CC BY
29
THE THEORY AND METHODOLOGY OF LAW
Y.A. Vedeneeva*
THE THEORY OF LAW:
THE DEVELOPMENT OF THE TOPIC
Abstract. The article is devoted to one of the fundamental topics of the science of law, connected with the doctrinal and institutional practices of its composition and development; to a certain extent it may be regarded as a remark to the article «Legal Science: Its Present Condition, Challenges and Prospects (the Theoretician's Reflections)» by professor Lazarev V.V. («Lex Russica», 2013. № 2). The actual topic of the research is preconditioned by the urgent need of expanding of the potential circle of the grounds for epistemological curves in the development of the science of law in general and the theory of state in particular. The introduction of such categories as «legal text» and «legal language» into the realm of the science of law has renewed and changed the epistemological prospect in the development of the legal theory itself. These general notions actually accumulate all the possible revelations of the concept of the science of law — its ontology and axiology.
Key words: the science of law, theory of law, legal ontology, epistemological curve, legal concept, legal language, legal communication, self-reflection, conceptual core, linguistic curve (approach), meta-theory.
The classical idea of the science of law is viewed as a unified body of legal disciplines the classification of which is based upon the diversification of the branches of law. The scholars respectively single out the science of constitutional, civil, administrative law and other scientific disciplines. Each of them works out its own aspect of the legal reality, formulating their proper subject and scope of investigation, creating its own tools and devices. The theory of state and law or the legal theory in the framework of the above specialized subjects is given the part of general methodological discipline — the one providing the summarizing of their results and setting goals for further investigations and challenging upcoming problems.
V.V. Lazarev has radically changed the traditional view on the logics of mutual relations between different levels of the development of the legal knowledge — that is general legal knowledge and legal knowledge of a particular branch. The introduction to legal disciplines such concepts as «challenges and feed-backs» in different aspects of their performance and existence has enabled the author to avoid the trivial reasoning concerning the topic of the subject and methods of the science of law
and subsequently leaving out the everlasting topic of identifying interdisciplinary boundaries within the system of law and within the system of the science of law.
Challenges and their meeting in the framework of their functions in the mechanism of the evolution of the science of law as presented in the mentioned article are not only the reaction to the acute problems and the ways of their practical solution. The primary significance of this innovative practice is the discovery of new subjects and new methods of investigation both inside and outside the science of law as well as the discovery of non-obvious legal realities outside the framework traditional classical approaches and definitions deeply rooted in the science of law.
«Epistemological curves» in dealing with legal problems both traditional ones and new ones can also be attributed to challenges and to their meeting. In essence it appears to be the basic and the key issue of the theory of law — bringing to life new problems and issues of the science of law and developing their concepts.
1. While preparing the course for magistrates named «Anthropology of Law» the author paid
© Vedeneev Y.A., 2014
* Vedeneev Yuriy Alekseevich — D. Sc. (Law), professor, head of the Theory of State and Law Department of the
University named after O.E. Kutafin.
123995, Россия, г. Москва, ул. Садовая-Кудринская, д. 9.
attention to a qualitatively new approach to the composition and the structure of anthropological science in correlation to the science of law, in particular the precise segregation of the scientific discipline into its contents and it methodological component.
If one considers the component of contents one may single out the following disciplines: social, economical, political, cultural and legal anthropology; if one regards the methodological component one may single out philosophical, evolutional, structural, functional, historical and comparative anthropology.
Each element of the general subject and the system of methods enjoys its own background:
— its proper historical tradition of identifying and developing the object of research and approaches adherent to this research;
— its proper historical tradition of working out and developing relevant tools, i.e. special categories and notions.
The research has resulted in creating a flexible structure of theoretical language of the complex of anthropological disciplines in the framework of logical historical changes pertaining to the definition of its subject, glossary, the scope of the key problems and the ways of their solution.
The initial cognitive paradigm in conceptualizing of a scientific discipline is determined by the logics of transitivity of the subject and method of a particular science.
The subject of the research predetermines the method of the research, the opposite is also true: the method employed in the research designs the subject of this research. The most essential idea is that neither the subject of the scientific discipline nor the method of the latter can exist independently.
The subject of the discipline is revealed through the method, and the method of the discipline finds itself within the subject. They both contribute to their definitions and mutually influence their compositional structure.
For every area of social practice (processes and relations), for instance, the area of law, the boundaries of the research subject are constituted and determined by its methodological framework. Consequently, for example, in the general system of legal anthropology scholars single out structural and institutional anthropology, functional anthropology or anthropology of social exchanges (transactions), evolutional anthropology or ethnic jurisprudence1
1 Pershits A.I. The Problems of Regulatory ethnography // Researches in General Ethnography. M., 1979; Kubbel L.E. Potestary and Political Ethnography // Researches in General Ethnography. M., 1979; Deev N.N. Statehood and Ethnopolitical Development // Political Problems of the Theory of State. M., 1993. P. 46-59; Deev N.N. From the History of Origin and Interrelation of Notions and Terms «state» and «nation»"//Formation ofthe Constitutional State in Post- totalitarian Russia. Issue 2. M., 1998.
with their own scope of problems, analytical tools, definitions and notions2.
2. Such symbiotic coexistence of the subject and the method of the research is an adequate expression of the phenomenon that is defined by the scholars as integrative science and integrative jurisprudence. Integrative theory not in the sense of unifying different aspects of the object of the research and the research approaches (it is one aspect of understanding of the setting and the development of the new postclassi-cal jurisprudence), but predominantly concerning the possibility to detect and form new ideas and meanings in the contents and structure of the existing legal knowledge about state law phenomena due to matching and overlapping different methodological schemes of constructing the subject of joint research and also due to the possibility to detect and form new realities of law (law ontology issues).
Otherwise, legal reality as it is (as a legal image phenomenon or as a socially regulatory fact and concept) emerges and exists on the crossing of the research subject and the ways of its perception, description and explanation.
The research method fixes the research subject. The number of analytical approaches equals the number of conceptual subjects and the number of conceptual subjects equals the possible reality phenomena (ontology issues).
Legal reality exists simultaneously in objective and subjective planes in the form of veritable and due, factual and regulatory, substantive and ideal, i.e. within the boundaries of definite socially regulatory facts and given historically predetermined legal picture of the world.
In this sense the science of law in general and the theory of state and law in particular is one of the possible forms of existence of legal reality or regulatory due phenomena parallel to the doctrinal, formal and factual legal reality or legal ideas and values, legal norms and institutions, legal policies and legal practices. The science of law itself is incorporated in terms of subject and institution in the present legal structure3.
The theory of state and law being an integral part of legal ontology is revealed in the system of legal categories and ideas, notions and definitions, legal constructions and assertions.
The main subject of the theory of state and law is instruments in the forms of categories and ideas, notions of the discipline or the language of the discipline and explanation of the legal reality in various forms of its existence and expression. In other words, the main subject of the theory of state and law and its conceptual core are, on the one hand, composed
2 Puchkov O.A. Legal Anthropology and the Development of the Science of State and Law (Theoretical Bases): author's thesis ... D.Sc. (Law). Ekaterinburg, 2001.
3 Chetvernin V.A., Yakovlev A.V. The Institutional Theory of
Law. M., 2009.
№ 12 (TOM XCVII) ^EKABPb 2014
of the language of the discussions of state and law in their mutual relations and definitions, on the other hand, of the results of the legal language application in the process of its scientific and practical developing and mastering i.e. of the process and results of its conceptualizing and institutionalizing.
3. Each historical epoch in terms of the development of the science of law speaks in its own language about state and law, develops its own ideas about state and law, looking at the same time for universal and concrete characteristics and definitions of the state-and-law phenomena, develops and enjoys its own format, modus or structure of legal knowledge existence, its legal ontology, epis-temology and axiology.
The historical logic of the development of the theory of state and law, its subject and method, scientific language and conceptual structuring provides a clear empirical demonstration of this fact.
The evolution of the science of law as a system of knowledge is subject to general logic of any social phenomenon development and encompasses three phases: pre-theoretical, transitional and theoretical proper.
Leaving alone the details of the process of structural changes in the system of legal knowledge, as it is the object of history and methodology of the science of law, it is worth noting that the first stage of theoretical jurisprudence formation proceeded within the framework of civil law science and state law science. It is due to their inner structural division into general and special parts that the formation of the tool kit of the science of law in general has been provided.
The general part of the discipline of civil law has actually laid the foundation of the theory of law4 and the general part of the discipline of state law has correspondingly laid the foundation of the theory of state5 .
Actually all the basic set of problems, key notions and terms of the science of law have been elaborated within two basic practice-oriented disciplines of the science of law. In modern conditions of the development of special legal disciplines and considerable amount of the subject and the set of problems of the theory of state and law is in the boundary area of the civil law and the constitutional law. This event has actually provided the ground to one of the leading scholars in the area of constitutional law to express doubt in the existence of the theory of state and law as an independent scientific discipline6. This point of view has certainly the right
for existence but only in the framework of the formally dogmatic understanding of the subject and the system of the interdisciplinary ties within the science of law in general.
Any scientific discipline in the course of its development of its initial subject overcoming the logic of conceptual borrowings starts to initiate problems and incorporate in the structure of its research metaphysical and conceptual foundations of its own development and structure referred to the discipline.
The historical stage of self-reflection expresses an utterly new stage of theoretically methodological evolution of the scientific discipline. Such epis-temological turns connected with the search of its own conceptual identity fix in-depth shifts inside the legal picture of the world in the system of its basic concepts of understanding the sense and designation of state and law7.
The crisis of the positivist version of understanding law it is first of all the crisis of socially regulatory function as it is in its formally dogmatic representation, hence as a consequence there comes the crisis of the positivist version of the definition of the subject and structure of theoretical jurisprudence. This process has combined challenges of subjective and objective plane, external and internal, institutional and epistemological.
It is this situation that gives the ground to recognize the in-depth character of forming a new post-classical jurisprudence8. Its subject and structure, ideology and conceptual core remain in the state of forming and defining their actual contents, forms and means of expression. The basic critical orientation is motivated by the necessity of reconsidering the present approaches and versions of understanding state and law. One cannot but stress that the positive contents of the new science of law is filled to a great extent with invectives addressing the old science of law9.
Alongside this the format of critical science of law produces positive and negative results. It looks like in this instance as in every other case it is indispensable to measure things in a proper way. One cannot be sure of the future if he destroys the past.
4. The logic of epistemological challenges and their feed-backs is the most beneficial form of existence of science of law in general and the theory of state and law in particular. The appearance of
4 Krasavchikov O.A. Categories of the Science of Civil Law // Selecta .V. 1-2. M., 2005.
5 Bogdanova N.A. The System of Constitutional Law Science. M., 2001.
6 Strashun B.A. Does the Science of «The Theory of State and Law» Exist? // Scientific Works of the Moscow State Academy of Law. 2001. P. 99-101.
7 Mamut L.S. The Science of State and Law: the Necessity of Radical Renovation // Sciences of Philosophy. 1989. № 11.
8 Varlamova N.V. Nonpositivist Concept of Legal Dogmatism // Russian Justice. 2007. № 10 (18).
9 Chetvernin V.A. The Problems of the Theory of Law and State. M., 2007. Varlamova N.V. Typology of Understanding the Law and Modern Tendencies of the Development of the Theory of Law. M., 2010. Chestnov I.L. The Postclassical Theory of Law. SPb., 2012. Lapaeva V.V. The Types of Understanding the Law: Legal Theory and Practice. M., 2012.
competing scientific schools and scientific editions provides the appearance not only the new relevant directions and approaches of the theoretical jurisprudence10, but its reproduction as a fundamental scientific discipline as well.
Epistemological turns in the development of the science of law are quite important in two aspects: there has appeared the opportunity to reconsider and re-determine definite conceptual solutions in their integral system, there has come into being the utterly new understanding of the nature and basis of the phenomena under research.
The most significant event is the fact that paradigmatic shifts reveal the presence of new legal realities, forms of legal communication, modalities of regulatory-obligatory aspects in organizing and regulating social practices and as a consequence — formation of new legal languages of description and explanation of legal processes and phenomena.
The main dividing range of classical and post-classical science of law is connected not only with the revision and the enrichment of the vocabulary of the theoretical jurisprudence. It is an undoubtedly important event, but there are other no less significant aspects of conceptual evolution and revolutions in the science of law.
Great significance is given to the phenomena of transforming a new outlook in the apprehension of a real picture of the world of legal relations into the policy and practice of constituting new legal realities in economical, political, social and cultural spheres11, and as a consequence — constituting new legal languages in the description and explanation of these processes.
It is only sensible that on should use a common sense approach in their application, properly measuring the demand for these phenomena and their putting into practice within the framework of virtual opportunities since one may get deplorably as a result not a live legal reality but only its imitation in the form of regulatory and institutional simulacra.
The initial state of the modern, according to Yurgen Habermas, is characterized by world-view pluralism12. It may entirely be applied to the world of the legal phenomena or to the regulatory due phenomena within the system of social relationship and processes, doctrinal and scientific practices.
In terms of Russian jurisprudence the like state of things existed in classical and postclassical peri-
10 Russian Annual of the Theory of Law. SPb., 2008. № 1; 2009. № 2; 2010. № 3. Annuals of Libertary-juridical Theory of Law. Issue 1. M., 2007; Issue 2. M., 2009. Annuals of Comparative Law (Moscow).
11 Medushevskiy A.N. The Cognitive Theory of Law and Legal Reality Constructing // Comparative Constitutional Review. 2011. № 5.
12 Khabermas Yu. To Architectonics of the Controlled Dis-
courses // Between Naturalism and Religion. Articles on Phi-
losophy. M., 2011. P. 80-86.
ods of its existence. Although it is not totally correct to consider the epistemological conservatism of the classical jurisprudence and epistemological liberalism of the post-jurisprudence as the initially predetermined and unchangeable qualities of their subject and methodology13.
Every stage in the development of the science of law — its subject and the range of problems, glossary and structure — set at the same time the boundaries of its cognitive possibilities. Widening or narrowing of the subjects and methods learning state and law constitute separate epochs of conceptual evolution of the theory of law. A particular place in this process has been given to scientific discussions relating to social and doctrinal foundations of the science of law — its ontology and epis-temology.
The historic shift of ideological landmarks in understanding the subject and the contents of the science of law in the most pure form has revealed itself in the Soviet and the post-Soviet periods of the development. Thus in the framework of classical paradigm of understanding mutual relations of law and state there have consequently appeared and coexisted three conceptual versions in the definition of the subject of the theory of state and law: dogmatic, behavioral and axiological. Each of them supposed and suggested its own outlook on the main subject of learning state-and-law phenomena, its own language and axiomatic.
The original official doctrine restricted the subject of the science of law by the dogma of law. The format of the dogmatic jurisprudence used to cover practically all the areas of the scientific discipline. The dogmatic jurisprudence used to ignore and slash in a rather tough way all other possible points of view regarding its subject. The formal stance was officially proclaimed and sanctioned in the framework of the discussion devoted to the problems of the system of law in 193814.
New scientific doctrines regarding the issue of the theory of law have been outlined during the scientific discussion that took place in a rather flexible format of different points of view in the second half of the last century. It has entered the history of the science of law as the discussion in a broad and narrow sense of understanding law. These transformations were connected with the expanding of social basis for realization and application of the set law and paying special attention to such elements of the mechanism of legal regulations as legal relations. Identification of categories, set positive law and acting positive law were the starting point in forming new legal discipline in the general system
13 Kornev A.V. The Conservative and the Liberal Theories of State and Law in Russia (XIX-XX centuries). M., 2003.
14 The Main Tasks of the Soviet Socialist Law: the Report at the First Conference on the Issues of the Science of Soviet State and Law (July 16-19, 1938) // Issues of Science of Law. 2009. № 1-2.
№ 12 (TOM XCVII) ^EKABPb 2014
of the science of law — socially oriented jurisprudence.
The legal construction of understanding the law at the next stage of conceptual evolution of the legal theory was complemented with the essential aspect and element of the actual contents of law — legal archetypes and legal values, i.e. legal consciousness. The new outlook on law has revealed the demand to include in its subject to be studied further not only political and social grounds and terms of its existence and reproduction but also socio-cultural aspect — perception, understanding and relation to law. This stimulates the formation of a new disciplinary area in the structure of the science of law — epistemological or cognitive jurisprudence. Thus the dogmatic view on law as integrity of generally obligatory or sanctioned behavioral rules has been modified initially in the framework of the behavioral paradigm about law as a process of realizing of regulatory prescriptions in the form of legal relationship and later complemented with understanding law as a system of legal values, legal ideas and doctrinal arrangements. This process has been launched by the logic of legal «challenges and feed-backs» and influenced by various and numerous factors of the development of the science of law (external and internal, substantive and ideal).
One should also mention the fundamental fact of the conceptual evolution of the science of law in understanding its subject. The formal widening of the boundaries of the theory of law (norm -legal relationship — legal consciousness) tended not to change the main officially sanctioned positivist (etatistic, voluntaristic, legalistic) points of view on the subject of understanding the nature, the essence and social designation of state and law15.
The epoch of sanctioned pluralism in approaches and opinions on the issue of authenticity of law was followed by the epoch of unlimited conceptual pluralism.
Visualizing of the full amount of contemporary versions, alternatives, positions and critical opinions on understanding law and the idea of state and law is the task that has very poor perspective and may hardly be solved at the present stage of the evolution of the science of law.
Positivism has no intention to yield its grounds in the science of law especially in the legal practice area. As far as the opponents of the formally dogmatic jurisprudence are concerned they are involved in the process of seeking their own self-determinations16.
5. In the foundation of the self-determination of the post-classical jurisprudence or limitless plu-
15 Golunskiy S.A., Strogovich M.S. The Theory of State and Law. M., 1940.
16 Varlamova N.V Understanding of Freedom, Equality and Justice in the Context of Libertary Theory of Law // Russian Annual of the Theory of Law. SPb., 2009. № 1.
ralism there are rather significant aspects of the legal reality that have failed and simply could not get into the field of view of the classical positivism.
The phenomenological theory of law, communicative jurisprudence, anthropological deviation in the theory of state and law alongside all the differences in the approaches and in the language of discussing and presenting arguments in favour of their subjective-methodological positions are united due to a single fundamental source — attention to human measurement of law and state17.
Institutional jurisprudence and humanitarian jurisprudence may find and do find themselves in the principle of ontological presence of subjectivity and concrete-individual aspect at all the levels of the existence of state-and-law phenomena. The institutions of state and law are functions of social communication of concrete individuals and their unions (ethnic, religious, linguistic, imaginary, virtual) in the system of coordinates of a given socio-culture or given historical period and historical space.
The socio-regulatory communication per se is a universal category characterizing all possible historical forms of existence of social relations systems and ensuring their reproduction of political and legal institutions in the past, present and future18. The socio-regulatory communication is not only the issue of statuses, competences, positions and roles.
It bears the impact of the personal features of the participants of social communication, filled with emotions and sorrows of due and undue relations order. Imaginary or desirable state of present-day law and order constitutes an organic part of the legal reality that quite often enjoys more legal importance than the one that is virtually existing at the moment.
The socio-regulatory communication is a legal space where real and imaginary phenomena, positivist and metaphysical laws coexist simultaneously and mutually define each other.
6. Legal communication as the process of exchange of real and symbolic actions and meanings, signs and ideas has its regulatory ontology, i.e. its proper form of expression — legal text, its proper regulatory grammar — legal language and rules of its application and interpretation. Legal text is a complicated phenomenon. It carries substantive and ideal dimensions. This phenomenon at the same time reveals the forms of legal reality reflection — legal images and legal doctrines as well as the forms of its existence — legal archetypes and institutions. The historical dynamics and statics of legal text development are determined by the historical dynamics and statics of legal text development or legal discourse development that is viewed
17 Razuvaev N.V. The Subject of Law as a Historical-Cultural Category // Annual of the Libertarian Legal Theory. Issue 1. M., 2007.
18 Mamut L.S. The Legal Communication. Essay on Theory. M., 2011.
as the way of legal language actualization and reproduction.
Legal language appears in various forms of its practical and theoretical existence — it exists as the language of legal constructions and decisions, it is also the language of legal notions and concepts, it is revealed as the language of legal images and symbols.
Practical legal language has its own mode of expression — a dispositional one and an imperative one. All the diversity of the legal forms of the social relations, organization is clearly revealed within their boundaries. The two modes of the practical legal English expression correspond to the proper modes of the scientific legal language (descriptive, prescriptive and evaluative). The same is true regarding the languages: the languages of describing and classifying of legal phenomena match the languages of dogmatic definitions, formal theories, legal evaluations and qualifications.
Legal text and legal language are products of definite historical epochs. Their development and transformation are realized within the framework of a certain social system, socio-cultural traditions, economical, political and doctrinal realities19.
The introduction into scientific texts such categories as «legal text» and «legal language» entails significant changes and renews epistemological perspective in the evolution of the legal theory itself. These general categories essentially absorb all the possible demonstrations of the legal origin in general — its ontology, phenomenology and axiol-ogy, they express mental, institutional, regulatory and socio-cultural grounds and living activity of the system of law as it is and also the mechanisms of its global reproduction.
Legal language and legal text form the general subject of the science of law in general and of the theory of law. These are objective forms of existing of legal picture of the world absorbing legal image, legal relationship and legal understanding.
The categories «legal text» and «legal lan-guage» allow to describe and present legal reality in the framework of correlations of its historical context and metatext or socio-political and socio-cultural (mental) environment and reproduction, i.e. in the framework of definite historical social practices of foundation and development of law and basic legal notions — legal doctrines, ideas and values determining its contents, sources and different forms. Hence there is the origin of the main set of problems and topics of a new legal theory20.
19 Izenstadt S.N. Culture, Religion and Development in the North American and Latin American Civilizations // Social Sciences International Journal. 1993 № 1; Chetvernin V.A. The Historical Progress of Law and Types of Civilizations. Annual of the Libertarian Legal Theory. Issue 2. M., 2009; Lukasheva E.A. Man, Law, Civilizations: Regulatory-Axiological Dimension. M., 2009.
20 Maltsev G.V. Social Basis of law. M., 2007.
7. Actualizing of developments of the scientific reflection in the structure of the theory of law, for instance such as the language of legal communication or legal exchanges and relationships, the language of legal discussions or legal discourses, the language of perception and attitude to law or the legal images, the language of mythologies and understanding the law as well as various world legal pictures alters and enriches to a great extent the subject law of the science of law in general.
The most important thing in the framework of the linguistic paradigm (or if you like it, within the boundaries of the linguistic turn in the description and explication of the legal phenomena) is that there eliminates the meta- juridical conflict between positivist and neo-positivist options of the understanding the law, between the classical and the post-classical jurisprudence, it is regarded as irrelevant both in legal axiology and in legal epistemology.
In this respect different versions of understanding the law provide the phenomenon that implies various doctrinal forms of designing, interpreting and representing legal text and its inherent categorical language. Since the reality of law is connected and is defined by the language of discussing the law, it is legal language in terms of its theoretical and practical implementation that forms the basic subject of theoretical jurisprudence.
The structure of the subject of the scientific discipline defines the structure of the discipline itself, and the given subject of the scientific discipline appears to be a historical category with variable contents, that is why it becomes possible to single out simultaneously its conceptual nucleus and its periphery in the general structure of the scientific discipline.
Every historical epoch in the development of the scientific theory would find a definite reflection in its structure, and as a consequence in the transformations in the system of relationship between the internal doctrinal nucleus and the external periphery of theory of law, which finds sufficiently ample confirmation in the history of the development of political and legal studies, that proves to be the history of formations and alterations of metajuridi-cal approaches in understanding and explaining of the legal and state phenomena.
8. The methodological significance of the science of law is determined in the first place by its ability to be the subject of its own self-reflection or the subject of defining and re-defining of its own research subject and its own structure21. That is why the present stage of the theory-and methodology evolution of the science of law is marked by the possibility to single out in its general system three rather independent research levels: phenomeno-logical, instrumental and epistemological ones.
21 The Evolutionary Epistemology. Anthology. SPb., 2012.
№ 12 (Том XCVII) ДЕКАБРЬ 2014
At the phenomenological level the research subject is composed by the «state» and «law» institutions; this is the level characterized by the precise theories state and law theories within the framework of their mutual relationships and definitions. At the instrumental level the subject of the scientific reflection is the development and composition of the instruments related to general legal categories and definitions within the framework of the science of law. It is the level of the language proper of the theoretical jurisprudence or its notional cluster in the framework of the given historical epoch in the development of the scientific discipline. At the epistemological level the science of law as it is appears the subject of learning. This is the metatheoretical level of the science of law or the theoretical level of the science of law. The central component of its contents is presented by the critical arguments of the theoretical and methodological foundations of the science of law and the search of new methods and approaches to learning state and law.
Self-reflection of the theoretical jurisprudence concerning itself should be aimed first of all at determining its own theoretical and methodological status within the system of general and special branches of law as well as at the revealing the structure of the interdisciplinary ties in their common system that predominantly suggests the development and constructing the theory of the subject, the theory of the structure, the functional theory, the theory dealing with the methods of the science of law in general; it also should be aimed at the development of the theory of the interdisciplinary ties and their influence on the development of the theoretical jurisprudence. In this aspect the science of law appears in the form of existence and change of the basic research approaches and paradigms in studying state-and-law phenomena.
It is obvious that the beginning of any theory lies in the plain of its subject and structure set of problems, its conceptual and methodological basis. The classical tradition of thinking about law links the topical circle of the relevant problems of the state and law theory to the requirements of the legal practice development, suggesting that these problems are at the same time critical for the existence and development of the law and state itself or state-and-law reality. In terms of classical jurisprudence the issue of institutionalization of legal
References:
reality through the process of its categorization and conceptualization has no ground for existence. Its subject exists in the form of the reflection of this reality in the framework of the cognitive means that have been designed by the theory of law itself.
The introduction into scientific texts the concept of «metatheory of the theory of law» has provided for the significant changes in terms of the epistemological prospect of the relationship between the law reality and discussions on law. Metatheory, or the theory of the state- and-law theory, is directly connected and predetermined by a certain version of understanding the law, that is actually forms its basis.
The formation of different competing versions of understanding state and law it is not only the problem of relationship between different viewpoints on their essential values and their social significance, their forms and contents, it is at the same time (and this might even be more important) the formation different real and fake legal ontologies of setting up, developing and existing of the institutions of state and law.
Understanding the law appears to be not only the doctrinal-regulatory idea of state and law, it is also the form of state-and-law existence. The institutions of «state» and «law» are nothing but ideas of state and law converted into the core of the subject. They are realized simultaneously through legal doctrine, legal epistemology, legal politics and law politics.
State-and-law reality has foundations in terms of subject and will, doctrines and mentality. It lives up to its own logic of producing and reproducing of state-and-law institutions and legal theories, concepts and notions. In this respect the relevant problems of the development of state and law and the relevant problems of the theory of state and law are interrelated categories, as relevant problems are the ones whose conceptual or scientific evolution is the condition or the metafoundation of the development of state and law, the science of law in general.
Hence in legal literature and in legal practice we witness the consistency and relevance in terms of dealing with the issue of the subject and the system of legal regulation as well as the issue of the subject and the structure of the science of law in general, and also its structural part — the theory of state and law.
1. Izenstadt S.N. Culture, Religion and Development in the North American and Latin American Civilizations // Social Sciences International Journal. — 1993 — № 1.
2. Bogdanova N.A. The System of Constitutional Law Science. — M., 2001.
3. Varlamova N.V. Nonpositivist Concept of Legal Dogmatism // Russian Justice — 2007. — № 10 (18).
4. Varlamova N.V. Understanding of Freedom, Equality and Justice in the Context of Libertary Theory of Law // Russian Annual of the Theory of Law // 2008. — SPb., 2009. — № 1.
5. Varlamova N.V. Typology of Understanding the Law and Modern Tendencies of the Development of the Theory of Law. M., 2010.
6. Golunskiy S.A., Strogovich M.S. The Theory of State and Law. — M., 1940.
7. Deev N.N. From the History of Origin and Interrelation of Notions and Terms «state» and «nation» // Formation of the Constitutional State in Post-totalitarian Russia. — Issue 2. — M., 1998.
8. Deev N.N. Statehood and Ethnopolitical Development // Political Problems of the Theory of State. — M., 1993.
9. Kornev A.V. The Conservative and the Liberal Theories of State and Law in Russia (XIX-XX centuries). — M., 2003.
10. Krasavchikov O.A. Categories of the Science of Civil Law // Selecta V. 1-2. — M., 2005.
11. Kubbel L.E. Potestary and Political Ethnography // Researches in General Ethnography. — M., 1979.
12. Lazarev V.V. Legal Science: Modern Situation, Challenges and Prospects (the Theoretician's Reflections) // Lex Russica. — 2013 — № 2.
13. Lapaeva V.V. The Types of Understanding the Law: Legal Theory and Practice. — M., 2012.
14. Lukasheva E.A. Man, Law, Civilizations: Regulatory-Axiological Dimension. — M., 2009.
15. Maltsev G.V. Moral Basis of law. — M., 2008.
16. Maltsev G.V. Social Basis of law. — M., 2007.
17. Mamut L.S. The Science of State and Law: the Necessity of Radical Renovation // Sciences of Philosophy. — 1989. — № 11.
18. Mamut L.S. The Legal Communication. Essay on Theory. — M., 2011.
19. Medushevskiy A.N. The Cognitive Theory of Law and Legal Reality Constructing // Comparative Constitutional Review. — 2011. — № 5.
20. The Main Tasks of the Soviet Socialist Law: the Report at the First Conference on the Issues of the Science of Soviet State and Law (July 16-19, 1938) // Issues of Science of Law. — 2009. — № 1-2.
21. Pershits A.I. The Problems of Regulatory ethnography // Researches in General Ethnography. — M., 1979.
22. Puchkov O.A. Legal Anthropology and the Development of the Science of State and Law (Theoretical Bases): author's thesis ... D.Sc. (Law). — Ekaterinburg, 2001.
23. Razuvaev N.V. The Subject of Law as a Historical-Cultural Category // Annual of the Libertarian Legal Theory. Issue 1. — M., 2007.
24. Strashun B.A. Does the Science of «The Theory of State and Law» Exist? // Scientific Works of the Moscow State Academy of Law. 2001. — P. 99-101.
25. Khabermas Yu. To Architectonics of the Controlled Discourses // Between Naturalism and Religion. Articles on Philosophy. — M., 2011. — P. 80-86.
26. Chestnov I.L. The Postclassical Theory of Law. — SPb., 2012.
27. Chetvernin V.A. The Historical Progress of Law and Types of Civilizations. Annual of the Libertarian Legal Theory. Issue 2. — M., 2009.
28. Chetvernin V.A. The Problems of the Theory of Law and State. — M., 2007.
29. Chetvernin V.A., Yakovlev A.V. The Institutional Theory of Law. — M., 2009.
30. The Evolutionary Epistemology. Anthology. — SPb., 2012.
Перевод Е.В. Владимировой, ст. преп. кафедры английского языка № 2 Университета имени О.Е. Кутафина (МГЮА)
№ 12 (Том XCVII) ДЕКАБРЬ 2014
