CC BY
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Section 14. Science of law
Petrov Dmitriy Evgenyevich, Saratov State Law Academy, Associate Professor at the Department of Theory of State and Law, Candidate of Legal Sciences
E-mail: dpetrov.saratov@mail.ru
Categories «differentiation» and «integration» in modern legal science
Abstract: The article considers general scientific and methodological basics of the research of categories «differentiation» and «integration» in the conceptual framework of legal science. Special attention is paid to the feasibility of the need of perception of «differentiation» and «integration» as a categorical pair.
Keywords: differentiation of law, integration of law, legal system, legal categories, methodology of law.
In modern legal science the tendency of managing the notions and categories expressing these or those ties and relations in the legal reality is strengthening. They include the notions of management, organization, system, mechanism, structure, tie, relation etc. [2, 44]. It should be highlighted that to reflect such phenomena and social processes as functions, good organization and systematic nature in theory, substrate notions exclusively creating the picture of «morphology» of an object and its composition do not fit methodologically. The analysis of the simplest interactions in the legal sphere of the society shows the need for another conceptual framework; and when the study of systematic legal objects becomes the object of learning, then, it becomes possible to reflect their structure, dynamic of development and functioning in theory through combination of appropriate scientific means.
Such general scientific means should include the categorical pair «integration — differentiation». Let’s agree with I. V Blauberg and E. G. Yudin that «objects of the modern scientific learning require not just an extension of existing conceptual framework, but a new categorical structure, a new system of notions» [2, 44]. However, since the need for such system exists in legal studies, then, undoubtedly, it finds its partial satisfaction. New notions in legal studies are aimed at solving tasks of a qualitatively new type neighboring the conventional categorical framework in science.
When studying the systematic nature of legal norms, one should take into consideration that such quality is given to them by functional «labor division» between them, their functional specialization. This quality presupposes not so much the reference of the norms to different parts of law as their relation with other norms of a respective institution, norms of other institutions and branches of law and their interaction in the process of regulation of social relations [8, 50]. This provision certifies about dialectic connection of the processes of differentiation and integration of legal matter. Differentiating functionally, legal norms create a base for their future integration within the institutions and branches of law as well as ensure inter-branch integration.
The specified initial methodological orientations enable to state that one of the most important moments in the study of the processes of differentiation and integration in law is their analysis at different «stages», levels of law system structure.
Such formally logical way as classification traditionally used in general theoretical description of legal phenomena does not solve a research task on level analysis of legal system. The study of systematic parameters of complex objects does not require the consideration of all possible variants and criteria for classification, be it the systems themselves, their structural elements or processes taking place in them. In similar situations, one should apply a special type of classification — a typology, which is performed according to a more substantial parameter revealing the deep processes of a reflected phenomenon. When studying the legal system, it is required to identify the types of the processes of differentiation and integration in law and, respectively, analyze them at different levels — at initial (elementary) level, institutional and branch-specific ones. Simple classification of types of differentiation and integration in law, despite the possibility to distinguish a considerable number of its criteria, does not allow taking into account the structural complexity of law as well as dialectics of internal and external factors determining the considered processes.
Determination of system-integrating and system-differentiating factors, their correlations and interrelations, is the most important methodological task of the structural analysis of a complex system and is a necessary condition of not just a descriptive reflection, but a constructive, explanatory study of the legal system in the form of its essential analysis and forecast of development ultimately related with modernization of legislation and improvement of law enforcement practice. «Establishment of factors forming and destroying the system is a primary point of the systematic analysis, — V. A. Ganzen reckoned. — The next step lies in definition of functions and structures... after which states and processes, properties and behavior of the system are studied» [3, 161].
Today, we can acknowledge that the categories of «differentiation» and «integration» in the methodology of science are given a special place in general theoretical description of the system of modern society. Positive experience of managing the specified notions accumulated by the methodology of science should find its use in legal studies, particularly, in the researches of the legal system. Nevertheless, it would seem that legal science should not uncritically borrow ready general scientific knowledge and it has no right to «dress» already known theoretical legal provisions about legal system into
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Categories «differentiation» and «integration» in modern legal science
«new» methodological «forms». The categories « differentiation» and «integration» used in the general theory of systems and the humanities should receive their appropriate deflection in legal studies with consideration of the specific of state legal sphere of life of the society. A fairly concrete new knowledge about the structure of legal system and processes taking place in it should be obtained, and new regularities of distinguishing structural formations, elements in law should be revealed through implementation of new constructions in the conceptual frames of the general theory of law.
The more detailed comparison is performed on systematic formations, the more differences will be between them. Dissimilarity of elements of the legal system is determined by inhomogeneity of internal and external environment. External environment is understood in this case as the system of social relations, which didn’t only once gave birth to the need for law as a special regulation tool, but continues having a determining influence on it throughout its all history. The very diversity of existing social relations and ties is one of the driving reasons of differentiation of norms, institutions, branches and other structural communities in law.
Due to appropriate level of the processes of differentiation and integration in the legal system, it is possible to ensure such important properties and parameters as regulatory ability; resistance to external changing effects (adaptation flexibility) and capability of development. «A high level of diversity of structural components of the system, and abundance of degrees of freedom in many elements of it determine flexibility, mobility, adaptability, recoverability and, consequently, sustainability... Structural diversity is a reserve of life; it creates channels of correction of the kinds, ways for retreat, i. e. it performs a function of accumulation of exits from extreme situations» [7, 120].
A part of the legal system that changes at a certain stage of development, with time, differs more and more from other parts, which are more stable at the moment. The increase of discrepancy between separate structural elements oflaw means either the beginning of a new cycle of the process of differentiation in the system or integration of its structural elements. A positive moment of the considered process lies in the fact that it «apparently improves the process of legal regulation contributing to the scope of heterogeneous relations and penetration in their essence» [2, 46].
In spite of the scale and relevance of the processes of differentiation and integration in the legal system, legal scientists
mention them, as a rule, generally and talk about the problems of specialization of legislation on the occasions of discussion of the issues of law division into branches, sometimes, without making a clear distinction between these scientific abstractions [1, 53; 5, 167; 6, 51].
The conducted analysis of use of the categories «differentiation» and «integration» in legal science and the humanities in the whole doesn’t only show some positive «shifts» in the solution of problems of theoretical learning of complex social systems, but also reveals the prospects of further development of this abstraction in the conceptual range of the general theory of law. Unfortunately, despite the nature of the most important methodological constructs of a systematic approach, the categories «differentiation» and «integration» did not receive solid development in legal science. Often, in the context of learning general issues of the systematic composition of law, scientists restrict themselves to consideration of the problem of its branch structure, description of the notion and classification of law institutions. The processes of fragmentation and unification of the legal system into parts are sometimes performed with the use of subjectively selected criteria without the support of methodological base and consideration of objectively existing regularities.
In conclusion, it should be emphasized once again that it is methodologically correct to view law as not just a simple system, but as a complex highly-organized system consisting of several subsystems that form a certain hierarchy. On the assumption of applied tasks solved by legal science, the legal system is a set of the following structural elements: legal norms, law institutions (sub-institutions) and branches (sub-branches). The legal system, as it was fairly noted by D. A. Kerimov, is not just a combination of subsystems, but a system of subsystems on the basis of and within which the hierarchy of private systems «creating a slim building of legal systemacity: from the base (the system of diverse legal norms) through intermediate «floors» (the system of institutions and branches of law) is formed» [4, 253]. Only based on such methodological positions, it is possible to find the whole sum of general regularities in theory, which explain the establishment of a balanced state of differentiation and integration as two the most important tendencies of law development.
References:
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