CC BY
52
Section 5. Theory and history of state and law
Section 5. Theory and history of state and law
Petrov Dmitrii Evgenievich, Federal State Budget Educational Institution of Higher Professional Education «Saratov State Law Academy», Saratov, Russia, Candidate of Legal Sciences, Associate Professor of the Department of Theory of State and Law E-mail: dpetrov.saratov@mail.ru
Interrelation of differentiation and integration in the system of law
Abstract: The article discusses the scientific and methodological foundations of the study of categories of «differentiation» and «integration» in the conceptual framework of legal science. The unity and interrelation of the processes of differentiation and integration in the law, the necessity of application of differentiation and integration in the research of the system of law are explored.
Keywords: legal system, differentiation of law, integration in law, paired legal categories, methodology of legal science.
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. [1, 44]. This alternation corresponds to the shift of emphasis on the problems of synthesis and the change of a type of subject content of state-legal studies caused by it. 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 ofnotions » [1, 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.
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 ofmanaging the specified notions accumulated by the methodology of science should find its use in legal studies, particularly, in the researches ofthe Russian law. 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 «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 oflegal system and processes taking place in it should be obtained, and new regularities of distinguishing structural formations,
20
Interrelation of differentiation and integration in the system of law
elements in law should be revealed through implementation of new constructions in the conceptual frames of the general theory of law.
The simplest example of differentiation is an appearance of a new kind of legal norms and of integration is a unification of a range of norms into a unified complex, an institute of law. In other words, the result of differentiation can be both, full autonomy of the differentiated parts in the structure of law and establishment of new interrelations between them at the expense of integration processes, i. e. complication of the legal system. It should be specified that differentiation and integration in law also have more complex forms of their manifestation. Complex forms of differentiation and integration imply the acquisition of new properties, qualities by the system, definition of subsystems in its structure etc.
One of the drawbacks of the traditional theory of structure ofthe legal system is the underestimation of the value of unity and interrelation of the processes of integration and differentiation in law. Thus, the fact that the process of formation of the branch of law is accompanied simultaneously by the differentiation of the system at one level (branch level) and integration at the other (between different institutes of law and other legal entities) is not taken into consideration. Consequently, differentiation in the legal system doesn’t contradict and is dialectically interdependent with integration oflegal norms and institutes [2, 54].
There are no two absolutely similar legal entities (unifications of legal norms or institutes) in the structure of the Russian law. Herewith, the more detailed comparison is performed for system-related formations, the more differences between them are found. 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 give birth to the need for law as a special regulation tool, but continues having a determining influence on it throughout its entire 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 Russian 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 offreedom in many elements of it determine flexibility, mobility, adaptability, recoverability and, consequently, sustainability... Structural diversity is a reserve of life; it creates channels ofcorrection ofthe kinds, ways for retreat, i. e. it performs a function of accumulation of exits from extreme situations» [3, 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, and becomes the center of different reactions to the effects of external environment, which implies the increase of the diversity of existing forces and results. 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 ofthe considered process lies in the fact that it «apparently improves the process oflegal regulation, enhances its effectiveness contributing to the scope of heterogeneous relations and penetration in their essence» [4, 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 or discussing the issues of law division into branches and problems of specialization of legislation, sometimes, without making a clear distinction between these scientific abstractions [5, 53-54; 6, 167-176; 7, 4-18; 8, 51-60; 9, 42; 10, 19].
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
21
Section 5. Theory and history of state and law
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.
«The more detailed general theoretical characteristic of the processes of differentiation and integration in law is not given by the scientists at the moment. Sometimes, the indicated processes are simply specified as the most important property of the legal system without developing their conceptual side. Not only unity but also differentiation is typical for the legal system. Every component oflaw (regulatory legal guidelines, branch, regulatory act etc.) can be viewed as an independent system (subsystem) that has a certain integrity, unity, differentiation, structure etc.» [11, 105]. Consequently, the categories «differentiation» and «integration» haven’t been developed appropriately at the level of general theory of law yet. In some branch researches the terms are used as a matter-of-course without methodological potential put into them. Few works on this topic only outline the problematic field and cover the issues of differentiation and integration of law in the course of consideration of this or that topic. Lack of attention to the specified problem is
reflected on the entire teaching about the legal system, which is incomplete because of that.
It is important to emphasize the circumstance that differentiation in the legal system does not lead to the isolation of norms, institutions and branches from one another. The functioning of every specified element is inevitably related to the activity of the other ones. Only in combination, being included in the system, the separate norms, institutes and branches of law can have appropriate effect on social relations provided respective efforts from the side of a law-enforcer. Thus, while analyzing a separate entity of legal norms, the process of differentiation of legal formations determines the need to take into account its connection with many other norms, institutes and branches. In our opinion, it is required to find the whole sum of general regularities in theory that explain the establishment of the state of balance of differentiation and integration as two main tendencies in the development of Russian law.
Hence, the research of differentiation and integration as paired legal categories generates the main question from methodological view — where are the limits of differentiation of the legal system that should be followed by the integration of legal matter but not in a primitive form — a simple retrograde unity, but in a more complex form, without the loss of the achieved and necessary level of diversity in the legal regulation of social relations.
References:
1. Blauberg I. V., Yudin E. G. Establishment and nature of the systematic approach. - M., 1973.
2. Alekseev S. S. Structure of the Soviet law. - M., 1975.
3. Soroko E. M. Structural harmony of systems. - Minsk, 1984.
4. Baru M. I. Unification and differentiation of norms of labor law.//Soviet state and law. - 1971. - № 10.
5. Alekseev S. S. Structure of the Soviet law. - M., 1975.
6. Polenina S. V. Theoretical problems of the Soviet legislation system. - M., 1979.
7. Reutov V. P. Development ofviews on branch differentiation oflaw.//Problems of development of the Russian legislation. Collection of articles. - Perm: Published by Perm University, 2002.
8. Senyakin I. N. Specialization and unification ofthe Russian legislation/Ed/ by M. I. Baitin. - Saratov, 1993.
9. Cherdantsev A. F. Specialization and structure oflegal norms.//Legal studies. - 1970. - № 1.
10. Yakovlev V. F. Branch differentiation and inter-branch integration as basics of legislation system.//Legal studies. - 1975. - № 1.
11. Kartashov V. N. About the correlation of notions «legal system», «system of law», «law structure», «legislation system» and «form oflaw».//Legal system in the Russian Federation: problems of theory and practice: Collection of scientific articles: Materials of V annual international scientific conference, April 19-22, 2010./Responsible editors: V. M. Syrykh, S. A. Rubanik. - M., 2011.
22
