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14but a kind of general theory of law. It seems to be an important task to revive the tradition of legal philosophy and use its methodological towards such an interdisciplinary dialogue.
References
1. Kerimov D.A. Philosophical problems of law. M, Thought, 1972, - 472 p.
2. Nersesyants V.S. (Ed.) Problems of the general theory of law and the state. M.: Norma, 2004. - 813 p.
3. Alekseev S.S. The general theory of law. - M., 1982.- T. 2.- p. 71.
4. Checherin B.N. The philosophy of law. - M., 1900, 1-2
5. Rozin V.M. Cultural man. Introduction to anthropology. Tutorial. MPSI RAO. M., 2003.
6. Losev A.F. Ancient philosophy of history. 1st ed.: M.: Nauka, 1977.34-37p
7. Shershenevich G.F. "Definition of the concept of law", Kazan, 1896;
8. Berman G.D., Reid C.D. Roman law and common law of Europe / G.D. Berman, C.D. Reid. // State and law. - 1994. - No. 12. - p. 103—108
ПРАВОВОЕ СОЗНАНИЕ - ОСНОВА ПРАВОВОЙ КУЛЬТУРЫ
Тасымова А.К.
Докторант
Карагандинский Государственный Университет им. академика Е.А. Букетова
LEGAL CONSCIOUSNESS IS THE BASIS OF LEGAL CULTURE
Tassymova A.
PhD student Karaganda State University
Аннотация
В статье представлено исследование вопросов методологического обоснования происходящих процессов формирования правовой культуры личности в современных условиях развития общества. Фило-софско-правовой анализ и обобщение проблем развития общества (правовой культуры личности) рассматривается автором как методологическая основа исследования. Подчеркивается важность философского осмысления правовых процессов, рефлексии правового знания о формировании правовой культуры общества в условиях развивающихся глобализационных процессов.
Abstract
The article presents a study of the methodological substantiation of the ongoing processes of formation of the legal culture of the individual in modern conditions of development of society. The philosophical and legal analysis and generalization of the problems of the development of society (the legal culture of the individual) is considered by the author as the methodological basis of the study. The importance of philosophical understanding of legal processes, the reflection of legal knowledge on the formation of the legal culture of society in the context of developing globalization processes is emphasized.
Ключевые слова: формирование правовой культуры, правовая культура личности, правовые процессы.
Keywords: formation of legal culture, legal culture of an individual, legal processes.
Consciousness is the highest form of mental reflection of reality by a socially developed person. Consciousness is such a function of the human brain, the essence of which is: 1) an adequate, generalized, focused and active reflection of the world; 2) in linking newly received impressions with previous experience; 3) in the allocation by a person of himself from the environment; 4) in contrasting himself with the world as a subject to an object; 5) in an emotional assessment of reality; 6) in the preliminary mental construction of reasonably motivated actions; 7) in the ability of a person to be aware of what is happening in the world and in his own soul. According to the famous philosopher and psychologist A.G. Spirkina: "Consciousness is the highest brain function peculiar to humans and associated with speech, consisting in a generalized, evaluative and purposeful reflection and constructive-creative transformation of reality, in the preliminary mental construction of 15 actions and in anticipation of their
results, in the rational regulation and self-control of behavior person "1. Philosophy with certainty can argue that consciousness: 1) really exists; 2) it has a special, ideal nature; 3) that ideal consciousness is derived from matter (the human brain); 4) consciousness is intentional, i.e. aimed at the subject; 5) consciousness is ideational, i.e. able to create ideas. The prerequisites for the formation of consciousness were: 1) the evolution of the property of reflection inherent in matter (brain); 2) the development of the rudimentary intelligence of animals; 3) the transition of a special branch of homi-nids from weapon activity to the subject-practical development of the world; 4) the creation of tools by man himself; 5) the development of the need for verbal communication and the transfer of experience to young people; 6) the formation of culture as a special world of man.
Modern philosophers define: ordinary, scientific, philosophical, legal, religious, political, aesthetic
awareness of the world. The structure of consciousness includes: sensations, perceptions, ideas, concepts, thinking, memory, an act of attention, emotions (joy, pleasure), will and others. Human consciousness is an integral, complexly structured whole.
The legal consciousness considers the world from the point of view of legal and illegal, from the understanding of its status and respect for established norms. It is intended to promote a proper rule of law, which is based on the rights and obligations of each person. Legal consciousness in the modern world is necessary for an active, active, constructive regulation of social relations. At the same time, a person affirms his own spirituality, recognizes the spirituality of other citizens, freedom, reciprocity, relies on knowledge of rights and laws. Legal consciousness is considered at the theoretical and everyday levels. At the theoretical level, this is a system of knowledge about law and 1 Spirkin A.G. Consciousness and self-awareness. - M .: Politizdat, 1972.94 s. 16 legal ideology (laws, legal norms and ideas, theories, knowledge of the objective laws of the development of society). On an ordinary level, these are: 1) legal knowledge acquired by a person in his own life experience; 2) his experiences, feelings, emotions, reflecting his legal reality; 3) the emotional reaction of a person to the assessment of any legal events; 4) legal habits, enshrined in the human mind about the lawful and unlawful, fair and unjust. The formation of a legal culture of a person should be comprehensive, taking into account both theoretical and everyday levels. Allocate public and individual legal consciousness. Public legal consciousness focuses on what is common. It is independent of the individual, therefore it is a system of ideas, concepts, programs, concepts, ideas that reflect social being. Individual consciousness is limited by knowledge, experience, experiences of one person. Law permeates all spheres of human life, therefore, we can say that legal consciousness reflects the whole living world of a person. Famous Russian philosopher V.S. Soloviev noted that "law and morality are united in the desire to realize justice." Morality and morality appear in the form of norms established by public opinion, and law appears in the form of norms, laws established by the state. The legal consciousness is inextricably linked with politics, since it is the state that carries out legislative and law enforcement activities, only in the rule of law can politics be protected from immorality. Legal consciousness is multifunctional, since the bearers of legal consciousness are: personality (individual consciousness); nation (national consciousness); class (class consciousness); society (public consciousness). The main function of legal awareness: 1) regulatory (each person is guided by those rights, norms that are enshrined in society, this is how the actions of the individual, society, social institutions are coordinated); 17 2) epistemological (laws, legal theories and norms are recognizable. Laws and norms are formed in the process of development of society, accelerating or preventing the development of progress); 3) axiological (assessment of law and order in society); 4) normative and prognostic (expressed in the interest of a social subject in their legal support in the future); 5) ontological (legal consciousness itself is a reality, the being of man,
the state and humanity as a whole). In the socio-philo-sophical sense, legal culture is: 1) a special social phenomenon, showing the quality of the legal status of society; 2) the method of organizing the life of an individual using laws, norms and legal rights. In the epistemological aspect, legal culture is the knowledge of people of their rights and obligations and existing laws. In the ontological aspect, legal culture should be expressed: 1) in the humanistic orientation of law enforcement and law enforcement activities of the state;
2) in the strict execution of laws by all subjects of law;
3) in the intellectual and volitional space of law-making activity of legal entities.
One of the serious manifestations of the influence of the socio-political situation in the country on the legal culture of the population is legal nihilism [3].
In principle, the nihilistic consciousness in Kazakhstan is an objective phenomenon inherent in the transition period, accompanied by a radical breakdown of socio-political foundations. In most cases, the masses without much enthusiasm perceive major changes and upheavals, especially if they take place against the background of a very significant decline in living standards. They reject everything new until they appreciate its socio-political and economic advantages.
Legal nihilism is a certain form of public consciousness of the Kazakh people, reflecting the political and national-historical features of Kazakhstani society. The degree of legal nihilism in Kazakhstan is a kind of indicator of the health of society and the state in which it manifests itself. Therefore, we can confidently say that legal nihilism in Kazakhstan is not only a legal concept, but also a kind of socio-political phenomenon that arises as a result of an assessment of the law or its individual norms by Kazakhstanis, social, political entities or even the whole Kazakhstani society.
Relative to the modern Kazakhstan period of reforms, everything is not easy. In addition to the reasons generated by the lightning-fast abandonment of decades-long "socialist" foundations and the transition to classical capitalism with strict market laws — such reasons as a single vital state space, entailing moral and psychological tension in society, legal nihilism in Kazakhstan is provoked and defies any logical explanation of the actions of the authorities. When the state itself neglects the law or uses it, as has often been the case in Kazakhstan's history, only as a means of suppressing individual will, it is strange to hope that people will act within the framework of the law and positively evaluate its essence.
The modern socio-political reality of Kazakhstan puts law-abiding citizens in a difficult position, as the old norms are insufficient, and the new ones are in a state of formation. In this situation, the legal entity of Kazakhstan is guided by nothing more than its legal consciousness and legal culture. In this regard, the question arises: how should the qualitative state of the legal culture of the Kazakhstan population change, so that it becomes possible to solve the problems of forming a rule of law and civil society in Kazakhstan?
Among the negative factors that impede the formation of the rule of law in Kazakhstan, a rather high level of legal nihilism in the minds of citizens should
be noted. Moreover, legal nihilism is not just a mechanical sum of negative legal feelings, emotions and moods, but a synthesized holistic entity that has well-defined quantitative and qualitative parameters, has external connections and interactions. The term "nihilism" is derived from the Latin word "nihil", which means "nothing", "nothing." "Legal nihilism" - the denial of law as a social institution, a system of rules of conduct that can successfully regulate human relationships. Being a controversial and at the same time widespread element of the legal sphere, legal nihilism finds its specific expression (materialization) in a wide variety of manifestations, reveals amazing abilities to "contact" with many phenomena of legal being. However, the more ties legal nihilism finds, the obviously greater danger it poses for the development of Kazakhstani law. This can be especially negative for new, promising areas. Another prominent German philosopher M. Heidegger drew attention to the fact that nihilism "is a historical movement, and not some kind of teaching or view, this movement reveals such a depth that its deployment could result in a global catastrophe" 1. Nihilism expresses a negative attitude of a person or a social group to certain norms, values, ideas, theories. Its main feature is the denial or disrespect of those values and norms that are fundamental in a particular area of social practice and theoretical thought. That is why nihilism is a destructive phenomenon with tremendous destructive power.
A political analysis of the legal culture of Kazakhstan also involves consideration of the content of the concept of "legal space".
It should be said that despite its rather frequent mention in the scientific literature, the concept of "legal space" was not subjected in political science, including Kazakhstan, to any special research or study.
Indeed, Kazakhstani political and legal science focuses on structurally-normative, sectoral consideration of legal realities.
In our opinion, the term "legal space" acts as a universal political and legal concept that allows us to analyze the proportionality of regulatory legal acts, contractual mechanisms in republican relations, to study the general and the special, the limits and scope of legal acts, etc. Moreover, from our point of view, the legal space includes the totality of legal phenomena, processes, legal consciousness, legal functioning of legal entities in the context of socio-political relations.
The study of special literature allows us to state that the question of what should be understood by the legal space, law, is debatable. We can talk about traditional approaches to understanding law [4]. These approaches, however, in a not very pronounced form, can be traced in the law of Kazakhstan of the XX - early XXI centuries.
In the conditions of modern Kazakhstan, in its transitional and crisis state, a more thorough understanding of the role of repressive and restorative legal norms in the formation of modern citizenship and civic culture is necessary, given at least the fact that millions of Kazakhstanis have become real objects of practical application of repressive law.
Acting as an important and necessary tool of public administration, as a form of implementation of state policy, Kazakhstani law is at the same time an important indicator of a person's position in society and the state, guarantee of his rights, an instrument for their protection and implementation. The rights, freedoms and duties of a person and citizen, which constitute the legal status of an individual, are an important component of Kazakhstani law, which is very significant for assessing the development and democracy of this legal system. Kazakhstan law in its true sense considers a person, his good as a goal, and not as a means of functioning of society.
The system of Kazakhstan law includes various elements (legal relationship, legal order, succession, legal capacity, etc.), among which, for our study, lawmaking and legal awareness are of particular importance [5]. Lawmaking does not consist in "inventing" certain norms, "rules of the game," the content of which is determined arbitrarily. Forms of Kazakhstani law have an objective basis in the form of patterns of socio-political relations, their development trends.
In the course of lawmaking, these trends and patterns are captured, discovered and based on them are formulated generally binding rules of behavior of Kazakhstanis. People authorized to develop norms and rights may be mistaken in assessing the objective needs of Kazakhstani society or even try to deal with them. But experience shows that the rules of law "leaping", the conditions and opportunities existing in Kazakhstan's society, or aimed at inhibiting the progressive trend of socio-political development, do not last long, although this does not exclude the significant damage that they can cause to our society.
Legal consciousness in Kazakhstan is a set of views, ideas expressing the attitude of people, social groups, classes to law, legality, justice, their idea of what is legal or unlawful. A concentrated expression of the legal consciousness of the Kazakh people as a form of public consciousness is legal ideology - a system of legal views based on certain socio-political and scientific positions. The psychological side of his legal consciousness is habits, feelings, emotions of Kazakhstan people in relation to legal phenomena. The legal consciousness of the Kazakh people includes knowledge of existing law, its basic principles and requirements, but is not limited to it. For his legal awareness is also important moment of assessment and behavior.
The legal consciousness of the Kazakh people is subject to the general laws of development of public consciousness. It acts as a specific reflection of the economic, political and other relations of Kazakhstani society, the position of social groups and individuals in the system of social production and socio-political structure. Other forms of social consciousness, primarily political consciousness and morality, as well as social psychology, historical traditions, established lifestyle, etc., have a significant impact on the legal consciousness of the Kazakhstan people.
Thus, law in Kazakhstani society acts as a system for maintaining the general conditions of existence of
people and society, its stability and orderliness in relation to destabilizing influences that impede development.
In the process of development of Kazakhstani society, there is a need to cover the acts of production, distribution and exchange of products that are repeated day by day as a general rule and make sure that an individual submits to the general conditions of production and exchange. This rule, initially expressed in custom, becomes the law, along with which there arise organs that comply with it.
The aforesaid allows highlighting in Kazakhstan law the core of universal human values integrated in the general and legal culture of mankind and its constituent peoples. So, how can one define a legal culture? Naturally, in the scientific literature there is no consensus on this subject. Moreover, we note three circumstances. Firstly, the definitions of legal culture are given in the literature of the 60-80s. In later periods, this definition was practically not addressed. Secondly, the definitions of legal culture were given, as a rule, by legal scholars, since in past years it was considered an axiom that legal issues are accessible only to lawyers; philosophers, sociologists, historians, political scientists have nothing to do there. Thirdly, there are very few definitions of legal culture.
The definition of legal culture proposed by A.I. Kireev and S.N. Sergeev. "Under the legal culture," they write, "it is proposed to understand the system of materialized and ideal elements related to the sphere of law, politics and their reflection in the consciousness, thinking and behavior of people and people" [6]. The definition given in the "Sociological Dictionary" is also very meaningful: "Legal culture is one of the types of culture that characterizes the state of development and application of legal theory, the implementation of legislative and regulatory acts. A prerequisite of legal culture was the establishment of a system of human rights and obligations, which is directly dependent on the economic and political conditions of society, determined by its social structure and the level of general culture "[7].
Even the above definitions of legal culture allow us to see that it is a very complex structured concept. The components of the legal superstructure with a specific purpose are used as elements of the legal culture of society - to serve as standards for the behavior of the subject of law, legal policy and to ensure the progressive development of society and the individual.
Obviously, legal culture is an extremely complex phenomenon in its internal structure and wealth of socio-political relations. It does not come down to knowledge of laws, legal norms, although it assumes it as a prerequisite. The legal culture includes, in addition to legal awareness, the level of law enforcement activity in the interests of ensuring and strengthening the rule of law and the rule of law. Legal culture, being a multifaceted phenomenon, is revealed in the scientific literature by determining the totality of its most significant features, signs, criteria, and qualitative characteristics.
In this regard, it should be said that Muslim legal culture can play a role in the legal, political and cultural development of Kazakhstan and other CIS countries.
The Muslim legal culture of Kazakhstanis is part of the Kazakhstani world legal culture as a political science problem. Currently, more than one billion people in the world practice Islam, of which about 11 million are Kazakhstani. Today in the Republic of Kazakhstan there are over 300 Muslim associations; only recently, thousands of mosques have been built. Many buildings returned from believers in previous years are returning and being restored. The Islamic Institute in Almaty, training courses for Muslim worshipers in Shymkent, Kazalinsk, and Merka were formed. Believers are sent to study in Turkey, Egypt and other Muslim states.
It must be emphasized: in order to correctly understand the Muslim legal culture in Kazakhstan, first of all, it is necessary to know the features of Muslim law. The main feature of Muslim law, revealing its nature and distinguishing it from other legal systems, is the interaction of sacred and secular, religious and legal principles in it, which is manifested in the specifics of its origin and historical evolution, sources and structure, mechanism of action and legal understanding of Muslims lawyers, the relationship of this right with the state and secular legislation. Another striking feature of Muslim law is its exceptional diversity, a wide range of regional and national forms, close interaction with local traditions and customs, a combination of both detailed individual decisions with general principles, and stability and constancy with flexibility and ability to change over time. In the context of all these issues, the relevance of studying the state and prospects of the development of the Muslim legal culture of the Republic of Kazakhstan on the modern legal map of the world is predetermined. Moreover, the appeal to Muslim-legal culture is not only scientific, political, but also of practical interest for modern Kazakhstan, which has not yet been studied in the scientific literature.
The relevance of the Muslim legal culture for Kazakhstan is determined, first of all, by the fact that Islam is not something alien and extraneous for our republic, but an integral part of its history and culture, the most important aspect of the lifestyle of many millions of Kazakhstani Muslims. Without pretending to be complete, we note those features of Kazakhstani Islam that are directly related to our topic.
First of all, Islam in present-day Kazakhstan is characterized by extreme diversity, pluralism of manifestations, and ambiguity of functions, which is determined by both common Islamic features and social, cultural, political, religious, and other factors specific to Kazakhstan. So, the diversity of regional forms of Islam is striking, primarily due to ethnic, aboriginal moments, close interweaving with local customs and traditions.
There is a plurality of levels and roles of Islam, which follows from its complex structure (it acts as a religious system itself and as a way of life) and is enhanced by the variety of functions performed by it in the religious hierarchy, social and political structure of modern Kazakhstani society.
It should be said that the peculiarity of Kazakh-stani Islam is the relatively low level of Muslim culture, which manifests itself in different ways. In particular, we are talking about religious institutions themselves and the level of knowledge of Muslims themselves. There are many reasons for this lag. One of them is the long isolation of Kazakhstani Muslims and Islamic institutions from the rest of the Islamic world, from the leading centers of Islamic knowledge, isolation from modern Islamic civilization, as a result, a noticeable lag behind the latest achievements of Islam, its spiritual, intellectual, political and legal culture. Kazakh Islamic religious centers are still not sufficiently familiar with the experience of modern Islam, are not ready to search for answers to the actual worldly problems that Muslims are facing in a dynamically changing Kazakhstani society, in the spirit of the achievements of modern Islamic thought. Therefore, the current revival of Islam in Kazakhstan is practically limited by the religious and cult side of the problem, and archaic forms of life, backward culture, and unresolved social problems continue to prevail at the level of Muslim lifestyle, its social and cultural components. There is a clear discrepancy between the cult and secular sides of Islam, Islam-religion and Islam-way of life, or, in the words of Islamic thinkers, between Islam-religion and Islam-state.
In addition, it should be borne in mind that Kazakhstani Islam is Islam in a multi-religious environment, where, as a rule, wariness and distrust, and even hostility, are manifested to it. For example, among nonMuslims and at the level of state structures, there is clearly not enough objective knowledge about Islam and the achievements of Islamic culture, especially the modern one. It is dominated by superficial, often distorted ideas about Islam, etc.
The shortcomings of the political and legal culture with regard to Islam and the almost complete lack of knowledge of the Muslim legal culture are especially acute. In particular, the power structures that develop and implement legal policy not only do not have sufficient experience in resolving the problems of Muslims and Islamic institutions taking into account Muslim law, but also do not have adequate information about him, about his place in modern legal systems and interaction with others. legal cultures, as well as on the approaches of the Muslim legal doctrine to such issues as the ratio of religious and secular principles, religion and law, the state and religion in Islam, issues that have an act common value for Kazakhstan.
The noted and other features of Kazakhstani Islam should be taken into account in the political science analysis of the role that Muslim law can play in Kazakhstan. Moreover, the emphasis on the development of the achievements of the Muslim legal culture from the entire Islamic heritage is determined by those key issues on the solution of which the future of Islam in our country depends.
In particular, in our opinion, the most relevant conditions in Kazakhstan are not the spheres of Islamic religion, dogma and worship, but the secular problems that Muslims and Islamic institutions face. The fact is that Islamic dogma and cult are relatively unchanged, stable and can be learned quite quickly: the elimination of elementary illiteracy in this area does not require long periods and excessive intellectual efforts and can focus on the perception of ready-made foreign samples. In any case, the restoration of old mosques and the construction of new ones, the distribution of popular literature on Islamic worship prepared abroad, and the organization of short-term training courses are a completely solvable task, especially with the support that foreign Islamic centers have provided in recent years.
But these important measures alone do not solve the main problem, which is not simple religious illiteracy, but a low Islamic culture in the broad sense, inability to master and use for the good of Kazakh Muslims and Kazakhstan as a whole the whole rich spiritual and intellectual potential of Islam , including the achievements of the Muslim legal culture. Muslims of Kazakhstan must not only competently and in strict accordance with the rules accepted in Islam perform religious rites, but also be able to think in an Islamic way and approach their problems - political, socio-economic "[8], etc., and do this follows taking into account global standards and based on interaction with other cultures and religions. Using the terminology of Muslim legal scholars and political scientists, it can be argued that the main problem of Kazakh Muslims lies not in the field of cult, Islam, religion, but in the sphere of secular relations, the Islamic state, and "secular Islam".
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