise, we can say that it is fixed by various regulatory documents system of requirements of state institutions, expressed in law. Positive law is an institutional formation: it exists in the form of outwardly objectified institutions, formalized legal norms expressed in laws and other generally binding normative legal documents. We emphasize that a decisive role in the formation of law is played by its expression in writing.

The following main properties of positive law can be identified:

Normativity - this property of law is characteristic of law as a regulatory system, with the help of which constant reproduction of the values, conditions and forms of life inherent in a given society can be achieved;

Certainty, in which it is possible to achieve the utmost accuracy, clarity, specificity in determining the range of subjects, rights, obligations, sanctions, legal guarantees, etc. in written documents;

State security, that is, the guarantee of the operation of law, the ability to make real the order of rights and obligations provided by the state, its implementation in social relations.

Thus, with the ontological unity of natural law and positive law, the following differences between them can be distinguished:

Natural law is supposed to be derived from nature, from the spiritual and moral quest of a person to live in peace and order. Positive law is created by people and is realized through the state;

Natural law arises with the development of culture, and positive law only with the advent of statehood. Natural law is ideal in its content and is not identical with legislation. Positive law identifies itself with legislation and therefore belongs more to civilization than to culture;

Natural legal norms are expressed both in legal documents and in the form of customs and traditions. Positive-legal norms, on the other hand, imply only official fixation in the form of normative acts of a legal nature;

The fundamental rights of a person to life, liberty, property, personal dignity are considered by natural right to belong to him by birth. Positive law believes that a person receives freedoms and rights from the state;

The ideas of natural law rest on moral and religious foundations. Positive law is based on the will and power of the state and is convinced of the necessity and sufficient nature of such justification;

The highest value aspirations for natural law are the ideals of the common good, freedom and justice. For positive law

We consider it important to emphasize that the degree of development of the philosophy of law and its place in the system of sciences depend on the general state of philosophy and jurisprudence in society. The degree of development and place in society of science, morality, religion, the connection between various forms public consciousness. Politics and ideology are of great importance here. So, in the recent past, the domestic scientific community, under their influence, was forced to be on the sidelines of the development of world philosophical and legal thought. Only after the 90s. 20th century the situation has changed. And now the philosophy of law asserts itself in science and education as a self-sufficient philosophical discipline.

At present, we can talk about the formation of such an independent philosophical and legal direction in the study of legal reality as the aesthetics of law. We believe that the influence of aesthetics on the legal reality in general, the problems of aesthetic education of the personality of a lawyer and the aesthetic component of legal activity require closer attention of social and humanitarian scientists.

The ability to realize the high humanistic meaning of one's activity, to philosophically substantiate one's worldview position and the legal decision being made, is a sign of high professionalism and civic maturity of a lawyer. This is largely determined by the ideological attitudes of a lawyer, the formation of which is intended to be influenced by the philosophy of law. Attempts to solve the fundamental theoretical problems of law without their philosophical justification lead, as a rule, to relativism, or to dogmatism. Therefore, the need for students of law schools and faculties to study philosophical and legal knowledge is determined, first of all, by the needs of their future specialty. The study of the philosophy of law greatly contributes to the fundamentalization of the education of future masters, their development as independent and creatively thinking individuals. This explains the fundamental place and importance that the philosophy of law occupies in the system of academic and scientific disciplines studied in the magistracy of a law school.

The philosophy of law does not aim to solve specific problems of jurisprudence. It helps the lawyer to comprehend the philosophical problems of law, teaches the breadth of thinking, the ability to refract the acquired knowledge into practice. This determines the role of the philosophy of law in the system of legal sciences as a general methodological discipline.

The philosophy of law is a philosophical discipline that studies the general patterns of the functioning of law, taken in their historical and sociocultural development. It also reveals the meaning of law, dissects its fundamental concepts. Philosophy of law differs from legal sciences in that it explores the general laws of the formation and development of law, its value foundations at the philosophical level. Philosophy of law teaches clarity and organization of legal thinking.

The structure of the philosophy of law as a whole corresponds to the structure of philosophy, but the ontological, epistemological and axiological aspects of understanding the legal reality are of particular importance here.

Philosophy has constantly turned to the analysis of the legal life of society, since without understanding the law it is impossible to understand the meaning and sources of existence of society. In turn, law, being a complex socio-cultural formation, has always experienced an urgent need for philosophical and ideological generalizations. In practical terms, the origin and development of the philosophy of law is associated with the constantly manifesting need to improve the organization and management of the life of society.

En title:

Modern Questions Of The Legal Philosophy

Annotation En:

In the present article the author considers fundamental problems of law connected with equality, justice and freedom. The author proves that philosophy and law as forms of public consciousness carry out the important closely interconnected among themselves functions of the social life judgment. In the article the author noted that among other forms of public consciousness law is one of difficult objects of knowledge, because law is connected with such forms of consciousness as philosophy, morals, religion, policy. The legal philosophy is the philosophical discipline having the subject the general regularities of law functioning, taken in their historical and sociocultural development, definition and the sense of legal judgment and its fundamental concepts. Law represents a set of obligatory rules of conduct (norms) established by the authorized or the state. Diverse spiritual life of the society assumes a variety in the nature of law. The typology of philosophical concepts of the law and how the legal philosophy interprets legal reality is researched, various philosophical and legal concepts which are caused by two main types of rights – natural and positive are allocated. Author gives opinions of scientists, and explains own views of the author.

En keywords:

right, freedom, equality, justice, outlook, law, legal philosophy, typology of the philosophical concepts of law.