CC BY
139
JURISPRUDENCE (12.00.00)
LEGAL CONSCIOUSNESS AND LEGAL CULTURE
DOI: http://dx.doi.org/10.14420/en.2016.3.1
Svetlana Boshno, Doctor of Legal Sciences, Professor, Editor in Chief «Law and Modern States» Comparative Studies, e-mail: boshno@yandex.ru.
Abstract.
Keywords:
This chapter of the course manual in jurisprudence discloses the notion of legal consciousness. Comprehending law, legislation, principal state and legal institutes manifests itself in law enforcement. One shouldn't absolutize the role of legislation as it is, since it is only after texts of normative acts go through the prism of legal consciousness of the actor's personality, they convert into some behaviour patterns. Legal consciousness has a definite structure, it is divided into levels. Legal ideology and legal psychology appear as levels of legal culture. A significant part in law enforcement and all of its realization forms is assigned to classifications of legal consciousness according to a number of subjects (group, individual, mass consciousness), and according to the content (common, professional, doctrinal consciousness). Legal culture is considered as legal consciousness with a positive content. legal consciousness, legal culture, legal psychology, legal ideology, professional legal culture, doctrine, doctrinal legal consciousness, common legal consciousness, comprehending law.
1. Term of legal conscious: definition, structure, functions
Legal consciousness is a complex of conceptualization and feelings expressing the attitude of persons and social groups of people to the law in force and the desired law. It is a set of objectively existing interdependent ideas, social emotions, groups, persons in respect of the law as a united social institution. Legal consciousness is an estimation of the law in force, some hopes and expectations focused on the legal sphere, its transformation, the attitude to what is legal and what is illegal.
Structure of legal consciousness includes two levels: legal psychology and legal ideology.
The first element of legal consciousness — legal psychology — corresponds to empirical, common level of legal conscious. This level forms as a result of people's everyday practice, their individual and collective activities. The content of the legal psychology is feelings, emotions, moods, habits, stereotypes which are rose in people by the laws in force and the practice of their exercising. It is unsystemised conscious, expressed at some psychological reactions of each person or social group to the state, law, legislation and other legal phenomena.
The second level is legal ideology. It corresponds to the scientific-theoretical level of reflection and assumption of reality. Legal ideology is a complex of ideas, theories, views that reflect and estimate legal reality in a conceptual and systemized way.
In comparison with legal psychology ideology is characterized by the purposive, usually scientific or philosophic perception of law as united social institution not in its single aspect (e.g. legal norms, executive acts etc), but as an independent social element (social-economic formation, culture, civilization etc).
The legal consciousness has several functions.
Cognitive function lies in the fact that the perception of life comes by virtue of perception and understanding of legal events. The subjects of this perception are both legislators and common people: each of them use his ideas about existing and proper law fulfilling their tasks in legal regulation.
The function of estimation lies in the fact that with the help of legal consciousness the estimation of specific situations taking place in life as legally important. Legal estimation is the activity of legal subjects aimed at identification of different situations taking place in life and their legal qualification from the point of view of their own regards to the law, legitimacy, right behavior.
The regulatory function is actualized via the system of motivation, axi-ological guides, legal adjustments, which appear to be some specific regulator of behavior. In this case the legal consciousness acts as a motivation for a specific behavior.
2. Kinds of legal conscious
Common legal consciousness is grassroots ideas of people, their emotions, attitudes towards the law and legitimacy. These emotions arise from the influence of immediate life conditions, their practical experience.
Professional legal consciousness is ideas, traditions, stereotypes formed among the professional layers. The ideas of layers are formed on the basis of legal practice and under the influence of the legal science (ideology).
Scientific legal consciousness is the ideas, concepts, views expressing systemized theoretical basis of law. The bearers and generators of this kind of reflection of legal phenomena are scientists-layers working for survey institutes and academic institutes.
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Doctrinal legal consciousness is characterized by the efficiency of the theories and concepts that form its basis.
3. Deformation of legal conscious
All the spheres of legal consciousness without any exclusion are liable to the deformation. Deformation (distortion) of legal consciousness assumes some basic storage of legal views, knowledge which according to different reasons transformed to some other nonlegal constructions or remained legal only formally or partly.
There are the following forms of deformation extinct: infantilism, nihilism, fetishism, degeneration of legal conscious.
Legal infantilism is the easiest form of distortion of legal consciousness expressed at immaturity, lack of legal knowledge, orientations.
Legal nihilism is supraliminal disregard of legal prescriptions, eliminating, however, criminal intent. This form of deformation is expressed at the full unbelief in the potential opportunities of law, in the affection to follow not the law but their own desires and interests.
Legal fetishism assumes that the law is treated as an idol that is to be ig-norantly worshiped. Thus, the law is derived from the group of social instruments and gains self-sufficient character. In its turn, the law of the state is endued with magic power facing which all the social needs are to adore.
Phenomenon of the degeneration of legal consciousness differs not only by the degree of social danger but also by motivation. The degenerative legal consciousness is based on the voluntary negation of law motivated by greed, cruelty etc. This form is expressed at criminal actions.
The reasons of deformation and degeneration of legal consciousness lie in the society itself. One of the reasons of the negative perception of law are often named the deficiency of the legislation.
4. Legal culture
Legal culture is a kind of social culture reflecting the specific level of legal conscious, legitimacy, perfection of legislation and legal practice and covering all values created by people in the field of law. Legal culture is the qualified legal condition, positive components of legal reality.
It is possible to distinguishe three groups of elements of legal culture, which are to be considered in inseparable unity: 1) idea-theoretical legal perceptions; 2) positive legal feelings; 3) creative activity of a person in the legal sphere. The first are the system of views on the law in force and the desired law and other legal phenomena, the legal life in a whole. In the theoretical, systemized expression legal perceptions form legal theory that plays the leading role in legal culture. Positive emotional relation of a person to the law and legal phenomena is a legal feeling that together with the mood, psychological set, habits and traditions in the sphere of legal activity form social-legal psychology. Its positive expression is the element of legal culture.
5. Legal up-bringing
Legal up-bringing is the systematic, controlled, organized and task-oriented process of influence on the conscious, psychology of the citizens by the aggregation of varied legal-educational forms, means and methods available to the modern legal activity, aiming at the formation of deep and stable legal knowledge, beliefs, needs, values, habits of legal behavior at their conscious.
Legal enlightenment is the transfer of information of legal content. This process is an end in itself. It more often accompanies the socialization, getting of knowledge of any content. The element of legal enlightenment takes place in any educational programmes: primary school, middle school, high-school, college etc. The legal enlightenment is oriented not at precise and complete knowledge of the legislation, but at the formation of positive legal orientations.
Legal education is the task-oriented activity to transfer and assimilation of the whole body of legal norms, working out the skills of working with legal material, forming the ability to do the legal work of different content (lawyer, judge etc.).
Legal up-bringing must go further than enlightenment and education because the knowledge should be transferred to the skills of the legal behavior.
Legal up-bringing is carried out via different methods, the most popular are the methods of reading lectures, indoctrination with the cultural artifacts.
