Legal encyclopedia. Letter T

THEORY OF LAW.

In theory, state and law distinguish several theories of law, namely:

1. Sociological theory of law;
2. Natural law theory of law;
3. Historical theory of law;
4. Psychological theory of law;
5. Normative theory of law. The natural-legal theory of law appeared

In ancient Greece, ancient Rome and completed in the XVII - XVIII centuries. Its representatives are Hobbes, Locke, Russo, Radischev, Montesquieu.

Representatives of the theory contrast two systems of law:

1. Natural law;
2. Positive law.

Natural human rights arise and belong to a person from the moment of his birth, they have an inalienable character. These include the right to life, liberty, property, family. All the activities of the state and society must be built on the basis of natural rights and freedoms of man, and their source is the human essence.

A positive law is a law existing in the state, i.e. System of normative acts. A positive right is not always fair, and ideally it must be in accordance with natural law. Laws must correspond to the law, serve the good of society.

Proponents of natural law theory identify law with morality and argue that law should correspond to morality, since the basis of law is justice, equality and freedom.

The natural-legal theory has

Actual meaning, as expressed in its

Consolidation in the constitutions of most countries,

Including in the Constitution of the Russian Federation. Besides,

Theory played an important role in combating

Feudalism, which was at that time, and in

Approval of a more liberal

Legislation.

The sociological theory of law arose in the XX century. in Europe. This theory is called the theory of "living" law. Its representatives are Erlich, Muromtsev, Zhenya.

The content of the theory is as follows.

The right in sociological theory is embodied not in natural rights and laws, as in natural-legal theory, but in the implementation of laws. The concept of law includes such documents as judicial decisions, sentences and agreements. Law - legal actions, legal practice, law and order, application of laws. The right is the realized behavior of subjects of legal relationships (individuals and legal entities), because representatives of this theory call it "alive."

Only in the process of legal practice the law is filled with real content, therefore, subjects of lawmaking are the judges.

The sociological theory of law has both positive and negative features.

What is positive is that its representatives focused on the realization of the law, giving it the main role.

Negative in this theory is the fact that lawmaking functions are performed by judges, and this can create danger for arbitrariness and abuse of power.

The historical theory of law arose in the XVIII - XIX centuries. Its representatives are Savigny,

Pukhta, etc. The historical theory of law is the opposite of natural-legal theory.

This theory is based on national traditions that determine the content of the rights and freedoms of citizens of the country.

Representatives of historical theory define law as a historical phenomenon, which is not established by the treaty. Law is identified with legal customs, and laws are derived from customary law.

In addition, supporters of the theory denied the natural rights of man and considered slavery a justified phenomenon.

The positive is the statement that the right of each country has its own characteristics and this historical aspect must be taken into account. In addition, representatives of the theory paid great attention to legal customs.

Negative is that historical theory emerged as a reaction to the natural-legal theory and refuted the existence of natural human rights.

The psychological theory of law arose in the XX century. Representatives of this theory are Ross, Petrozhitsky.

Psychological theory proceeds from the fact that the psyche of people is a factor determining the development of society, including morality, law, the state. The concept and essence of law supporters of the theory derive not from the activity of the legislator, but from psychological regularities.

Psychological patterns - the legal emotions of people who arise from the feelings of duty and authority.

Legal experiences are divided into:

1. Positive rights that come from the state;
2. Intuitive rights, which are the regulator of human behavior, i.e. A valid right.

The psychological theory of law, like other theories, has positive and negative features.

It is positive that she focused on the psychological moment, on the role of legal awareness in legal regulation and in the legal system of society. However, this theory exaggerates the role of psychological factors at the expense of socio-economic, political cultural.

Normativist theory of law arose in

XX century. Representatives of this theory are Kelzen, Novgorodtsev, and others.

It defines law as a system of norms. At the head of this system is the basic rule adopted by the legislator, which is sovereign. The remaining norms derive legality from the norms of greater legal force. And finally, the basis of the system of norms is made up of individual acts (decisions of courts, contracts, regulations), which must correspond to the basic norm.

Positive in the normative theory is that it emphasizes one of the properties of law - normative - and conducts a hierarchy of legal norms according to the degree of their legal force. Normativity is associated with the formal certainty of law. The state establishes the basic norm, it means that it has a wide influence on social development. However, representatives paid too much attention to the formal side of the law, and not to its content. In addition, supporters of normative theory underestimated the socio-economic, political and cultural factors in the development of law.