CC BY
146JURISPRUDENCE: PRESENTATION OF A TEXTBOOK
FEATURES OF LAW
Abstract.
Keywords:
DOI: http://dx.doi.org/10.14420/en.2014.1.9
Svetlana Boshno, Doctor of Juridical Science, Professor and Head of the Political Science and Law Department of the Russian Academy of National Economy and Public Administration, e-mail: boshno@yandex.ru.
The article discusses the signs of law allowing to understand the law as a particular kind of social regulation. An important feature of the law is certainty, which creates conditions for a uniform understanding and application of law. The article describes the linguistic techniques that create preconditions for the formal certainty of the law: accuracy, clarity, simplicity, uniformity of terminology. The sociality of the law emphasizes that the law governs only relations between people who have the will and consciousness. The process of creating a law has peculiarities. Compliance with the procedural rules of law making is essential for the validity of law. Of great importance is the normativity of law. The feature combines non-personification of the addressee, universality and general obligation. Such signs of the law as stability and dynamism are considered in the unity. The article will be included into the textbook «Jurisprudence».
signs of law, features of law, normativity, universality, nonpersonification, general obligation, the social value of law, the formal certainty, legalese, stability of the law, the dynamism of the law, written law, the form of law, regulation, corruption.
Law is an important version of regulators of public relations. Law exists in different forms: regulations, precedent, custom, doctrinal and other forms of law. Each form of law has specific characteristics, but there are common ones. We consider those signs that characterize the essence of law, its social value and purpose. Of great importance are those signs of law that allow to select it as a special regulatory system that is different from morality and religion.
1. Certainty of law is connected with special requirements to the outer shell, the form of expression. Legal rules, as a rule, are fixed in writing in the
special form: laws, precedents, etc.
Formal certainty of the law is achieved by special legalese. Using the language techniques the law affects the will and consciousness of the people. The language serves as a means of conveying information about the content of the legal provisions. Linguistic embodiment of normative legal act gives integrity to the will of the legislator, completeness of the form, provides comforts for study and application. Normative legal act is a written literary work, and it has the same requirements as any other work of book writing. In addition, regulation is one of the subspecies of official-business works together with other acts and documents having legal significance.
In the presentation of a legal thought in the form of legislative regulation language techniques are used which have been developed specifically for this sphere of law-making, i.e. that are employed primarily or even exclusively in this area. It gives grounds to distinguish the language of the legislation as an independent style of literary language, which is caused by special social challenges facing the law, with specific way to display a subject and is characterized by specific compositional and stylistic means, special vocabulary of the language to express thoughts of the legislator.
The most striking features of the language of the law are the following:
- official character, documentation of external language expression of an idea of
the legislator;
- its clarity and simplicity;
- the maximal accuracy of expression.
Legal guideline should be clear to legal subjects and accurately formulate allowed (forbidden) behavior. On the uncertainty of the law, difference in understanding and applying the law indicates.
Formal certainty of norms of the law is the requirement of anti-corruption legislation. The uncertain legal guideline creates preconditions for corruption, as it is impossible to formulate precisely the rights and obligations of the parties. The official may arbitrarily interpret the responsibilities of a citizen in order to extort a bribe from him. Anti-corruption expertise of normative legal acts is designed to prevent this defect of legislation.
2. Sociality. Law regulates only social relations, i.e. relations between people, groups of people, large social communities (people, nation). Animals cannot be participants of legal relationships. The Russian legislation classifies them as objects of law (animate things). Law does not regulate subjects of the material world, but it regulates people's behavior on subjects.
Natural phenomena in general are not subject to the law, it does not regulate them. All attempts of law to interfere into the natural world is doomed to failure. Thus, law cannot dictate to the sun, when and which side to rise in the morning. But it can make people to get up at the time that the legislator establishes (changes) in accordance with its interests. For example, when moving from summer to winter it gets dark earlier and earlier, and time is changed by the law. More precisely, not time, but its outward expression - watches that express time for people. These measures can only partially solve state problems, since the root of this problem is not subordinate to the legislator - he does not direct the sun. And it would be desirable.
3. Procedural. Law as a system of rules includes clear procedures for
their creation, implementation, protection. Procedural rules, procedural order -typical signs of law that define the relationship with the state apparatus, especially with the lawmaking bodies. Law in the form of a normative legal act is created by authorized government bodies in the lawmaking process. Modern rule of law takes the form of a law, which is created as a result of a complex and lengthy procedure of lawmaking.
Absence of a lawmaking procedure is essential defect, negatively affects the application of the legislation. For the validity (including constitutionality) of the normative legal act it matters a compliance with the procedure for its creation. Violations of the lawmaking procedure can lead to challenging in court and subsequent ban to apply the document. Clearly stated legislative procedure and its observance is guarantee of quality and long-term application.
Lawmaking is carried out by authorized persons and bodies. Legal acts are the result of lawmaking. Other forms of law can occur without special procedures. Thus, for example, a custom does not have a procedure for its creation. Custom is formed and crystallized by repeating socially-useful approved rules. Public authorities are not involved in this process. State recognizes the emerging rules of behavior (customs) by authorization.
4. Normativity means that the law is a system of rules (rules of conduct), characterized by a certain logical structure ('if ... then ... else ...’), setting scale, measures of behavior. Law defines the boundaries, scope of what is permitted, prohibited, prescribed behavior.
Normativity consists of universality, general compulsion and nonpersonification.
Universality of law means that it is through its documentary form is capable of doing this or that general rules binding for all in the state, in a particular area. In other words, it cannot be issued in the form of law guidelines of single use or addressed to a particular person or specific life situation. Law should be the measure of freedom to a large number of subjects. Addressees of legal norms may be, for example, citizens of the Russian state, as well as everyone who is present in its territory. Legal guidelines can target large groups selected for various reasons (age, sex, occupation, etc.). Thus, groups may consist of women, pensioners, military people, etc.
Normativity also means that legal acts are valid for a long time, and they are not associated with a specific fact, attitude, subject. Despite the fact that the specific relations emerge, evolve and dissolve, legal acts retain their content and do not undergo any changes. Normativity means that the act is retained regardless of whether it has been applied or not. So, there are documents that are adopted in order to ensure that their rules are translated into behavior (for example, Civil Code of the Russian Federation), and there are documents adopted in order to never be used (for example, the Criminal Code of the Russian Federation). But regardless of whether or not the document is in use or not and how intensive it is used, it continues to operate. Only cancellation of a legal act or publication of another act on the same subject, but with different content terminates the validity of the law.
Legal provisions are compulsory. They spread their equal impact on different individuals. Be bound by the rule of law is provided by the opportunity to state coercion, that is, they are endowed with not only an ideological mechanism
(authority, justice, religious support), but also with the possibility of occurrence of adverse consequences, having the character of the property infringements, physical, mental suffering, when they are violated. Law is valid and applied regardless of whether the subject of the law knew about its existence or not. The overall obligation is implemented in life by the principle of equality of all before the law and the court. Ideally, the application of the legislation should not be affected by property and official status of the offender and the other subject of law. Thanks to this principle, law can perform important social functions, in particular, to ensure the equality of all persons before the law and the court.
Modern democratic states one of their conceptual slogans proclaim equality from a legal standpoint. There are other guarantees of equality: gender, religious. Citizen’s political views should not affect the application of the law. All guarantees of equality before the law are relevant to democratic states.
Rules of law dividing society into groups through ownership, social origin are known to the history of law and government. Formally democratic states consolidate overall obligation of rules. But known to a society cases of avoiding legal liability of senior officials destroy the legal culture and deform legal consciousness of society, destroy the normativity of law.
Non-personification of law is one of the faces of normativity. Guidelines of the legislation do not have specifically defined, individual, personified addressee, but are intended for unlimited, abstract group of persons. If a particular person occurs under conditions stipulated by the structure of the relevant rule, and then, it turns out to be the addressee of the norm. With this feature, it is linked the proliferation of validity of the law, its length in time.
5. Guarantee by power (authority). Execution of legal norms is guaranteed by the authority of the entity or person who has issued them. Doctrine, religious texts, customs, and other forms of law have no definite force in the form of the army and prisons, but still very effective. Normative legal acts have completely different guarantee of performance. The power of the authority or the authority of force - in this well-known formula it is enshrined confrontation of law in the form of a normative legal act and other forms of law.
6. An important feature of positive law is the protection by the state, which supports the law with its authority and coercive power. Not all the rules of law are respected and enforced exclusively voluntarily, by the internal beliefs. Part of the population is subject to the requirements of guidelines simply because it fears application of government sanctions. Protection of legal norms includes state coercion, various organizational, technical and educational, preventive (precautionary) measures of authorities on compliance with and enforcement of legal norms by citizens. These measures help to stabilize the legal order in society.
7. Written and unwritten law. Sign of writing characterizes the law as
institutional formation, because this sign defines the law as a phenomenon having external forms of expression and internal structure.
Thanks to a written form, the law is contained, passed. Written form provides accessibility, sustainability of the law.
Reflection of the written form is the requirement to publish normative legal acts. It is a constitutional requirement. In accordance with Article 15 of the Constitution of the Russian Federation laws shall be published. Unpublished
laws shall not be applied. Regulatory legal acts issued by the President of the Russian Federation, the Government of the Russian Federation, federal bodies of executive power, are subject to official publication, if they affect the rights and freedoms of citizens, or are of interdepartmental nature. Guarantee of issuance of the legal normative acts permits a state to apply the principle of «ignorance of the law is no excuse». Normative legal acts are officially published in newspapers («The Parliamentary Newspaper», «Rossiyskaya Gazeta»), journal («Collection of Laws of the Russian Federation»), and posted on the official legal portal www.pravo.gov.ru.
8. Systematicity of law means that rules of the law in order to perform its functions constitute a mutually agreed-related system. Legislator, securing in guidelines new legal norms must harmonize them with existing rules. Only systematic, consistent, officially existing law can fulfill tasks facing it. Effectiveness of the law is in direct proportion from its systematicity. The systematicity of law is an internal device of law, its division into the industry, institutions and the rule of law. Systematicity of law means absence of contradictions between rules of law.
9. Dynamism of law is manifested in mobility, the possibility of rapid changes in legislative provisions. Most clearly this feature of law is manifested during the tumultuous socio-economic and political transformation. It is at this time outdated normative legal acts are intensively changed and discarded, new ones are actively developed and adopted. Dynamism can enter into some contradiction with the requirement of stability of law. However, this requirement shall not impede the progressive development of the law. Thus, the law must combine two features: dynamism and stability.
10. Stability of the law is that the law contains stable, almost unchanged guidlines, based on the fundamental moral and religious postulates. Long existing stable legislation has a positive impact on civil society, the legal culture and legal consciousness. Citizens do not read regulations constantly, as it is a complex, extensive system, outlined by the specific language. Real effective action of a legal act requires quite a long time to prepare society (from 3 up to 6 months). Then citizens need time to get used to a new legal regulation. Effective is the usual legislation that is assimilated by citizens. In such a situation, compliance with legislation becomes habitual. However, stability should not escalate into conservatism, stagnancy. Legislation should be developed, measuredly and accurately respond to new challenges and needs of society.
References
1. Lanovaya G.M. Distinctive signs of modern law // Law and Education. -2011. - No 5. - PP. 70-76.
