The subject and method of theory of state and law

Theory of State and Law

 

The  subject and method of theory of state and law

 

       Theory of State and Law - a system of knowledge about the state and legal phenomena related to its concept and a natural necessity arising from the dominant mode of production in society.

 

The features of the subject theory of law are:

1. The total specific patterns: the appearance and movement of history of state and law, development and operation of State and Law, transition from one type to another state, the development of democracy, rule of law, the formation of the rule of law;
2. The basic fundamental questions: the nature, type, form, function, structure and mechanism of action of the state and law, the evolution of states, the ratio of state and set it right, the characteristics of modern political views in a particular country;
3. General theory - the theory of state and law formulates the basic theoretical concepts or categories of law, which are governed by and enjoy the other sciences, is the foundation of all other human sciences;
4. The unity of science - is a unified science, which are the subject of state and law, government and legal phenomena in their relationship, interaction.

      From the title of this jurisprudence we learn about the subject of  her study are two interconnected institutions - the state and law. This is not to mix the institutions of the state and law as certain forms of social relationships and the science of them - the theory of state and law. The state and the right - the complex social institutions with the various parties, the various manifestations.          Theory of State and Law, reflects the general and essential in these phenomena, it is the science of the general laws of emergence, operation and development of the state and law as social institutions, their nature, place and role in society. The subject of the theory of law is the study of patterns of occurrence, development and change of state and legal phenomena.

 

         The methods of theory of state and law

    

      Methodology - the approach to the phenomenon, systematic way of scientific knowledge and truth. F.Bekon - English founder of the methodology of experimental science - compared the method with a lantern, arguing that even the lame walking in the dark with a flashlight on the road, to surpass the one who is running without light, up hill and down dale. The methodology is a system of scientific methods, a set of methods and techniques of research to disclose the essence of the subject, the phenomena of reality. With it is comprehended the essence of state-legal phenomena.

 

 

Scientific methods of research and the state of law     

The most common universal methods of investigation are:   

= Metaphysics;   

= Dialectic.

At the metaphysical method of state and law are seen as eternal and immutable institutions that existed, exist and will exist independently of the will of man.     

When the dialectical method the state and law considered in their development.

Dialectic varieties are:   

- Idealism (objective and subjective);   

- Materialist dialectics.

The idealist dialectics can act as an objective or subjective idealism.     

Objective idealism connects causes and functioning of the state and law, with divine power or the world or objective mind, subjective idealism - to human consciousness, the will of the people.      

Materialist dialectics holds that the state and the right to development, in particular historical circumstances and in conjunction with other events. From the point of view of the materialist dialectic of state and law arose as a result of socio-economic processes in society - the division of labor, the emergence of private property and classes. In the Soviet era, the method of materialist dialectics was a major in the study of state and law.

 

The main general methods of study are:   

 ♦ analysis;   

 ♦ synthesis;   

 ♦ systematic approach;   

 ♦ functional approach.

 

    Analysis - the separation of complex theoretical material about the state and the law on the part of the study, and by parts.    

   Synthesis - the study of public law issues through their associations and consideration as a whole.    

 The systems approach - the perception of the material being studied as a single system, the identification and study of the various links in the system under study.    

Functional approach - defining the functions of various state-legal phenomena, the mechanisms of their interaction.

 

Special  and private methods of learning    

 

 

  Common methods can not reveal the peculiarities of state-legal phenomena. Along with them are used, and special methods. These include: a comparative legal method, ie comparison of different state legal systems in different societies and environments.     

Concrete sociological - the account of social factors. Used observation, questionnaires, interviews, experiments, etc.     

The formal-logical (dogmatic) - used in the study of normative legal systems of the parties gives the methods of interpretation of legal norms and the formal analysis of the current legislation. Formalism - the inalienable property rights.     

Systematic and structural - examines the state and the law as a complex institution and a process.     

 

Legal method of modeling coming from the idea of similarity.  

The method of going from the synergy - the science of spontaneous, self-organizing processes incidental.     

The development of science and technology (computers, computer, etc.) introduces a number of private-specific methods.

Private-scientific methods - methods is based on advances in engineering, natural sciences and humanities.

      Private-scientific methods  are:   

- "Mathematics;    

- "Legalistic;    

- "Comparative law;    

- "Statistic;    

- "Concrete sociological;     

- "Cybernetic;    

- "Classification,    

- "Legal analogy, etc.

 

    Legalistic approach allows us to study and determine the basic legal concepts , identify their symptoms , the classification of concepts to interpret the content of legal norms and their meaning , etc.     

When comparative legal method is a comparison of regulations and legal systems in general , the definition of the general laws . It allows you to compare the general and the special characteristics of the legal systems and their elements (laws, legal practices , etc.) .     

The statistical method used in the study of state-legal issues in terms of quantitative indicators based on statistical information. Using a statistical analysis allows us to investigate the quantitative indicators of a state-legal phenomenon.      

Specifically , the sociological method provides clarification of views on the state of society and the rights and allows you to use special techniques ( questionnaires , interviews , observation , testing, telephone surveys , etc.) to obtain data on the actual behavior of actors in the public and legal spheres.     

Cybernetic method produces a study of state and law , using modern technology : mathematical models , algorithms , computer programs , etc.     

These methods are not exhaustive in the study of the theory of state and law.

 

 

References:

1. Bulgakova A.K. ``The theory of state and law``
2. Ibraev A. & Sapargaliev G. ``The theory of state and law``
3. Internet resource: http://webarhimed.ru/page-152.html

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AL-FARABI KAZAKH NATIONAL UNIVERSITY

Faculty of International Relations

Department of International Law

 

 

 

Theory of State and Law

 

The  subject and method of theory of state and law

 

 

 

 

 

Supervisor: Aiupova Zaure Karimovna

     Made by student of  1st course Bahtiyarkyzy Albina

 

 

 

 

Almaty - 2013