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14.03.2020

The type of legal understanding as a specific type of scientific paradigm is a theoretical and methodological approach to the formation of the image of law, carried out within the framework of a certain methodology of analysis from the standpoint of one or another theoretical vision of the problem. In accordance with this definition, the classification of types of legal understanding was based on the methodology of analysis of law, which makes it possible to distinguish between positivist and non-positivist types of legal understanding, within which various areas of legal understanding and concepts of law develop.

The positivist type of legal thinking is based on the methodology of classical positivism as a special current of socio-philosophical thought, the essence of which is to recognize only specific, empirical data established through experience and observation as the only source of knowledge, to refuse to consider metaphysical issues, including the analysis of essence and causes of phenomena and processes. Historically, the first and main direction of positivist jurisprudence is the legalistic approach to understanding law, in which law is identified with law, i.e. with a generally binding rule of conduct prescribed by public authority, secured by political and imperious coercion (the word "law" is used here in a broad sense, including judicial precedent and legal custom). Later, other directions of positivist legal thinking developed.

Non-positivist legal understanding, from the point of view of the methodology of its approach to the analysis of law, proceeds from the idea that there is some ideal legal criterion that allows assessing the legal nature of phenomena observed at the empirical level. Within the framework of this type of legal understanding, two main directions can be distinguished - natural law and philosophical understanding of law. In the methodological plane, the difference between these two approaches lies in the different interpretation of the key problem of philosophy - the problem of distinguishing and relating essence and phenomenon. The philosophical type of legal understanding (which should not be confused with the philosophical approach to law) is focused on understanding the essence of law as a special social phenomenon and assessing positive law from the point of view of this ideal essential criterion. For the natural law approach, such a criterion for evaluating positive law is not a theoretical understanding of the essence of law, but natural law, which acts both as an ideal and as a real-life genuine law, which the current legislation must comply with.

The fundamental difference between the two types of legal thinking lies in the distinction between law and law.

Within the framework of the positivist understanding of law, several independent concepts of law have developed: normativism, historical, sociological, psychological, natural, Marxist, modern.

The theory of natural law. It acquired its completed form during the period of bourgeois revolutions of the 17th-18th centuries. The representatives of this trend were T. Hobbes, J. Locke, S. Montesquieu, Radishchev and others. The main thesis of this doctrine is that, along with legal norms established by the state, law also consists of a set of inalienable rights that belong to a person from birth. This theory correctly points out that laws can be contrary to law and not legal, and therefore they must be brought into line with law. In the first place in law are put forward such evaluative concepts as freedom, equality, justice, etc. The development of the moral basis of law occurs to the detriment of its formal legal properties. “Both traditional and “reborn” natural law are deprived of proper content and conceptual certainty and general validity, because there never was, is not and, in principle, cannot be any one single natural right, but there were and are many different (separate , special) natural rights, more precisely, their concepts and versions” Problems of the General Theory of Law and State / Ed. V.S. Nersesyants. M., 2002. S. 148. Positive in this theory is the separation of law and law, i.e. along with positive (positive) law, there is a genuine unwritten law, which is understood as a set of inalienable and natural human rights. The source of law is not legislation, but human nature and its inherent moral qualities. Thus, within the framework of this theory, law and morality are identified. But such an understanding of law as abstract moral values reduces its formal legal properties, this understanding is associated not so much with law as with legal consciousness. The theory of natural law in the process of historical development has undergone a number of changes. In recent times, the theory of revived natural law (the concept of natural law with changing content) has tried to reconcile the individual extremes of this theory. Thus, the norms of positive (positive) law were recognized as law if they did not contradict natural law principles. The theory of the revived natural law served as the basis for the formation of neo-Thomism (the foundations of law were determined in religious morality) and the secular doctrine of natural law. The revival of natural law was “an anti-totalitarian reinterpretation of natural law ideas and values. The leading role of representatives of natural law in the legal criticism of totalitarianism and totalitarian legislation, the active development from such anti-totalitarian (largely from libertarian-democratic) positions of the problems of natural and inalienable human rights and freedoms, the value of law, the dignity of the individual, the rule of law "Problems of the general theory of law and states / Ed. V.S. Nersesyants. M., 2002. S. 155. . "Revived" natural law is focused on solving the most important problems of legal practice.

Historical theory of law. The greatest development was in the late XVIII-early XIX centuries. in the writings of representatives of the German historical school of law (Hugo, Savigny, Puchta, and others). This theory arose as an antithesis to natural law doctrine. Representatives of this trend consider law as a historical phenomenon that develops gradually, spontaneously from the "bowels of the national Spirit". Therefore, the German historical theory adhered to conservative views and was ideologically directed against the universalism of Roman law, expressed the desire to defend the originality of national forms and content of law. A well-known ideological formula of this theory was the thesis that "The spirit of the people determines the right of the people." Law here appears in the form of historically established rules of conduct, laws are derived from ordinary law. Legal customs are recognized as the main source of law. “According to the teaching of the historical school, there is no eternal, universal right; law in all its composition is a product of history” Trubetskoy E.N. Encyclopedia of Law. SPb., 1998. S. 49. The historical school of law denies the category of human rights and pays, first of all, attention to the national-cultural and historical features of law. In modern terms, this school opposed the "globalization" of law and legal consciousness. This theory rightly emphasized the natural development of law, the dependence of the legislator on the beliefs of the nation and on traditional legal guidelines. The reassessment of legal customs to the detriment of legislation led to an unreasonable disregard for the formal legal and natural law principles. At the same time, the advantage of this doctrine was the development of evolutionary, organic development of law, the denial of the need for revolutionary wills. Law in this theory was considered through the theory of legal relations. The German historical school of law significantly influenced the development of Russian positivism and the statist approach (Kavelin, Chicherin, Sergeevich).

Normativist theory of law. This theory gained popularity in the 20th century. Representatives this direction were Novgorodtsev, Stammler, G. Kelsen and others. Within the framework of this doctrine, the state was identified with law, with legal form, with the result of the action of law. The law itself was a set of generally binding norms containing the rules of proper behavior. The obligatory nature of law was derived not from morality, but from the authority of the supreme norm, as a norm emanating from the sovereign (the state). At the same time, the norms of law are lined up in a certain pyramid, at the top of which is the main, supreme norm. All other norms, as it were, take strength from it. The basis of the pyramid of norms are individual, law enforcement acts, first of all, court decisions, contracts, instructions of the administration, which must comply with the main norm. Each subsequent norm takes its specific place in this system in accordance with the principle of legal force. In this theory, such essential qualities of law as normativity, universal validity, legal force, formal certainty, security of the operation of law by the compulsory protection of the state were pointed out. The disadvantage of this understanding is the consideration of law separately from economics, politics, social system. “The dogmatic direction, unlike the historical one, aims at a systematic exposition of the norms of civil law; the material for dogmatics is all positive law; not limited to description and generalization, the dogmatist sets himself the goal of defining legal concepts ... The definition is also based on generalization” Shershenevich G.F. Textbook of Russian civil law. M., 1995. S. 15. the state is understood, first of all, the state regime. Appeal predominantly to the formal

side of law ignores its substantive side, first of all, the rights of the individual. The role of the sovereign is absolutized, i.e. states in determining the substantive characteristics of law. Law is understood mainly as the order of proper behavior, since according to Kelsen, law belongs to the sphere of due, and not to being. It has no legal force outside the sphere of norms of duty, and its strength depends on the consistency and harmony of the legal system. Representatives of this trend sought to study "pure" law, free from moral and other value characteristics. The broad possibilities of the state to influence society and its development are recognized, and the role of the latter, including in the law-making process, is underestimated.

Marxist theory of law. This theory took on a veiled form in the 19th-20th centuries. in the writings of Marx, Engels, Lenin, and others. Law was considered here as the will of the ruling class elevated to law. Law, like the state, is interpreted as superstructural formations in relation to economic structure society. The content of law is understood, first of all, as its class essence. Marxist theory is characterized by considering the concept of law in close connection with the concept of the state, which not only forms it, but also supports it in the process of implementation. In the content aspect, there is a clear separation of the legitimate and the illegal. The role of class principles in law is exaggerated to the detriment of universal principles, the life of law is considered within the limited framework of a historical, class society, rigidly conditioned by material and production factors. Thus, in law, first of all, the class will receives state-normative expression. The formal aspects of law (lawful, unlawful) are exaggerated to the detriment of the substantive, general social principles of law. The content of law is of a narrow class nature.

Psychological theory of law. This theory gained popularity in the 20th century. Representatives of this school are Ross, Reisner, Petrazhitsky and others. Law is considered here as a set of elements of the subjective human psyche. The concept and essence of law is derived not through activity, but through psychological patterns -

legal emotions of people that are imperative-attributive in nature, i.e. are experiences of a sense of entitlement to something (attributive norm) and a sense of obligation to do something (imperative norm). The psyche is declared a factor determining the development of society. All legal experiences are divided into two types: experiences of positive (established by the state) and intuitive (personal-autonomous) law. Intuitive law, unlike positive law, acts as a real regulator of behavior and is regarded as a valid law. Undoubtedly, the psychological aspects of law, the role of legal consciousness in legal regulation are taken into account and the formal legal aspects of law are underestimated. This concept of understanding law distinguishes between formal and informal law. Official law is established by the state and enforced by it. Informal law is devoid of state interference, but still acts as a law. Along with written law, unwritten law (the sphere of psychological experiences) is deduced. This means that legal norms can be created apart from the state as a result of the mental activity of individuals and the social whole. From the point of view of essence, law is considered as an intuitive phenomenon corresponding to the emotional sphere of a person. State coercion does not act here as an essential feature of law. Psychological theory correctly focuses on the dependence of the law-making process on legal consciousness, on the consideration of psychological patterns in the process of law enforcement. Psychological reality is declared to be the source of law, and legislative activity and legislation are derived from the emotional and legal sphere. Within the framework of the psychological theory of law, the role of legal consciousness in legal regulation is increasing. This theory had a great influence on the development of criminal law, criminal procedure and applied legal sciences (criminology, forensic science, forensic psychiatry, etc.).

Sociological theory of law. This theory was most widely used in the 20th century. in the works of Erlich, Zhenya, Muromtsev, Kotlyarevsky, Kovalevsky, and others. It is based on empirical research and is associated with the development and functioning of legal institutions. The law here means, first of all, legal actions, legal practice, the application of law, the rule of law. Thus, law acts as an order of social relations, expressed in the activities of the subjects of legal relations. The importance of contract law is growing, but “the binding force of contracts is determined by their form, and not by their content, i.e. agreement, and not interests, as Iering claims "Chicherin B.N. Philosophy of law. SPb., 1998. S. 119. first of all, "living law" is studied. Law and law are separated here: if the law is in the sphere of due, then law is in the sphere of being. First of all, judges formulate “living law” in the process of jurisdictional activity, they “fill” laws with law, making appropriate decisions. This understanding of law is close to the doctrine of common (Anglo-Saxon) law and was directed to a certain extent against the conservatism of the German historical school of law. MM. Kovalevsky noted that “German lawyers have lost consciousness of the connection in which law is with the growth of culture and citizenship. The idea of inner development and close dependence existing in each this moment between law and the economic, social, political and religious-moral way of the nation ... Without history, it is impossible to indicate either the organic nature of legislation or the imperfections hidden in it, the source of which lies entirely in the fact that life has overtaken legal creativity "Kovalevsky M.M. Sociology. SPb., 1997. T. 1. S. 83. The priority of the content over the legal form is noted. According to B.A. Kistyakovsky, “the disadvantage of sociological jurisprudence is the development subsequently only sociological problems about the causes and forces leading to the formation and development of legal institutions "Kistyakovsky B.A. Philosophy and sociology of law. SPb., 1998. S. 387. Judges here are not strictly connected with legal norms and resolve cases at "judicial discretion". Varieties of this legal understanding are the social concept of law and the solidarity doctrine of law, in which law is seen as a means of achieving social balance and cooperation of various social strata in exercising power and transforming public life. At the same time, attention is focused on the regulatory, social functions of law as a means of resolving possible social conflicts. The theory contributes to the orientation of law to general democratic values.

Modern theory of legal understanding. Modern legal understanding is connected, first of all, with two common approaches to understanding law: in a broad (philosophical) and narrow (narrow normative) sense. Within the framework of the narrow normative approach, law is considered as a system of formally defined, universally binding norms sanctioned by the state and provided by its coercive force. The followers of this approach in jurisprudence recognize, first of all, the practical-utilitarian value of law, i. the possibility of real use of law in the regulation of social relations. Proponents of a "broad" understanding of law proceed from the fact that law is not identical

legislation, this approach is primarily aimed at understanding the essential (philosophical and value) basis of law, at studying the meaning of law, general legal principles and principles. Law is considered here as a form of freedom, for example, in the libertarian theory of law: law as a form of freedom, formal freedom. The concept of law includes such legal elements as legal relations, legal consciousness, subjective rights. The source and purpose of law are social relations that correspond to the natural law principles of justice. Both approaches converge in the understanding of law as a set of norms established and protected by the state.

Summing up, all of the above, one cannot but agree with a prominent figure in the field of legal sciences, academician, doctor of legal sciences Vladimir Nikolayevich Kudryavtsev, who believed: “For all different approaches To understand the law, a professional lawyer should have a clear and definite position: no provision, belief or opinion can be considered as a legal norm, as long as they are not expressed in a legal act, adopted properly. Accordingly, this act can only be changed in the manner prescribed by law, on the basis of a democratic procedure that expresses the will of the people ”Kudryavtsev V.N., Kazimerchuk V.P. Modern Sociology of Law: A Textbook for High Schools. - M.: Jurist, 1995. S. 154.

O.Yu. PEROV, Ph.D. in Law, Senior Lecturer, Department of Business Law, Nizhny Novgorod State University. N.I. Lobachevsky, N.V. EVDEEVA, PhD in Law, Senior Lecturer, Department of Theory and History of State and Law, Nizhny Novgorod State University. N.I. Lobachevsky The article analyzes the question of whether the content of the influence of law will change when the type of understanding of law changes, or the structure of legal influence developed and established within the framework of Russian legal science...

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O.Yu. PEROV,

PhD in Law, Senior Lecturer, Department of Business Law, Nizhny Novgorod State University named after V.I. N.I. Lobachevsky,

N.V. Evdeeva,

PhD in Law, Senior Lecturer, Department of Theory and History of State and Law, Nizhny Novgorod State University. N.I. Lobachevsky

The article analyzes the question of whether the content of the influence of law will change when the type of understanding of law changes, or the structure of legal influence, developed and developed within the framework of Russian legal science, is autonomous from any type of legal understanding. The presence or absence of the dependence of the structure and content of the legal impact on the three classical types of legal understanding is established.

Key words: legal impact, legal understanding, impact of law, law, theory.

In article the question is analyzed: whether right influence at change of type of understanding of the right or the structure of the legal influence which developed and have developed within the limits of the Russian jurisprudence will change, is independent from any type of right understanding? For the answer to the brought attention to the question presence or absence of dependence of structure and the maintenance of legal influence from three classical types of right understanding is established.

Keywords: legal influence, right understanding, right influence, the right, the theory.

Legal impact includes the whole process of the influence of law on social life, consciousness and behavior of people. The purpose of legal influence is the legal order. Legal impact is the relationship between law and a person, where, on the one hand, the law affects the person who acts as its object, and on the other hand, the person perceives and cognizes this influence. The legal impact has the following forms: informational, orientational and special-legal (legal regulation).

information impact. The provisions of the law “inform” their subjects of information about the desired, encouraged, required, permitted and prohibited behavior patterns for society, and also contain data on specific measures of information and psychological impact (benefits, incentives, suspension of activities, etc.). The purpose of the information impact of law is to convey legal information to people. The object is the legal consciousness of individuals. The main category of such impact is legal information.

Orientation impact. Law establishes the most important, basic social values that must be respected and observed; the behavior of individuals in such a society must correspond to the designated values. The purpose of the orientational legal impact is to consolidate and protect legal values. The object is the legal consciousness of individuals. The main category of orientational influence is legal attitudes (inciting to lawful or illegal behavior).

Legal regulation is a special-legal stage-by-stage process of the operation of the right to social relations with the help of a system of legal means, which together constitute its mechanism. The end result of legal regulation is the orderliness of social relations and the lawful behavior of subjects. The increase in the number of settled relations contributes to the achievement of the goal of legal influence - the legal order. The object of legal regulation is the behavior of individuals.

Will the content of the influence of law change when the type of understanding of law changes, or is the structure of legal influence developed and established within the framework of Russian legal science independent of any type of understanding of law? The relevance and importance of this issue is substantiated by the fact that “the image of law that has developed within the framework of a certain type of legal understanding becomes the basis for building a legal theory and the principle of cognition of all legal phenomena”, where one of the elements of the theory is legal influence as a theoretical construction. In turn, M.A. Kapustina, considering various aspects of the sphere of legal regulation, notes: “Depending on the answer to the question “What is a right?” jurists have different approaches to defining the scope of legal regulation, as well as to the problem of gaps in the law and the “blankness” of law.”

It is necessary to define the concepts of legal understanding, with the help of which it will be possible to trace the presence or absence of this relationship. Among the existing variety of types of legal understanding, it seems reasonable to dwell on three so-called classical types: natural, sociological and positivist (and its separate offshoot - normative).

Natural type of legal understanding and legal influence. According to the theory of natural law, true law is a set of natural human rights that are granted to him from birth: the right to life, freedom, equality, private property, to be happy, etc. Such a natural right is the highest, true and paramount; the law created by the state is derivative and should not contradict natural law. At the same time, “positive law, that is, the norms established by the state, is recognized as law only if it does not contradict natural law, that is, the universal principles of freedom, equality, justice for all people. The main postulate of the doctrine - the idea of the inalienability of the fundamental rights and freedoms of man and citizen, their priority - is the most important principle of a developed democratically oriented state. This concept consolidates, first of all, a value, or axiological, approach to law.

It should be noted that this theory does not offer any vision of the legal impact, based on the understanding of law proposed by it.

From the standpoint of formal logic, the definition of legal impact in the framework of natural law theory will look like in the following way: legal impact - the whole process of the influence of law (the totality of natural human rights that are granted to him from birth) on social life, consciousness and behavior of people. In other words, a certain system of natural human rights becomes the paramount regulator in society. The norms fixed by the state become secondary and will be included in the process of such legal influence only after they pass the test for compliance with natural law. However, this concept does not contain any objective criteria and a mechanism for such verification; it is also not clear who has the right to exercise it (i.e., the authorized subject is not designated). Thus, the legal impact and its vision, developed and established in Russian legal science and practice, within the framework of the natural type of legal understanding, will inevitably be a different form of social impact - the influence of the provisions of regulatory legal acts. Consequently, in the composition of social norms, with the help of which social management carries out social impact, will include the norms of natural law and the norms adopted by the state. This situation leads to an unnecessary and harmful opposition between the impact of natural law and the normative legal acts adopted by the state. At the same time, since the norms of natural law are primary and independent of the state, the latter will only influence through the provisions of the normative legal acts adopted by it. All this leads to the fact that public administration will not be considered as the highest form of social administration, since social administration appears in the form of the impact of natural law, which is primary in relation to the state. However, it remains open question, who becomes a subject in a state-organized society, which will be empowered to exercise legal influence in the sense of natural law theory, which is also primary in relation to the impact of regulatory legal acts? Within the framework of this concept, it is possible to assume that such a subject, apparently, will be the person himself, the bearer of these rights and freedoms. The choice of a single person as a subject of legal influence will allow the latter to exercise such influence without limit and ignore any norm adopted by the state as not corresponding to natural law. As a result, all this will lead to chaos and disorder in society.

Informational legal impact involves the movement of legal information.

In order for legal information to be able to influence the legal consciousness of people, its external expression is necessary. Within the framework of the theory under consideration, no answer is given to the question of where such legal information is uniquely located. If we assume that the information is contained in international declarations, then the following problem arises, which V.A. Tolstik: “Currently, there is a European and Islamic universal declaration of human rights and freedoms. At the same time, their ideas about rights and freedoms do not coincide. The Russian Federation is a multi-confessional state. The question arises: the provisions of which declaration should be used as a criterion of legal content? Thus, it is difficult to unambiguously determine what legal information is, where it is contained and how it is expressed.

Instead of the presumptions “ignorance of the law does not exempt from responsibility” and “the law does not oblige if it is not made public”, the presumption of information impact is the judgment that natural law is true and paramount in relation to the norms adopted by the state. This presumption, of course, entails negative consequences for public administration and society as a whole.

The mechanism of information impact also becomes very blurred, since it is not clear how such legal information is created and, accordingly, what to transmit, perceive and process, if it is not fixed what legal information is.

The mechanism of psychological influence, in turn, will not meet the purpose for which it was created - the purpose of the formation and implementation of motives for behavior prescribed or permitted by legal norms, since such norms are not defined in natural law.

The main element of the orientation impact of law are the values that are enshrined in law. However, within the framework of the theory of natural law, the question remains unanswered, how natural law is expressed, in which such values are enshrined, and how to evaluate the behavior of individuals for compliance with these values. The subject of orientation influence remains uncertain. Legal attitudes and legal orientations receive a different interpretation, which is generally harmful to society. The main content of legal attitudes and legal orientations is targeting people not to law-abiding behavior, but to provide a person at any time with the opportunity to evaluate the law on the quality of legal content and, in the absence of the latter, not to execute it. Thus, by and large, the attitudes in question will encourage illegal behavior and abuse. Also, within the framework of this concept, such a legal value as legality is not fixed and protected. The result of such an impact will undoubtedly be people's awareness of law as a value that allows breaking the law if it is not legal.

Legal regulation begins with law-making, that is, with the creation of legal norms. Within the framework of the concept of law understanding under consideration, the process of lawmaking is separated from the process of lawmaking, and lawmaking itself as such is absent, since natural rights have already been granted to a person from birth. If a certain process is possible here, it is only for the purpose of clarifying the understanding of such rights and expanding their list. Then questions arise: what does the process of lawmaking look like, what stages does it include, how is it carried out and who is the subject of lawmaking? Apparently, the process is chaotic, non-purposeful, developing historically, and the subject is any person. Presumably, the first element of the mechanism of legal regulation in the perspective of the theory under consideration will be a legal norm that contains natural human rights and may not coincide with the norm established by the state.

The second stage of legal regulation is the individualization of the rules of law on the basis of legal facts in relation to a particular situation by establishing a certain legal relationship between specific subjects of law. From the point of view of the theory of natural law, there is an individualization of norms containing natural rights and obligations based on legal facts. Legal facts - events, with the onset of which the rule of law connects the emergence of a legal relationship. According to this theory, it is not clear what legal facts can contain natural human rights, with the onset of which a legal relationship arises, that is, a relationship within the framework of law, in other words, a relationship within the framework of natural rights. It should be assumed that such legal facts can only be violations of natural human rights, entailing the emergence of a protective legal relationship, but the procedure for protecting rights and the composition of specific offenses are established by the state in its own rules, they from the standpoint of natural law theory may not meet the legal criterion. Thus, the natural type of legal understanding does not allow isolating legal facts, legal relations that could operate outside the law, and therefore does not allow the possibility of distinguishing other stages and elements of the mechanism of legal regulation that would exist outside the law. The only exception would be judicial enforcement (i.e., the application of natural rights) in the event of a violation of natural rights, but such judicial enforcement would be carried out by a court, i.e., a state body, according to the procedural rules established by the state. It follows from the foregoing that, within the framework of the theory of natural law, it is not possible to single out any independent process regulation with the help of natural law or legal regulation in the sense of this theory. Ultimately, such a process comes down to normative regulation carried out by the state, where, among other things, natural rights can be enshrined in normative legal acts (positive law) and protected in the manner established by the state.

It can be concluded that the construction of legal influence proposed by Russian legal science, within the framework of the natural theory of legal understanding, becomes an influence through the provisions of normative legal acts, and the construction of legal influence in the sense of such a concept of legal understanding becomes undeveloped, unviable and does not have independent significance.

Each of the concepts of legal understanding, as E.Yu. Taranchenko, "in addition to the immanent function of developing legal understanding - distinguishing law from all other phenomena and understanding it as the most important social phenomenon ... the desire to achieve some other social result is also inherent, therefore, not only the method, but also the purpose of construction determine their general direction." Based on this, the underdevelopment of the category of legal impact within the framework of the natural law concept is explained by the fact that the purpose of this concept was to show law as a social value that is inseparably linked with the personality of a person, his rights and freedoms, and not at all as a social regulator and one of the main instruments government controlled. Such a goal or direction of the theory of natural law is related to the fact that they "are of an ideological and political nature, this is a program for the transformation of the existing imperfect legal system." And also, as V.V. Lapaeva, "analysis world history shows that the study of the problems of natural law becomes most intense in times of crisis, conflicts between existing law and innovative tendencies and aspirations. In times of great reforms and especially revolutions, natural law has always played an essential role.

Sociological type of legal understanding and legal influence. From the standpoint of the sociological approach, law is understood not as a positive law established by the state, but as a “living law”, that is, actual social relations that have developed in society, legal actions of the parties. This type of legal understanding analyzes law primarily in dynamics, it is the implementation of law that is of interest, and not the normative instructions of the state. It should be clarified that, according to certain areas or branches of the sociological type of legal understanding, law could be understood as “actual norms that determine the internal order of human unions (“living law” by E. Erlich), ideas about “living law” that have developed in the legal consciousness of the judiciary ( R. Pound and other representatives of American sociological jurisprudence, the “school of realists”), a form of integration of various communities based on “social power” (“social law” by J. Gurvich), a legally protected order of social relations (S.A. Muromtsev), form of delimitation of social interests (N.M. Korkunov), etc.” As can be seen, even within the present type of legal understanding, there are different views on the definition of what is law. However, in order to determine the structure of legal influence from the point of view of the sociological type of legal understanding, one should nevertheless make a certain generalization and indicate what law is in the sense of such legal understanding.

Law is primarily understood as the real order that exists in society, and in other words, "the totality of social relations that ensure stability and order in society and are recognized by the main part of the population as legitimate, regardless of what is prescribed by positive law." As indicated in the legal literature, “the sociological theory is characterized by: a functional approach to law; allocation of legal relations as the main, most essential elements of law; “irreducibility” of law to law”.

A special role within the framework of this theory is assigned to the courts, which are endowed with a law-making function and in fact “create” law, based on the ideas that exist in society about justice and due. The law and the acts of the courts correlate as follows: “the courts and administrators themselves establish the law ... the law is a collection of largely “volitional”, but far from always justified and fair norms of yesterday. Consequently, the law must be sought not so much in legal sources as in life itself, although taking into account the current legislation. The main thing is not the “letter”, but the “spirit” of the law. The highest good is not formal legality, but goodness and justice. It is important to know not only the law, but also the law.”

There has not been any independent vision of the process of legal influence in this type of legal understanding. The study of law in action as a fact of the prevailing social reality involves an analysis of only existing social norms and social relations, which excludes the study of such issues as determining the goals and objectives of legal influence, identifying social relations that are subject to legal influence, etc. In connection with With the foregoing, as in relation to natural law theory, we will consider the process of legal influence developed by legal science from the standpoint of the sociological type of legal understanding.

Within the framework of the sociological school of law, legal influence can be defined as the entire process of the influence of law, i.e., actual social relations recognized as legitimate by the main part of the population, on social life, consciousness and behavior of people. That is, social relations are present both in the subject of influence and in its object. If we try to distinguish some relations (subject of influence) from others (object), it turns out that part of the relations, due to their systemic nature and repetition, are perceived by the population as an actual norm, as the correct and usual "order of things", as a custom. Such relations are the regulator of other relations that actually develop between people, that is, the latter are evaluated for compliance with the former. From the presented reasoning, it can be seen that it is very difficult to separate the subject of legal influence from its object.

However, if the above difference is considered necessary and sufficient, then the following problem arises, about which V.V. Lapaeva: how to designate and develop “criteria by which it would be possible to determine which social norms that have developed in the form of custom are of a legal nature and can be considered as a source of law, and which belong to the sphere of morality, religion, business habits, etc. ."

When trying to designate the structure of legal influence from the point of view of sociological legal understanding, it is necessary to determine the subject of legal influence. Apparently, the courts that “create” the law will be such a subject. In such a construction, the state, represented by the legislator, does not establish law, but formulates only normative legal acts, which, in the sense of this legal understanding, are not yet law. This inevitably entails the isolation of such forms of social impact as legal impact and the impact of regulatory legal acts. The negative consequences of such a division were mentioned above.

It is necessary to define the concept of legal information, which will include information about the actual social norms contained primarily in court decisions.

The purpose of information influence is to convey legal information to the object of legal influence. It should be assumed that such an impact should be purposeful and direct. However, it is not clear how the courts (their main function is to decide cases) will exercise such influence purposefully. It is possible to speak only about the indirect informational legal impact that will be carried out at the time of the consideration of the case and the decision of the court. Thus, the need to highlight the information impact is lost, and it is difficult to identify the mechanism of such impact.

Within the framework of the mechanism of the psychological impact of law, a problem will inevitably arise on the scale of the whole society, which legal guidelines and restrictions to follow: those contained in the law, or actually established.

The orientational impact of law will certainly indicate the values actually perceived by society, since law is a fact. social life. However, what these values are, most likely, will be established by the court, “creating” the law, making decisions on the case. Determining the values that operate in society is not the purpose of the court. Consequently, the choice and consolidation of values are carried out indirectly through decisions that are made by each judge at his own judicial discretion. At the same time, there are no guarantees and mechanisms that prohibit the court from protecting values that are contrary to the values enshrined in the law, since the law is due, and the law is a being that meets the requirements of reality. Moreover, there is a high probability of abuse by judges. Moreover, the values recognized by a court will not necessarily be exactly the same in different courts. As a result, the process of recognition of certain values on the scale of the whole society will be mediated, non-targeted and fragmented, which leads to the absence of a system of common values at the level of the whole society. Legality and respect for law as private legal values will be opposed, priority will be given to the latter value, which is not a positive factor in the management of society.

Law-making as the first stage of legal regulation within the framework of the sociological type of legal understanding does not coincide with law-making. On the one hand, the legislator determines the social relations that are subject to settlement, and on the other hand, the court, when deciding on a specific case, “creates” true law, without determining which social relations are in principle subject to settlement. The rule of law is the starting point for the court when considering a case. Within the framework of such a judicial review, two processes coincide: the application of the law and lawmaking in the sense of the sociological school of legal understanding. Thus, on the one hand, within the framework of regulation with the help of normative legal acts, the fourth stage of regulation takes place - the application of the law, on the other hand, the first and fourth stages are carried out - law-making and the application of the provisions of law (actual social norms).

The second stage of legal regulation is the emergence of legal relations based on legal facts. The totality of legal facts within the framework of the sociological type of legal understanding is presented not only in the law, but also in judicial practice, and in actual social norms, and in the most real order. From such a totality, it becomes very difficult to distinguish legal facts from other facts of social reality. The legal relationship that arises within the framework of this stage is at the same time an element of law, which leads to difficulty in distinguishing between concepts. There is a coincidence of such phenomena as law and its action, i.e., relations that develop on the basis of and within the law.

The third stage of legal regulation is the realization of rights and obligations within the framework of legal relations. The content of this stage, from the point of view of the sociological type of legal understanding, coincides with its traditional understanding.

Thus, from the standpoint of the sociological type of legal understanding, the construction of the legal impact developed by Russian legal science is the impact of regulatory legal acts, and the legal impact from the point of view of this type of legal understanding is filled with a different content. In such a legal impact, the information and orientation impact, if carried out, is indirect, and the process of legal regulation, in fact, is a process of implementing the law, in which the courts apply laws, create and apply “living” law.

Positivist (normative) type of legal understanding and legal influence. From the point of view of the positivist type of legal thinking, law is a system of universally binding, formally defined rules of conduct that come from the state and are provided by the power of state coercion. Law is a system of rules.

With this understanding of law, the legal impact developed by Russian legal science remains a legal impact. The structure of legal influence discussed above convincingly proves this. Indeed, the legal impact is the whole process of the influence of law, that is, the system of norms, on the consciousness, behavior and social relations of people. The main subject of such influence is the state, where legal influence is one of the forms of social, and above all state, management.

Consequently, the structure and content of the legal impact, developed and established in Russian legal science and practice, are based and built on the positivist (normative) type of legal understanding.

Attention should be paid to the fact that the developers or authors of one or another modern concept of legal understanding, different from the positivist one, indicating their understanding of law (i.e., outside the positivist interpretation), as a rule, consider and reveal the process of legal influence in its traditional sense , i.e. in the sense based on the positivist (normative) type of legal understanding. So, R.A. Romashov is the author of realistic positivism (law is understood only as such a regulatory and protective system, the norms of which are generally valid and have a productive impact on social relations, i.e., law in the formal legal sense (a set of formal sources) and law in the functional sense are distinguished, i.e. in the sense of this theory (it consists of legal norms, social relations, the regulation of which the norms are aimed at, guarantees of implementation and results achieved through legal influence)) - defines the legal impact as the effective influence of the formal legal source of law on the behavior of individual and collective subjects, and legal regulation - as a process involving direct (active) legal impact on legally significant social relations. However, no clear distinction has been made between legal action and regulation within the framework of this theory. The main distinction is built on the views of A.V. Malko, who understands law as "a set of generally binding, formally defined norms emanating from the state, expressing the ideas of freedom, justice, humanism, morality, human rights and designed to regulate the behavior of people and their teams in order to ensure the stable functioning and development of society." In other words, within the framework of realistic positivism, the difference between legal influence and regulation is built on the views of a scientist who considers legal understanding from the standpoint of a normative approach. Any different vision of the stages or stages of legal regulation within the framework of the theory under consideration is also not proposed. This concept actually combined the already known stages of legal regulation into more general ones. R.A. Romashov names the following stages of legal regulation: the first stage is preparatory (“reunification” of the rules of law, subjects of law and legal facts); the second stage is the transformation of existing social relations with the help of legal norms, which is clothed in the form legal relations; third stage - legal registration results obtained in the course of regulatory activities. As can be seen, the preparatory stage corresponds to the first and second stages of legal regulation in their traditional sense (the stages of regulation of social relations and the emergence of legal relations based on legal facts); the second stage - the third stage (the stage of realization of the right); the third stage is the result of legal regulation (the orderliness of social relations and the lawful behavior of subjects). Thus, the author of this concept actually considers the legal impact from the standpoint of understanding law in the formal legal sense (normative approach to law), and not in the functional sense, i.e., not in the sense of the theory he proposed.

Bibliography

1 Taranchenko E.Yu. Legal understanding in the post-Soviet era: a review of the main concepts [Electronic resource] // www.kodeks. ru/noframe/free-urbib?d&nd=722900370&nh=1 (2008. July 10). See also: Mozolin V.P. The system of Russian law (report at the All-Russian Conference November 14, 2001) // State and Law. 2003. No. 1. P. 108.

2 Kapustina M.A. Legal regulation in society: mechanism, sphere of influence // Law and society: from conflict to consensus: Monograph. / Under the total. ed. V.P. Salnikova, R.A. Romashov. - SPb., 2004. S. 110.

3 Theory of state and law: Proc. for legal universities / Ed. A.S. Pigolkin. - M., 2003. S. 41.

4 Tolstik V.A. From Pluralism of Legal Understanding to the Struggle for the Content of Law // State and Law. 2004. No. 9. P. 18. See also the discussion on human rights in non-Muslim and Muslim states: Ferguson G. Human Rights in the Muslim World and International Standards // Human Rights: Theory and Practice: Sat. scientific tr. / Ed. G.I. Kurdyukova, P.A. Kabanova. - Nizhnekamsk, 2002. S. 137-144.

5 Taranchenko E.Yu. Decree. slave.

6 Martyshin O.V. Are the main types of understanding of law compatible? // State and law. 2003. No. 6. P. 19.

7 Lapaeva V.V. Different types of legal understanding: analysis of scientific and practical potential // Legislation and Economics. 2006. No. 4. P. 21. See also: Leist O.E. Three concepts of law // Soviet state and law. 1991. No. 12. S. 7; Minniakhmetov R.G. Once again about the relationship between law and the state // Law and Politics. 2005. No. 3. S. 8.

8 Ibid. S. 20.

9 Doroshkov V.V., Kuzko A.V. Information and psychological aspects of the development of legal consciousness of municipal employees // Information law. 2007. No. 1. S. 12.

10 Theory of State and Law / Ed. A.S. Pigolkin. S. 40.

11 Ibid. S. 137.

12 Lapaeva V.V. Decree. op. S. 20.

13 See: Romashov R.A. Theory of Government and Rights. - SPb., 2006. S. 121-122.

14 Ibid. pp. 217, 219.

15 Matuzov N.I., Malko A.V. Theory of State and Law: Proc. - M., 2004. S. 66.

16 See: Romashov R.A. Decree. op. pp. 220, 221.

17 Without analyzing in detail each of the modern concepts, it should be said that a similar trend (consideration of the legal impact in its traditional sense) is also noted by other authors. For example, in the communicative concept of law, the author of which is A.V. Polyakov. See: Polyakov A.V. General Theory of Law: Problems of Interpretation in the Context of the Communicative Approach: A Course of Lectures. - SPb., 2004. S. 632-643.

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As we have already said, the problem of the typology of legal understanding is quite complex and does not have an unambiguous solution today. At the same time, in order to simplify the cognitive process, the authors consider it appropriate to focus on the most common version of the typology, where the types of legal understanding are systematized in accordance with the main scientific approaches: normative, sociological and natural law.

Right, according to normative approach , is a regulator of social relations, which is a system of obligatory, formally defined norms that express the state will (class or nationwide), which are established, sanctioned and protected from violations by the state.

The norms of law are considered as a kind of rule, a model of proper behavior, they “fix not what is, but what should be. Norms cannot be true or false. They do not possess the characteristics of truth and falsity. From the point of view of normative legal understanding, law is the materialized will of the state power and has a character derived from the state. There is no other right than a system of normative attitudes based on the state. In turn, the compulsion of legal norms does not stem from morality, but from state coercion that ensures legal prescriptions.

Right, according to sociological approach , is a set of rules of conduct that arise and acquire a generally significant character not by the will of the state, but by virtue of the objective laws of social development. The state, taking care of the preservation and dynamic development of society, endows with legal force (provides a system of legal guarantees and sanctions) the rules already established in society, which, due to their social usefulness, are recognized as useful for the state.

In addition, the sociological approach to legal understanding assumes that law acquires its actual (legal) significance only if it is implemented, and if so, then law is not only a set of documents containing legal prescriptions, but also the relations themselves, these regulated by regulations. In other words, within the framework of the sociological approach, law is an inseparable set of legal norms and legal relations regulated by these norms.

As part of natural law approach substantiates the existence of two systems of law - natural and positive law. Positive, or positive, law is an officially recognized law that operates within the borders of a particular state, which is expressed in laws and other legal acts of state power. Natural law, unlike positive law, springs from the nature of human reason and universal moral principles. Therefore, it is reasonable and fair, not bound by the borders of individual states, and extends to all times and peoples. In other words, natural law is a kind of ideal image to which one should aspire. As G. F. Shershenevich rightly noted in this regard: “The name “right” is given to the ideal, to which the real concept corresponds, and by constantly combining the word and concept, the mind gets used to giving the ideal the reality that is connected with the name.”

The structure of natural law is formed by the innate, inalienable human rights that nature gives him and "on the way of the implementation of which in the state of nature there is no barrier." The natural rights of a person are derived from his vitality, which, "egocentrically oriented, sees its main task in defensive-aggressive and reproductive activity, ensuring the survival of the individual and the continuation of the race." The natural and inalienable human rights, first of all, include: the right to life, liberty, equality, procreation, etc. Observance of these rights is a criterion of justice, and therefore their protection is the goal of the state. In turn, positive law, which contradicts the requirements of natural law, must be replaced by such positive law, which would be based on natural laws, would contribute to the practical implementation of the ideas and principles of natural law.

But full unconditional observance of natural human rights, and, accordingly, the coincidence of natural and positive law is possible only in the ideal. Therefore, characterizing the natural legal type of legal understanding, one should agree with the point of view of A. V. Polyakov, according to which “all attempts to revive the idea of natural law in Russian jurisprudence (and even in an archaic form characteristic of the 18 is only a declaration of certain ideological ideas, and not a scientific theory, and is revealingly powerless precisely in the scientific evidence aspect. The task of theoretical jurisprudence today is not to explain what law should be and make people believe in specific legal ideals (this is one of the goals of legal policy), but to show what law is, to reveal its ontological structure and meaning. .

Trade unions have the right to exercise control over compliance by employers and their representatives labor law and other normative legal acts containing labor law norms, their fulfillment of the terms of collective agreements, agreements.