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Section 2. Science of law
Ibraeva Alua Salamatovna, Doctor of Law, professor of the Chair of State and Law Theory and history, Constitutional and Administrative Law, Faculty of Law, al-Farabi Kazakh National University, Almaty, Kazakhstan
E-mail: ibraeva_tgp@mail.ru
Alimbekova Madina, PhD student, International Kazakh-Turkish University A. Yasawi, Turkistan
The legal culture of judges in the Republic of Kazakhstan
Abstract: The purpose of this article is the study of the theoretical and practical issues of improving the legal culture of the judges in the Republic of Kazakhstan. Particular attention is paid to the legal mentality and formation of professional judges ofjustice. We study the impact of globalization on the legal culture of modern Kazakh society. Methods of teaching are historical, comporative legal, structural and functional, logical, legalistic.
Keywords: legal culture, legal consciousness, mentality, legal nihilism.
Legal culture — a system of legal material and spiritual achievements and values accumulated in the organization and development of the legal aspects of society, reflecting the level of development of civilization and ee qualitative state.
The term “legal anticulture”. In our view, the concept of “legal anticulture” does not fit into the framework of a general concept of culture as a system accumulated by mankind’s material and spiritual achievements, and the concept of law as a measure of freedom and justice, cultural phenomena and results of civilizational development. The term “anti-culture” does not contribute to an understanding of culture as the positive effects of social reality.
Legal culture is an indicator of the development of legal life, ee qualitative state. The concept of “quality legal life” implies a high level of its development within the framework of the rule of law and the rule of law, law and order, the high level of legal, regulatory and quality required legal, law enforcement, interpretation of acts of law enforcement activities.
Person is the central subject of culture as a society and legal culture. The climax of the legal culture is a legitimate human behavior. It is therefore noteworthy anthropological approach to legal culture. High level ofpersonal legal culture (of justice, the desire to live according to conscience and truth, obey the law, respect for people, their freedom and inalienable rights, and so on. N) is a condition of becoming a constitutional state.
Legal culture has normativity. Normative legal culture is manifested in the fact that it is by the rules — the rules of conduct, definitive, appraisal, and other non-mandatory standards, incentives, principles of law normalizes the functioning of society, sets reasonable
limits of activity of subjects of legal culture, the normative basis for regulation of its obj ects, brings stability and order in the lives of people, in their attitude towards the legal artifacts. Legal culture, in addition to the rule of law, includes the earlier social norms, legal customs which for centuries was replaced by a norm of law-making bodies. Other sources of law (the works of prominent lawyers, religious texts, scriptures, commandments, treaties, etc.) also constituted a component of legal culture in the different stages of historical development.
Pay attention to the ideological component of the legal culture. We emphasize that the ideas, views, concepts and theories related to the protection and validation values of legal culture, formed and fought their way in connection with the idea of the rule of law. It is in the nomination process and the development of ideas and theories of the rule of law at different historical stages formed the legal culture of values (human rights, individual freedom, mutual responsibility of the state and the individual, the rule of law, due process, rule of law, etc.). To the ideas, values and institutions of legal statehood became a reality penetrated the fabric of society, in the minds of officials and citizens, members of a society.
Legal culture of the judges is closely related to his moral character. For the judge, it is important to keep the balance between humanity (kindness) and severity (justice). Here, the primary role played by the judge awareness of its debt, its beliefs and self-educationThis problem is both personal and public. It should be noted that these qualities are not achieved at once, but gradually educated and formed in the process ofjudicial activity. The decisive factor here is the stage of maturity. “Kindness and severity — a twofold concept for a public servant, and to the judges especially. Detachment from one another leads to
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The legal culture of judges in the Republic of Kazakhstan
formalism, professional inadequacy and ignorance. This is especially dangerous for the judiciary" [1].
To recognize an integral part of the legal culture of society domestic legal mentality, which has considerable influence on the character of positive law, particularly its implementation. In the ability to understand the specifics of the legal mentality, Kazakhstan largely laid the foundation for a successful productive activity of judges. Understanding the meaning of the legal mentality of society, judges do their job more focused, conscious, to what purpose the judge must seek and what is needed.
Legal mentality is a deep level ofjustice, expressed in a structured and holistic unified community of legal notions, stereotypes, habits, reactions, etc., in the nature and manner of legal perception. But legal mentality is not able to independently interpret theoretically and ideologically legal validity. Here, you must have an abstract (logical) sense ofjustice. It is expressed in the categorical conceptual level of legal thought.
For the Kazakh mentality is characteristic traditionalism, collectivism, the desire to search for truth, goodness, equality, mercy and justice. All this is reflected in the legal mentality.
Of particular importance in the legal culture of the judges should be given to the creative, which is essential to the actualization of rights. We believe that society needs a judge who’d had the spirit of creativity, critical perception of the conversion rules of law, for without this condition, the judge can not fulfill its art. 78 of the Constitution of the duties and rights to evaluate the existing laws in terms of protecting human rights and freedoms.
Developed sense of justice judges should evaluate the law in terms of not only the idea of the priority of human and civil rights, but also the existence of the duties of the person in front of a social group, society and state. It is impossible to focus only on human rights. More important is the implementation of the individual’s own sense of justice debt to the rest of the actors, the real update they started positive responsibility. That is, the idea and sense of duty, duty, responsibility of absolutely necessary components of justice, without which it is defective. These are the general social values. We should not also forget about the responsibilities of the state, society, collectivity before individual, whose implementation is intended to provide him/her with a decent life. Responsibilities (as well as subjective rights) should not be one-sided character — they are interrelated, interdependent and mutually reinforcing.
We are of the opinion of known lawyers — scientists (Kazakh researchers S. Z. Zimanov, S. S. Sartaev,
Russian researcher R. Bayniyazov.) believe that the legal consciousness of judges must have the wisdom and beauty. These spiritual and cultural values inherent in the creative and not dogmatic sense of justice. Wisdom of justice is expressed in spiritual harmony, legal ideas and legal sense, when the legal outlook and a sense of entitlement do not contradict each other. Wise legal consciousness is a state (spiritual static) and the process (the spiritual dynamics) of intellectual and volitional synthesis of legal knowledge, legal experience and, more importantly, high on mental power and real-life oriented philosophical-cultural understanding and a sense of the true nature of the legal world. Legal wisdom is organic beauty (aesthetics) of justice. Wisdom itself is already an inner (spiritual) beauty, but in alliance with the aesthetic ideals, images, feelings, it gets a unique intellectual brilliance. The beauty of justice is most pronounced in a clear, very clear, concise, meet the legal logic of legal concepts, ideas, principles, doctrines, sources, actions. On a psychological level, aesthetics of justice judges is particularly strong in the legal sense — the sense of the legal conscience, law, legal obligations and debt, etc.
Today, the importance of culture in professional judges should be given to the development of constitutional justice, the basis of which should be striving judges to achieve peace and harmony in the society. It is important for judges to understand that their main purpose — not to punish and to punish, but to educate members ofthe community to reach a compromise and harmony in society, and in the spiritual condition of the members of society.
It is also important to pay special attention to the development of the constitutional spirit. Without development, we are accustomed none of the constitution. For it is the spiritual source of the constitutional arrangement, development, functioning state, instilling a national constitutional and legal aspirations.
Today it is important to rely on legal experience to achieve the traditional legal culture of the Kazakh people, as well as to achieve universal legal civilization. It is necessary to take the appropriate legal optimum, while adhering to the measure, rather than mechanically assimilate into the domestic legal environment ofWestern political and legal institutions and values. In Kazakhstan, 10-volume fundamental scientific work, performed under the leadership of academician of NAS RK S. Z. Zimanov “The ancient world right Kazakhs”, published. The purpose of this study is to reveal the unique legal world of Kazakh people in a nomadic civilization. The central figure of this study is bi — judge of the people, their moral and legal quality. We believe that every judge
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of our country should know the history of their people.
Based on these theoretical positions, let us move on to the practical problems of professional and legal culture of the judges. The media today talks about the low professional level and low legal culture of the judges. Despite the fact that in most cases this information is incorrect, the significant impact of such information society. I think that talking negatively about the entire judicial system ofKazakhstan is impossible. There are individual negative symptoms.
From the viewpoint of performance of legal culture, these drawbacks can be described as follows:
1) Lack of ability to deal with people on the basis of respect.
2) Low culture in general.
3) Lack of civil liability and patriotic consciousness.
4) The low level of professional qualifications.
5) Have some judges negative sense ofjustice, based on mistrust, doubt in the integrity and honesty of the people, the so-called presumption of guilt.
6) Today, there are cases where, in practice, there is an explicit or implicit distortion of the meaning of the law by judges, which leads to the formation of negative public attitude toward lawyers, law and even constitutional.
7) In some cases, the process of judicial activity has been neglected by the view of society, the reassessment of the significance of personality, abusing their official position.
Of course, the question of formation of professional legal culture affect on different areas of the work ofjudg-es. Yet the main points are the professional and personal qualities of the judge. In this regard, we believe it is necessary to implement the following measures.
1) Begin with the need to improve the quality of legal education. It is no secret in Kazakhstan that there are so many law schools, yet with no qualities.
2) Make higher requirements for judges. Raise the age limit and qualification work experience. Judges must exempt the seat for violation of ethical norms.
3) Conduct a constant study of public opinion about the activities of judges. The results of these studies should be the basis for evaluation of judges.
4) Pay special attention the ethical principles of the law schools in the learning process. Develop a code of ethics for law students and law schools of the Republic of Kazakhstan. For violation of the ethical standards, students must be withdrawn from the universities.
5) It is necessary to conduct extensive research on the subject with the participation of representatives of the various sciences — political scientists, sociologists, lawyers, psychologists, culture, and historians. Such
studies should be carried out under the auspices of the Supreme Court of the Republic of Kazakhstan.
6) What is needed is a close contact, a close alliance of legal science and practice. Kazakhstan hosts various conferences, produced a lot of recommendations. However, unfortunately most of them are not applicable in the legal practice, and not explored in the practice, but remain on paper.
7) We believe that judges should be directly involved in the creation of the state standard ofhigher legal education.
The two components of the legal culture: human and national.
Human and national components can be isolated in the legal culture. Legal culture of a country, as a rule, is formed in the process of weaving the various contradictory value orientations and methods of political and legal participation of citizens, as well as national traditions, customs, ways of public recognition of human rights and other circumstances, expressing stable features of civilized development of society and the state. Legal phenomena by themselves in the national legal system are seen as cultural values to the extent that they are recognized sense of justice, national and legal mentality. It is a different degree of moral, cultural and historical maturity of ethical legal mentality among different people, the state of the rights and freedoms of the individual, the nature of the relationship of state and civil society, which determines the capabilities of the legitimating legal values of peace of the country. As each ethnic group has its purely legal unique ethnic mentality, the content of the legal culture of the people will have unique features.
The formation of high legal culture is directly involved as legal, free civil society. Freedom of the individual, the realization of human rights, all kinds of free (economic, scientific, artistic, etc.) human activity, political and ideological pluralism, which are implemented in a civil society, create the necessary conditions for the realization of the values of legal culture. Of course, each nation has its own way to the rule of law.
The introduction of the idea of the rule of law and the primacy of human rights does not contradict the national traditions of the Kazakh people, spiritual and cultural foundations of life of Kazakhstani society, psychology and consciousness.
The context of the impact of globalization on national legal cultures is necessary in order to protect them from destructive penetration of national and spiritual foundations of alien elements, which identify criteria to as-
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The French revolution as a factor in transformation of the French state in the XIX century
sess the identity of the legal culture. Identity of the legal culture of stability is maintained mainly by its spiritual components. It is consciousness, psychology, mentality, traditions, customs, characterized by strength, stability, and sometimes conservative, preserve and maintain the identity and national spiritual specificity of legal culture. Destruction of the legal culture is fraught with spiritual crisis legal society, degradation of personality, change the whole ее system of value social guidelines.
For a modern legal culture are important components of the backbone of the traditional Kazakh society — stable moral and ethical standards, law-abiding faith in the principles of fairness, kindness, generosity, humanity, the inseparability of legal and moral values, and others. We believe that these qualities must be cultivated and developed in the legal space of the Republic of Kazakhstan.
Legal culture is closely related to the Republic of Kazakhstan, to the Russian legal culture and legal cultures of other post-Soviet countries, especially the countries of Central Asia. This is mainly due to the fact that the legal culture of post-Soviet states for many years formed through a unique Eurasian geopolitical cultural education. It can serve as a resistance to the negative impact of alien elements of Western legal culture.
Globalization also covers cultural life. It brings worldwide cultures close together, at the same time strength-
ening the association of individuals in certain frames, uniform rules and regulations, thus contributing to the loss of identity of ethnic groups. It leads to the unification, universalization and standardization of cultural and spiritual orders, the erosion of traditional cultural values. Introduction into the national legal culture of any outside elements that are not consistent with the national components of spiritual culture (consciousness, psychology, mentality), gives rise to internal contradictions, reducing the systemic legal culture.
The context of the impact of globalization on national legal cultures is necessary in order to protect them from destructive penetration oftheir national and spiritual foundations ofalien elements identify criteria to assess the identity of the legal culture. This criterion may be a legal mentality. Mentality as a spiritual and psychological phenomenon is the pressure of the historical roots in Kazakhstan.
Legal mentality consists of spiritual slice of subconscious, being part of the content of justice, reflects the legal values within the framework of sustainable, sometimes difficult to change patterns of thinking and behavior. Elements of ethnic and national psychology are actively involved in shaping the mentality. It is spiritual and psychological components ofjustice that reveals the most human response to penetrating external value of legal culture.
References:
1. Zimanov S. Z. To be the personification of goodness and justice ...//Sanger. - 2001. - № 1. - Р. 6.
2. Ancient world right Kazakhs: Materials, documents and studies. In 10 volumes. Program Manager S. Z. Zimanov. Volume 1, 2, 3 - Almaty: Zheti zhargy, 2004.
3. Sartayev S. S. The meaning of life.//Scientific publication. - Almaty: LLP «Dauir», 2007. - Р. 320.
4. Bayniyazov R. S. Philosophy of justice. Statement of the problem.//Jurisprudence. - 2001. - № 5. - P. 12-23.
5. Bayniyazov R. S. Legal awareness and legal mentality in Russia: Author. dis. .Doctor. jurid. Sciences. - Saratov, 2006. - Р. 16.
Kaynazarova Ayman Abdashimovna, Al-Farabi Kazakh National University, master student 1st cours, Faculty of Law E-mail: nurlaiym@mail.ru
The French revolution as a factor in transformation of the French state in the XIX century
Abstract: As the title implies the article describes the influence of the French revolution to the change of the French state in XIX century. It is given the information about the two concepts of evolution distinguished by the researchers. It is described the struggles for the power between the sides that have happened in Europe up to now, in consequence of which have appeared states. France is pointed out to stand as a kind of an ideal type of strong state.
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