The theory of state and law is one of the fundamental legal disciplines, the subject of which is the general laws of various legal systems, as well as the emergence, formation and development of forms of government. An equally important element of this science is the study of the features and methods of functioning of state and legal institutions. Such a definition determines the structure of the theory of the state and law as a science.
Structure
The construction of this science is based on the existence of two large blocks. Each of them is divided into smaller elements, and the main ones are: theory of the state and theory of law.
These blocks are complementary, they reveal common patterns and problems (for example, the origin and evolution of state and legal norms, the methodology for their study).
When analyzing the essential elements of the theory of law, it is necessary to take into account the specific content of the knowledge gained. From this point of view, the following elements can be distinguished in it:
- the philosophy of law, which, according to some researchers (S. S. Alekseev, V. S. Nersesyants), represents the study and understanding of the very essence of law, its correspondence to the main philosophical categories and concepts;
- sociology of law, that is, its applicability in real life. This element includes the problems of the effectiveness of legal norms, their borders, as well as the study of the causes of offenses in various societies;
- positive theory of law, dealing with the creation and implementation of legal norms, their interpretation and mechanisms of action.
Versions of State Origin
At different stages of its development, mankind tried to comprehend how the legal norms governing their life came about. No less interesting for thinkers was the question of the origin of the political system in which they live. Using modern concepts and ideas, the philosophers of antiquity, the Middle Ages and modern times formulated a number of theories of the origin of the state and law.
Thomism Philosophy
The famous Christian thinker Thomas Aquinas, who gave his name to the philosophical school of Thomism, developed theological theory based on the works of Aristotle and St. Augustine. Its essence is that the state was created by people by the will of God. This does not exclude the possibility that power can be seized by villains and tyrants, examples of which can be found in the Holy Scriptures, but in this case God deprives the despot of his support, and an imminent fall awaits him. This point of view was not accidentally formed in the XIII century - the era of centralization in Western Europe. Thomas Aquinas theory gave authority to the state, combining high spiritual ideals with the practice of the administration of power.
Organic theories
A few centuries later, with the development of philosophy, a corpus of organic theories of the origin of the state and law appeared, based on the notion that any phenomenon can be likened to a living organism. Just as the heart and brain perform more important functions in comparison with other organs, sovereigns with their advisers have a higher status in comparison with peasants and merchants. A better organism has the right and opportunity to enslave and even destroy weak formations, as the strongest states conquer the weakest.
State as violence
From organic theories grew the concept of the violent origin of the state. To know, with sufficient resources, subjugated the poor tribesmen, and then fell upon neighboring tribes. It followed that the state appeared not as a result of the evolution of internal forms of organization, but by virtue of conquest, submission, and coercion. But this theory was almost immediately rejected, because, taking into account only political factors, it completely ignored socio-economic ones.
Marxist approach
This flaw was eliminated by Karl Marx and Friedrich Engels. They reduced all types and forms of conflict in both ancient and modern societies to the theory of class struggle. Its basis is the development of productive forces and production relations, while the political sphere of society is an appropriate superstructure. The fact of subjugation of weak tribesmen, followed by weak tribes or state formations from the point of view of Marxism, is determined by the struggle of the oppressed and oppressed for the means of production.
Modern science does not recognize the primacy of any particular theory using an integrated approach: the most significant achievements are taken from the concepts of each philosophical school. It seems that the state systems of antiquity were indeed built on oppression, and the existence of slaveholding societies in Egypt or Greece is not in doubt. But this also takes into account the shortcomings of theories, such as the exaggeration of the role of socio-economic relations, characteristic of Marxism, while ignoring the non-material sphere of life. Despite the abundance of opinions and views, the question of the origin of state-legal institutions is one of the problems of the theory of state and law.
Theory methodology
Each scientific concept has its own analysis methodology, which allows to acquire new knowledge and deepen existing knowledge. The theory of state and law is no exception in this regard. Since this scientific discipline studies the general state-law laws in dynamics and statics, the final result of its analysis is the identification of the conceptual apparatus of legal science, such as law (as well as its sources and branches), state institution, legality, the mechanism of legal regulation and etc. The methods used for this by the theory of state and law can be divided into general, general scientific, private scientific and private legal.
General methods
Universal methods are developed by philosophical science and express categories that are common to all areas of knowledge. The most significant techniques in this group are metaphysics and dialectics. If the former is characterized by an approach to the state and law, as to eternal and unchanging categories that are insignificantly related to each other, then dialectics proceeds from their movement and change, contradictions both internal and with other phenomena of the social sphere of society.
General scientific methods
General scientific methods, first of all, include analysis (that is, the allocation of the constituent elements of any major phenomenon or process and their subsequent study) and synthesis (combining the constituent parts and considering them together). At different stages of the study, system and functional approaches can be used , and to verify the information they receive, the method of social experiment.
Private science methods
The existence of private scientific methods is due to the development of the theory of state and law in connection with other sciences. Of particular importance is the sociological method, the essence of which is the accumulation through questionnaires or observation of specific information about the behavior of state legal entities, their functioning and evaluation by society. Sociological information is processed using statistical, cybernetic and mathematical methods. This allows you to determine further areas of research, identify contradictions in theory and practice, justify, depending on the situation, the possible ways of further development or amortization of the consequences of the tested theory.
Private Law Methods
Private law methods are directly legal procedures. These, for example, include the formal legal method. It allows you to understand the existing system of legal norms, determine the boundaries of its interpretation and methods of application. The essence of the comparative legal method is to study the similarities and differences that exist in different societies at various stages of their development, legal systems in order to identify the possibilities of applying elements of foreign legislative norms in this society.
The functions of the theory of state and law
The existence of any branch of scientific knowledge involves the use of its achievements by society. This allows us to talk about the specific functions of the theory of state and law, among which the most significant are:
- explanation of the basic patterns in the state-legal life of society (explanatory function);
- forecasting the development of state legal norms (prognostic function) ;
- deepening existing knowledge about the state and law, as well as acquiring new ones (heuristic function);
- the formation of the conceptual apparatus of other sciences, in particular, legal (methodological function);
- the development of new ideas in order to positively transform the existing forms of government and legal systems (ideological function);
- positive impact of theoretical developments on the political practice of the state (political function).
Constitutional state
The search for the most optimal form of political and legal organization of society is one of the most important tasks of the theory of state and law. The rule of law at the moment appears in this regard as the main achievement of scientific thought, which is confirmed by the obvious practical benefits from the implementation of his ideas:
- Power must be limited by inalienable human rights and freedoms.
- Unconditional rule of law in all areas of society.
- The separation of powers recorded in the Constitution into three branches: legislative, executive and judicial.
- The existence of mutual responsibility of the state and citizen.
- Compliance of the legislative framework of a particular state with the principles of international law.
The meaning of the theory
So, as follows from the very subject of the theory of state and law, this science, unlike other legal disciplines, is focused on the study of existing systems of legislative norms in the most abstract form. The knowledge obtained by the methods of this discipline form the basis of legal codes, form an idea of the functioning of laws, and outline ways for the further development of society. This and much more allows us to speak with confidence about the central position of the theory of state and law in the general system of legal knowledge and, moreover, to play a unifying role in it due to its relationship with other humanities.