Philosophy in jurisprudence lectures. Philosophy of law as an ideological and methodological basis of legal thinking

Philosophy of law in the system of philosophy and jurisprudence.

In terms of its status, the philosophy of law is a complex, related discipline located at the intersection of philosophy and jurisprudence.

The issue of legal philosophy can be approached from two opposite sides: from philosophy to law and from law to philosophy.

The first way to approach philosophical and legal issues (philosophical approach to law) is associated with the extension of a particular philosophical concept to the sphere of law. This turn of philosophy to the understanding of legal reality, especially characteristic of the Enlightenment, turned out to be very fruitful for philosophy itself.

In the field of legal philosophy, a unique test of the cognitive power of one or another philosophical concept, its practical consistency in one of the most important spheres of the human spirit takes place. All this gives every reason to conclude that without reflection on the foundations of law, philosophical understanding of legal reality as a whole, a philosophical system cannot be considered complete.

Another way of forming a philosophy of law (legal approach to law) is directed from solving practical problems of jurisprudence to their philosophical reflection. For example, from understanding such private legal problems as the foundations of criminal law, guilt and responsibility, fulfillment of obligations, etc., to posing the question of the essence of law. Here, the philosophy of law appears as an independent direction in jurisprudence, a specific level of study of law itself.

The problem of the disciplinary status of legal philosophy. Due to the existence of two different sources of formation of the philosophy of law, two main approaches to understanding its status have emerged.

The first approach considers the philosophy of law as part of general philosophy and determines its place among such disciplines as moral philosophy, philosophy of religion, philosophy of politics, etc. In accordance with this approach, legal philosophy refers to that part of general philosophy that “prescribes” a person the necessary manner behavior as a social being, i.e. practical philosophy, the doctrine of what should be.

The second approach relates the philosophy of law to branches of legal science. From this point of view, it is the theoretical foundation for the creation of positive law and the science of positive law. Philosophy of law here means a science that explains in the “last resort” the meaning of legal principles and the meaning of legal norms.

Due to the noted circumstances, one may get the idea that there are two philosophies of law: one developed by philosophers, the other by lawyers. In accordance with this assumption, some researchers even propose to distinguish between the philosophy of law in the broad sense of the word and the philosophy of law in the narrow sense of the word. In fact, there is only one philosophy of law, although it draws from two different sources. The first source of legal philosophy is general philosophical developments of legal problems. Its second source is associated with the experience of solving practical problems of law. Thus, the philosophy of law is a single research and academic discipline, which is determined by its main question, only in relation to which certain problems are relevant to it.

The general task is to reflect on the foundations of law.

In Hegel's system, the philosophy of law is not just part of one of the fundamental sections of philosophy, but covers all social and philosophical issues. In other philosophical systems, for example, S.

Frank it is a section of social philosophy, which is called social ethics. As for the social philosophy of Marxism (historical materialism), within the framework of which the problems of law were considered, its followers studied it only in the aspect of identifying the social functions of law. Therefore, the philosophy of law as an independent discipline within the framework of the socio-philosophical doctrine of what is and what is necessary, where the issue of what is proper was not addressed, could not take shape.

The analytical philosophical tradition (positivism) considers the philosophy of law as an integral part of political philosophy, denying it the status of an independent discipline. In modern Western philosophy, the problems of the philosophy of law are most often considered within the framework of philosophical anthropology. Even social and moral philosophy, in close connection with which the problems of the philosophy of law are considered, have undergone significant anthropological transformation under the influence of such philosophical movements as existentialism, phenomenology, hermeneutics, philosophical anthropology, psychoanalysis, etc.

Consequently, it is quite difficult to indicate any single philosophical section of which the philosophy of law would be a part. At the same time, it is quite obvious that it is most closely connected with social, political, moral and anthropological philosophies, each of which focuses on one of the factors in the formation and study of law: social, moral-value, political, anthropological.

Thus, political philosophy considers the question: what is power and how power and law relate. Social philosophy: what is society and how society and law relate. Moral philosophy: what is morality and how morality and law relate. Anthropological philosophy: what is man and how man and law relate. The philosophy of law poses a general question: what is law and what is its meaning. Therefore, she is undoubtedly interested in questions about how law is connected with such phenomena as power, society, morality and man.

Relationships between legal philosophy and other disciplines. Philosophy of law is gradually taking shape as an independent legal discipline of general scientific status and significance. In this regard, it is important to distinguish it from related disciplines:

Theory of state and law (combines the achievements of a complex of sciences and to a small extent uses the ideological and semantic level of understanding of legal reality);

Sociology of law (considers law as a variant of social action, studies the immediate life of law and trends in its dynamics);

History of political and legal doctrines (studies the development of theoretical concepts and specific achievements of the authors);

History of state and law - domestic and foreign (considers the historical facts of the development of law and their reasons, but not the meaning of the evolution of law).

And in conclusion, the question should be distinguished between the main elements of the system of studying law. According to S.G. Chukina, all the variety of ways to study law is “legislation”, consisting of three relatively independent sections:

Jurisprudence based on legal theory;

Philosophy of Law;

Social sciences and humanities that study the social and humanitarian aspects of the existence of law (sociology of law, psychology of law, anthropology of law and other disciplines).

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2. The place of the theory of state and law in the system of legal sciences
17. The place of the theory of state and law in the system of social and legal sciences.
13. The place of the theory of state and law in the system of social and legal sciences.
3 ROLE AND PLACE OF THE THEORY OF STATE AND LAW IN THE SYSTEM OF HUMANITIES AND LEGAL SCIENCES
1. The theory of state and law as a science, its object, subject and method. The place and role of the theory of state and law in the system of legal and social sciences

Subject of philosophy of law

In the history of philosophical and legal thought, there have been various approaches to defining the philosophy of law and its subject. Hegel formulated the subject of the philosophy of law as follows: “The philosophical science of law has as its subject the idea of law - the concept of law and its implementation.” Frank understood the philosophy of law as a doctrine of a social ideal. “He wrote the philosophy of law - according to its main traditionally typical content, it is the knowledge of the social ideal, the understanding of what a good, reasonable, fair, “normal” structure of society should be.”

In modern philosophy of law, its subject is also defined differently. From the broadest definitions, such as those of the famous Russian legal philosopher V.S. Nersesyants: “philosophy of law studies the meaning of law, its essence and concept, its foundations and place in the world, its value and significance, its role in human life, society and the state, in the destinies of peoples and humanity,” to the narrowest, such as, for example, one of the leading Italian philosophers of law N. Bobbio, who believes that the only problem of the philosophy of law, which is, in fact, its subject, is justice.

Lukich noted “The very concept of philosophy of law is easy to define based on the already known concept of philosophy.” Philosophy of law is a special philosophy whose subject is not the whole world as a whole, not everything that exists as such, but only one part of it, law. However, since it is a philosophy, albeit a special one, it has all the features of philosophy, and the subject of philosophy as a whole is analogous to it.

If general philosophy is a doctrine about the ultimate foundations of being, then the philosophy of law can be defined as a doctrine about the ultimate foundations of law as one of the ways of human existence.

Alekseev notes that the philosophy of law is built in two scientific planes, philosophical and legal, but it is in the latter plane, where legal theories are developed on the basis of philosophy, and the subject field of legal philosophy arises. Kerimov reduces the subject of legal philosophy to problems of epistemology and dialectics.

The variety of approaches to the subject of legal philosophy is quite natural, since its definition involves identifying the researcher’s attitude to both philosophy and law. It can be assumed that there are as many approaches to the subject of philosophy of law as there are philosophical systems, and identifying the subject of philosophy of law is impossible without a clear definition of the researcher’s position on the phenomenon of law itself, i.e. what, in fact, should be investigated.

If general philosophy is a doctrine about the ultimate foundations of human existence, then, accordingly, the philosophy of law can be defined as a doctrine about the ultimate foundations of law as one of the ways of human existence. Using the approach of I. Kant, who defined the subject of general philosophy by answering the questions: 1) what can I know? 2) what should I do? 3) what can I hope for? 4) what is a person?1, the subject of the philosophy of law can be identified by asking the following questions: 1) what can I know about law? 2) what should I do according to legal requirements and why? 3) what can I hope for if these requirements are met or violated? In turn, they can all be reduced to one general question: what is a legal person or what is law as a way of human existence? The answers to these questions make it possible to clarify the nature of such a phenomenon as law and the subject of the philosophical discipline that studies it.

The above definitions of the subject of legal philosophy are based on the disclosure not of the essence of legal reality, but of its content and functions of law. The definition of a concept, resulting from the content of a phenomenon, is always nothing more than an incomplete, partial “grasping” of the essence or the identification of the essence of the first, second order, but not that deep essence that is identical to the law. When Hegel in the mentioned work writes that the philosophy of law is designed to reveal the “essence of law,” he always explains the “idea of law,” because according to his philosophy, an idea is the deep essence of any form of being. Hegel showed that the actual existence of the idea of law is abstract law, morality and morality. Thus, according to Hegel, the meaning of law is not axiological, but its ontological significance: its place and role in the life of man, society, the state as a moral, ethical and legal basis. Philosophy of law, like any science, explores law not only as an essence and phenomenon in their differences and relationships (coincidence or non-coincidence) and the desired unity, but, first of all, it is interested in the most general principles of legal reality and its knowledge. Moreover, legal reality is not only positive and natural law and the subject of legal philosophy - it is not law and law. V. S. Nersesyants specifies the subject of the philosophy of law as follows: this is the principle of equality in its manifestation 1. He notes legal phenomena of a normative-regulatory, institutional-power and behavioral nature, expressing the unified legal essence of the general legal principle of formal equality. This approach to the subject of legal philosophy narrows it to the research field of the libertarian-legal philosophical and legal concept. At the same time, science should study principles and laws that are objective in nature and not determined by subjective dimensions (social class, ethnic, state interests). There is no liberal, democratic or conservative biology or physics, and the subject of legal philosophy should not contain aspects of an ideological nature. Otherwise, there can be no talk of philosophy of law as a science. The subject of legal philosophy is principles, which are the most general foundations of phenomena. Aristotle also believed that philosophical teaching is the science of the most general foundations of the world and its knowledge. Philosophy is also a worldview, since the interpretation of these foundations and their determinative role may be different for different philosophers. Therefore, numerous philosophical views, teachings, concepts arise: materialistic, idealistic, pluralistic, pantheistic, deistic, theistic, atheistic. When philosophical and legal concepts are developed, along with philosophical and worldview orientations they contain socio-political ones. For example, the libertarian-legal interpretation of the subject of legal philosophy is not scientific, but ideological (bourgeois-liberal). The claims of its authors that only their concept of understanding law and the subject of the philosophy of law is the most developed is unconvincing, because it takes into account and in a transformed form the achievements (“reasons”) of previous less developed concepts are present, and, therefore, there is a semantic field for their proper understanding and presentation. In addition, this interpretation does not meet the requirements of scientific methodology. The laws of legal reality and their knowledge are the true subject of legal philosophy. Only the philosophy of law allows us to understand in legal reality the relationship, interaction, mutual determination of the objective and subjective, material and ideal, material and spiritual, individual, interindividual and supra-individual, personal and mass, social and biological, natural and existential, human and divine, freedom and responsibility , justice and equality, legal and illegal interests, boundaries and limits of the exercise of the rights of a citizen, individual, and person.

Normative approach.

Right and law are identical concepts.

Law is a hierarchical system of norms.

State interests dominate over personal ones.

Flaws:

Formal side (law is understood only as currently existing laws)

Exaggerated role of the state. Thus, law (normative approach) is a system of generally binding, formally defined norms emanating from the state, protected by it and regulating social relations.

Class-volitional approach. Some call this approach a little more simply - Marxist. Law (Marxist approach) is the will of the ruling class elevated to law.

Advantages:

Dependence of law on economics.

Relationship between state and law.

Flaws:

Exaggerated role of the class factor.

There is confusion with the question, what is the will of the class?

Sociological. Law (sociological approach) is those norms that take shape and develop in society itself; the state does not create them, but only “discovers” them. The law is only a vessel, filled with social relations.

Psychological. Law is understood as the consciousness of people, the emotions of perception of legal requirements by the addressees of the law, in other words - legal awareness, only in “the heads of people does law live and exist.” This approach transfers the existence of law into the mental sphere.

Philosophical. Law (philosophical approach) is a system of natural, inalienable rights that exist regardless of the will of the state. This approach quite correctly distinguishes between concepts such as “natural rights” and “law”.

Historical. Law has a self-organizing character and arises over time, in naturally occurring conditions.

Integrative. It implies a combination of all the above mentioned approaches. But it should be noted that it is impossible to simply take and combine the qualities of all approaches; in the system they acquire a completely different meaning and sum.

Postmodernism and law

Postmodernism as one of the main trends in global social life of the second half of the 20th century. can be considered, on the one hand, as the most important stage in the philosophical and aesthetic formation of human thought, and on the other hand, as evidence of the decline of the intellectual and artistic activity of mankind.

Postmodernism, according to the French philosopher J.-F. Lyotard, represents “...a unique period, which is based on a specific paradigmatic attitude towards the perception of the world as chaos - “postmodern sensitivity”.

The question of postmodernism is important primarily for the historical understanding of the development of various legal institutions, clarifying the consequences of the impact of postmodern concepts on a wide range of elements of the legal system.

If we take postmodernism as a basis in legal systems, their transformations or transformations - something that is caused by a noticeable shift in worldview and worldview, human consciousness itself - we can detect a lack of interaction between the subject of law and the world or the surrounding reality." Through social and legal institutions, foundations of statehood, moral norms, etc. Postmodernism influences the conceptualization of law.It tries to become a source of law that influences the formation of elements of the legal system.

As is known, law is built in a completely different paradigm of ideological and ontological fundamental properties, the main of which can be called the harmonization of multifaceted relations between man, society and the state. Both postmodernism and law are addressed to a person, measure his worldview and behavior, but still offer fundamentally different methods for this: postmodernism - debunking, law - integration.
As objects of its attacks, postmodernism chooses unity, integrity, objective reality, homogeneity, spiritual and moral traditions of society, and law in the proper sense of the word. Postmodernism is characterized using the terms “fragmentation”, “differentiation”, “heterogeneity”, “individualism”, “innovation”, “dynamism”, “revolution” (cultural, sexual, economic, political, etc.), “originality”, “ nihilism", "utilitarianism", "virtuality", "deconstruction", etc. At the same time, postmodernism is a technology for the reproducibility of many-sided dichotomous stereotypes of existence: legal culture - legal nihilism, values - anti-values, good - evil, etc.
Jacques Derrida, a French philosopher and literary theorist, in his article “It is for man to think and wander in the world” wrote: “The time will come when a person will get tired of the rules of law, of the signs and symbols of morality that surround him everywhere. He will come to a notary, a lawyer , to the judge with the only question - can I be alone for a second so that no one disturbs my peace? The rules of law in postmodernism are understood as pressure, burden and heavy burden; they neutralize the feeling of freedom, and this in turn causes rejection of any restriction. Every rule limits freedom, eliminates the very dream of absolute freedom, grounding it, squeezing it from all sides.

Postmodernism in the legal sphere is focused on the external superficial construction of legal reality, anti-hierarchy, quantitative evaluation criteria, rejection of the paradigm of reflecting reality and acceptance of its simulation, where the signifier is not correlated with reality as such in principle. All of the listed properties of law in the postmodern era are interdependent. The scope of postmodern jurisprudence is expanding due to globalist expansion and the popularity of a non-standard, non-centered, amoral type of consciousness.
In the legal sphere, postmodernism appears as a technology for manipulating human consciousness and subconsciousness in order to form a new world order on the basis of spiritual substitutions and moral degeneration. Postmodernism is one of the elite ideological movements of the globalizers of the world, designed to destroy traditions, the legal foundations of society and the destruction of the spiritual and moral constant in man.
Postmodern jurisprudence is closely related to the synergetic perception of law, which assumes polyvariance, unpredictability, reversibility of development processes, considering chaos a source of renewal and a generator of regulatory opportunities. This is the desire of postmodernists to create domestic unrest and then world chaos in order to globalize the world, in particular for the transition to a global dictatorship.
When using a synergetic approach, the basic methodological principles of legal science should be taken into account. Since modern science is characterized by high integration, and interdisciplinary translations of research results and methods are an element of the mechanism of its development, the attraction of research funds from other sciences is a necessary condition for the development of any science, including jurisprudence. At the same time, the actualization of one or another research toolkit of other sciences is determined primarily by philosophical ideas, social and cultural values, goals and objectives of specific studies updated within the framework of jurisprudence. Limitations in the use of certain research tools of other sciences are determined by the nature of the state and law, the logic of the subject of legal science.

Historical school of law

In Germany in the first half of the 19th century. a new school of law - historical - was formed. Representatives of this school criticized the school of natural law - ideal law, which can be deduced from the human mind by deductive means. They believed that it was impossible to change historical law with the help of laws created with the claim to embody universal human rationality. The law that has historically developed and applied by each people is the result of the experience of past times, which must be recognized as valuable in itself, regardless of whether this law is reasonable or not. The most famous theorists of the historical school of law include: Gustav Hugo, Friedrich Carl Savigny, Georg Friedrich Puchta.

The worldview of representatives of the historical school of law was influenced by the theory of S. L. Montesquieu. Montesquieu's thesis, according to which: "Laws must be so characteristic of the people for whom they are created that it should be considered the greatest accident if the institutions of one nation can be suitable for another" - allowed theorists of the historical school of law to conclude that there is no law at all , but there is a historically established law of a particular people, which jurists should study. The evolution of the views of representatives of the historical school of law was also influenced by the ideas of the German philosophers I. Kant and F. Hegel.

Studying Roman law, Hugo came to the conclusion that law historically was never reduced only to legislation created by the supreme power. Thus, he challenged the Enlightenment idea that law is the only or main source of law.

Hugo gives preference to forms of uniquely developing law and critically evaluates laws as a source of law. The forms of uniquely developing law are highly characterized by such qualities as familiarity and certainty of regulations. With regard to the laws created by the supreme power, doubt always remains: to what extent will they be applied in reality? In support, Hugo cites an example when, according to a decree of the city authorities, streets in Göttingen were renamed, but residents continued to use the old, familiar names. Laws may contradict each other, express only the selfish goals of the legislator, require a special reason for adoption and a lot of work to amend them, and, in addition, many citizens never read the laws, Hugo believes.

Hugo is a critic of the concept of natural law and the theory of contractual origin of the state. He considers it inappropriate to define law in terms of reasonableness and justice, since any law in itself is imperfect. Does not recognize the existence of natural law - only positive law (indigenously developing law and legislation) is, according to Hugo, law. The value of positive law lies only in the fact that with its help it is possible to achieve certainty in the prescription of prohibitions and duties, without which it is impossible to ensure public order.

The provisions of historical jurisprudence were developed by Friedrich Karl Savigny. Unlike representatives of the French Enlightenment and other theorists of the natural law school, Savigny does not idealize the importance of reason as a source of law. To determine the source of the development of law, he introduces the concepts of “conviction of the people” or “character of the people”, which he later replaces with the concept of “national spirit” (Volksgeist), borrowed from Puchta. With this concept he outlined the inextricable connection that exists between law and national culture. Law for Savigny is a historical manifestation of the impersonal national spirit, which does not depend on any arbitrariness, that is, it is an organic product of the secret internal forces of the people.

Law in its historical development goes through three stages. - Savigny believed. Initially, law arises in the minds of the people as “natural law”. This right always has national specificity, like the language and political structure of any people. Being simple in its content, this right is realized through very clear symbolic actions, which serve as the basis for the emergence and termination of legal relations. With the development of folk culture, law also becomes more complex; it begins to live separately in the minds of lawyers - this is how scientific law appears. Lawyers are not creators of law, but only exponents of the people's spirit. They develop legal concepts, generalizing what has already arisen in practice. The last stage in the development of law is the legislative stage. At the same time, lawyers prepare bills, putting into the form of articles of law what has already been produced by the people's spirit.

Being a convinced supporter of the historical and national-cultural approaches to law, Savigny, however, understood the “true law of Germany” as the received Roman law, in the deep study of which he saw the main task of German jurists.

Puchta was a student of Savigny and developed his idea of law as a product of the historical development of the people.

The key concept in Pukhta’s concept of legal formation was the concept of the folk spirit (Volksgeist) - the impersonal and original consciousness of the people. In his work “Customary Law” (1838), he distinguishes between invisible sources of law (first God, then the folk spirit) and visible sources - forms of expression of the folk spirit (customary law, legislative law, scientific law). Customary law, according to Pukhta, cannot be reduced only to the fact that certain actions are repeated by the people; on the contrary, customary law is a popular belief. Pukhta believed that “compliance is only the last moment in which the emerging law, living in the conviction of the members of the people, is manifested and embodied.” Legislative law is a form of law that makes the law clear and uniform. However, this right cannot have an arbitrary content: “It is assumed that the legislator actually expresses the general conviction of the people, under whose influence he is supposed to be, - no matter whether he adopts into his law an already established legal view or, according to the true spirit of the people, promotes education his". Scientific law is a form by which it is possible to reveal "legal provisions hidden in the spirit of national law, not manifested either in the immediate beliefs of the members of the people and their actions, or in the utterances of the legislator, which, therefore, become clear only as the product of scientific deduction." .

Being a supporter of the idea of organic development of law, Pukhta, however, also recognized subjective factors in the process of legal formation. Thus, he highly appreciated the activities of jurists, thanks to which alone the reception of Roman law can be explained. Pukhta spoke of Roman law as universal law, capable of coexistence with any national characteristics; about the mutual influence of the legal systems of different nations.

Puchta, like Savigny, attached fundamental importance to jurisprudence, believing that jurisprudence is the “organ of knowledge” of law for the people, and also serves the interests of the development of law itself. In his famous work “Textbook of Pandects” (1838), he conducted a formal-logical analysis of the system of concepts used in the Code of Roman Civil Law. This work of Puchta became fundamental for German jurisprudence of concepts of the 19th century.

The traditions of the historical school of law are reflected in modern legal systems (Germany, Switzerland), which consider law and custom as two sources of law of the same order.

Religious foundations of law

Researchers consider the social nature to be the most important problem of law
religious law. In all the sacred books of ancient and world religions
rules of conduct are formulated that have all the features of legal norms - criminal, civil and procedural. The social nature of such norms is determined by the fact that their implementation was ensured by state coercion: violators of religious and legal regulations were subject to the death penalty, corporal and self-mutilation by decision of the courts, and were subject to property liability. These were specific features of religious law that distinguished it from any other systems of social regulation, including the religious system. On the other hand, the norms of any religious law are closely intertwined with religious rules and dogmas of the holy books; By their social nature, they are legal norms and belong to the legal, and not a purely religious, sphere. That is why we cannot agree with researchers who do not see the inextricable connection between religious law and the state and consider it only as one of the structural elements of religion. At the same time, most researchers of religious law, as already noted, believe that it remains a valid law only as long as the implementation of its norms is ensured by state coercion. Considering the legal and religious systems, it should be noted that each of them represents a certain integrity, the elements of which are interconnected and interdependent. It is from this position that V.A. considers the interaction of religion and law. Klochkov, highlighting the following significant connections: 1) the impact on each other of their homogeneous elements: religious ideology and legal consciousness, church and secular courts, religious and legal norms; 2) the joint impact of homogeneous elements of both systems on other social systems and public life, for example, religious and legal ideology - on moral ideas, the overall regulation of social relations by legal and religious norms; 3) the impact on each other of heterogeneous elements of the religious and legal systems, which can be direct, for example, regulation by legal norms of religious behavior and relations, intra-church activities, and indirect (the influence of religious ideology on the formation of legal norms through legal consciousness as a result of the legal consciousness’ perception of religious ideas and representations); 4) interaction of branches of law with various spheres of religion: regulation by legal

and religious norms of various aspects of church-state relations, property and other rights of confessional organizations and clergy, the legalization of religious ceremonies in various spheres of public life (coronation, inauguration of the US President, religious oath when holding public office, religious oath in court, etc.) ; 5) the relationship between various branches of law and religion in general (for example, different degrees of their secularization).

In the interaction of law and religion as regulators of social relations, legal and religious norms come to the fore as the most active elements of the legal and religious systems. Religious norms have all the necessary features of social norms, which are manifested in the following: 1) a religious norm acts as a model for the behavior of believers, as a standard of certain relationships; 2) its prescriptions do not apply to a specific individual, but to a more or less wide circle of people (clergy, laity).

The rules of law in the early stages of development “were not separated from religious ones and were closely connected with them. The most ancient norms of law were at the same time religious laws; and only then are legal norms separated from purely religious ones.” In early class states, religious norms were enshrined in oral traditions, myths, customs, rituals, and ceremonies. Subsequently, they began to be contained in laws, decrees of political authorities, and in the theological works of religious authors. The Jewish, Christian, and Islamic religions are characterized by written consolidation of religious norms in the form of “holy scriptures” (Old Testament, New Testament, Koran, Sunnah, Talmud) and legal acts of the highest political power based on them. It is worth noting that religious norms most often have an authoritarian character; they have a more pronounced element of obligation and coercion.

Religious norms differ from legal norms in that they are based on religious ideas and concepts. Thus, speaking about Jewish law, Professor E. Falk emphasizes that on a completely identical basis, norms coexist and function, on the one hand, establishing the procedure for worshiping religious cults and performing religious rituals, and on the other, religious norms regulating the behavior of Jews in private and public life.

However, the role of religious norms is not limited to the regulation of intra-church and inter-confessional religious activities. Religion already in its early forms regulated secular relations, and law at certain stages of history and in a number of countries received expression precisely in religious dogmas.

The close connection between law and religion is characteristic of almost all legal systems of the peoples of the world. There is not a single system of ancient written law that does not include religious precepts and ritual rules. Religion had a particularly strong influence on the legislation of the ancient eastern states: the Laws of Moses, the Laws of Hammurabi, the Laws of Manu, etc. Religious norms were of a legal nature and regulated some political, state, civil, procedural, and marriage and family relations. The legal norm itself, with rare exceptions, had a religious justification. An offense is a simultaneous violation of the norms of religion and law. The interaction of religion and law is clearly expressed in the sanctification by religion of social institutions sanctioned by law, the sanctification of the power and personalities of kings, kings, and emperors.

Of the ancient legal systems, the strongest influence of religion was on Hindu law. Indian civilization is exclusively religious in nature.

As can be seen from the above examples, in states where the influence of religion was especially strong, the differentiation of social regulators occurred at a slow pace.

Even such norms of law, characteristic of a class society, turned out to be closely woven into a single normative system with religious postulates prevailing in it.

According to the fair remark of N.Yu. Popov, a close connection between religion and law exists in conditions where the church is a feudal structure and has a corresponding state basis. It was in the Middle Ages that law became the handmaiden of theology. Christianity, Judaism, Islam rose above the state and law. During the New Age, law was finally freed from theology.

It is worth noting that the trend in the relationship between law and religion, which emerged during the period of feudalism, is also manifested in the modern world. The systems of Hindu and Muslim law are still permeated with religious principles. The legal systems of Western European countries are increasingly isolated from religious dogma. However, even here, law and religion are not absolutely opposed to each other; some norms of law still find moral support in religion. As noted above, religious and legal regulation of social relations remains of great importance in Muslim states. The degree of its influence depends, first of all, on the level of socio-political development of the country. Thus, it has the greatest influence where this level is low, as well as where regimes in the past pursued a policy of isolation from the outside world (Yemen, Saudi Arabia). A clear distinction should be made between Islamic law and the law of Muslim countries.

Having analyzed the relationship between religion and law, it seems necessary

note the following. Firstly, the relationship between law and religion has deep historical roots. It is different in different civilizations, world religions, regions of the world. The relationship between religion and law is stable and unchanged in traditional legal systems. It is quite mobile and dynamic in European countries of the Christian religion. As these countries develop historically, law and religion as social regulators become increasingly isolated from each other. But in the normal course of social processes they do not oppose each other, but in certain situations they provide mutual support.

Secondly, under conditions of religious domination, religion and law do not contradict each other, since there is a close connection between the legal system and the dominant religion. Complementing each other, law consolidates the state status of religion, religion, in turn, illuminates the existing legal order. In the case of the direct origin of state law from the state religion, the concepts of sin and crime are often combined and religious problems are solved with the help of the state. In the case of the state using a certain religion, its power and authority are used to achieve completely worldly, secular goals.

Law and Morality

The Russian philosopher V.S. Solovyov, in the last period of his work, became increasingly aware of the need for the legal improvement of society for the development of freedom and morality.

In his work “Justification of the Good” (1897), he wrote: “Law and its embodiment – the state – determine the actual organization of moral life in all of humanity, and with a negative attitude towards law as such, moral preaching, devoid of objective means and support in an alien real environment, would at best remain only innocent idle talk, and law itself, on the other hand, with the complete separation of its formal concepts and institutions from their moral principles and goals, would lose its unconditional basis and, in essence, would no longer differ in anything from arbitrariness ".

A practical understanding of a balanced balance of character and morality developed gradually among the Russian intelligentsia. In particular, the direct introduction of moral norms and “justice” into political practice has led to negative consequences. Thus, within the unions and parties that fought for the liberation of the people, strict repressive norms essentially prevailed. The victorious parties resorted to "Jacobin terror" and tried people's tribunals, including those who acted under the previous regime on the basis of its laws. This led some to a pessimistic conclusion about the hopelessness of combining law and morality. However, totalitarian ideological regimes and fanatical religious states are examples of the dominance of “morality” over law. We should be talking about the communication of discourses of power and justice, not only at the macro-, but also at the micro-level, i.e. not only in “big politics”, but also in everyday communication. In both cases, we should be talking about “embedding” ethical discourses into economic, political, legal and social programs, as well as into various kinds of advice and recommendations given by scientists, doctors, lawyers, and economists to individuals who have difficulties in implementing your plans. Respect for individual freedom presupposes the inadmissibility of imposing advice and recommendations on it, but today we cannot take a single step without this kind of “soft” guardianship.

In modern definitions of law, the concepts of “regulation”, “management”, “regulation” are most often used.

“Law,” believes the Russian philosopher E. Yu. Solovyov (b. 1934), “is a system of generally binding norms established or sanctioned by the state, ensuring the joint civil and political existence of people on the basis of personal freedom and with a minimum of punitive violence. Law also presupposes legislative restrictions possible repressive actions on the part of the state itself in relation to the individual, i.e. the constitution. The constitution, as an expression of the will of the people, forms the foundation of the legal system, because it defines the mutual responsibilities of the state and citizens, protects them from police and other arbitrariness. The main thing in it is human rights and their expansion is evidence of the development of the social state."

Philosophy of law in the system of philosophy and jurisprudence.
In terms of its status, the philosophy of law is a complex, related discipline located at the intersection of philosophy and jurisprudence. This circumstance requires a clear definition of its place and role in the system of philosophy and jurisprudence.
The issue of legal philosophy can be approached from two opposite sides: from philosophy to law and from law to philosophy.
Let's look at the features of these two approaches to the philosophy of law.
The first way to approach philosophical and legal issues (philosophical approach to law) is associated with the dissemination
one or another philosophical concept on the sphere of law. This turn of philosophy to the understanding of legal reality, especially characteristic of the Enlightenment, turned out to be very fruitful for philosophy itself. It is known that many of the major achievements of classical philosophy are the result of such treatment. In the field of legal philosophy, a unique test of the cognitive power of one or another philosophical concept, its practical consistency in one of the most important spheres of the human spirit takes place. All this gives every reason to conclude that without reflection on the foundations of law, philosophical understanding of legal reality as a whole, a philosophical system cannot be considered complete.
Another way of forming a philosophy of law (legal approach to law) is directed from solving practical problems of jurisprudence to their philosophical reflection. For example, from understanding such private legal problems as the foundations of criminal law, guilt and responsibility, fulfillment of obligations, etc., to posing the question of the essence of law. Here, the philosophy of law appears as an independent direction in jurisprudence, a specific level of study of law itself. This philosophical understanding of law is carried out by jurists in its more practical orientation, in which the ideal fundamental principles of law are considered in close relation to positive law. However, in both the first and second cases, the philosophy of law is oriented towards understanding the essence and meaning of law, the principles and principles contained in it.
The problem of the disciplinary status of legal philosophy. Due to the existence of two different sources of formation of the philosophy of law, two main approaches to understanding its status have emerged.
The first approach considers the philosophy of law as part of general philosophy and determines its place among such disciplines as moral philosophy, philosophy of religion, philosophy of politics, etc. In accordance with this approach, legal philosophy refers to that part of general philosophy that “prescribes” a person the necessary manner behavior as a social being, i.e. practical philosophy, the doctrine of what should be.
The second approach relates the philosophy of law to branches of legal science. From this point of view, it is the theoretical foundation for the creation of positive law and the science of positive law. Philosophy of law here means
Xia spider, explaining in the “last resort” the meaning of legal principles and the meaning of legal norms.
Each approach emphasizes one of two options. and possible ways of reflection on the law. The first method is pre-Shg! posits a general philosophical or general methodological reflection aimed at searching for the ultimate foundations, conditions for the existence of law, when law correlates with the entire “ecumene” of human existence - culture, society, science, etc. The second method is private philosophical or private methodological reflection, which is also philosophical, but is carried out within the framework of legal science itself.
This duality in the philosophy of law is reflected in the fact that in a number of countries, for example in Ukraine, an academic degree in the philosophy of law can be awarded both in the category of philosophical and in the category of legal sciences. Consequently, it can be developed by both a philosopher and a lawyer. And more precisely, not just a philosopher, but a philosopher-lawyer, i.e. a practically oriented philosopher who is interested not just in truth in itself, but in the implementation of certain practical goals in the field of law (for example, achieving the legal state of a particular society), or a lawyer-philosopher who must be able to distance himself from the practical problems of his science and take the position of its extra-legal vision, i.e. to the position of a philosopher. In support of this idea, one can cite the words of one of the famous Western legal theorists of the 20th century, G. Coing, who argues that the philosophy of law, without abandoning the knowledge of purely legal issues, should go beyond this sphere, connect legal phenomena understood as a cultural phenomenon, with the solution of general and fundamental questions of philosophy1.
Due to the noted circumstances, one may get the idea that there are two philosophies of law: one developed by philosophers, the other by lawyers. In accordance with this assumption, some researchers even propose to distinguish between the philosophy of law in the broad sense of the word and the philosophy of law in the narrow sense of the word. In fact, there is

There is only one philosophy of law, although it is fed from two different sources. The first source of legal philosophy is general philosophical developments of legal problems. Its second source is associated with the experience of solving practical problems of law. Thus, the philosophy of law is a single research and academic discipline, which is determined by its main question, only in relation to which certain problems are relevant to it. It requires special qualities from a researcher working in this area: a combination of fundamental philosophical training and knowledge of the main problems of political and legal theory and practice.
Of course, each researcher, along with a certain professional interest, brings his own specific vision to the subject of this discipline, however, it is the presence of different positions, their constant interchange and mutual enrichment, coexistence on the basis of complementarity that makes it possible to maintain balance around the common task - reflection of the foundations of law.
For a more specific determination of the disciplinary status of the philosophy of law, it is advisable to consider the approaches to this issue of representatives of various philosophical directions.
In Hegel's system, the philosophy of law is not just part of one of the fundamental sections of philosophy, but covers all social and philosophical issues. In other philosophical systems, for example, in S. Frank, it is a section of social philosophy, which is called social ethics. As for the social philosophy of Marxism (historical materialism), within the framework of which the problems of law were considered, its followers studied it only in the aspect of identifying the social functions of law. Therefore, the philosophy of law as an independent discipline within the framework of the socio-philosophical doctrine of what is and what is necessary, where the issue of what is proper was not addressed, could not take shape.
The analytical philosophical tradition (positivism) considers the philosophy of law as an integral part of political philosophy, denying it the status of an independent discipline. In modern Western philosophy, the problems of the philosophy of law are most often considered within the framework of philosophical anthropology. Even social and moral philosophy, in close connection with which the problems of legal philosophy are considered, have undergone significant anthropological transfer.
mation under the influence of such philosophical trends as existentialism, phenomenology, hermeneutics, philosophical anthropology, psychoanalysis, etc.
Consequently, it is quite difficult to indicate any single philosophical section of which the philosophy of law would be a part. At the same time, it is quite obvious that it is most closely connected with social, political, moral and anthropological philosophies, each of which focuses on one of the factors in the formation and study of law: social, moral-value, political, anthropological.
Thus, political philosophy considers the question: what is power and how power and law relate. Social philosophy: what is society and how society and law relate. Moral philosophy: what is morality and how morality and law relate. Anthropological philosophy: what is man and how man and law relate. The philosophy of law poses a general question: what is law and what is its meaning. Therefore, she is undoubtedly interested in questions about how law is connected with such phenomena as power, society, morality and man.
The structure of legal philosophy. In its structure, the philosophy of law is close to the structure of general philosophy. The following main sections can be distinguished in it: ontology of law, which examines the problems of the nature of law and its foundations, the existence of law and the forms of its existence, the connection of law with social existence and its place in society; anthropology of law, which examines the anthropological foundations of law, the concept of “legal person,” human rights as an expression of the personal value of law, as well as problems of the status of the institution of human rights in modern society, human rights in a particular society, the relationship between personality and law, etc. ; epistemology of law, which examines the features of the process of cognition in the field of law, the main stages, levels and methods of cognition in law, the problem of truth in law, as well as legal practice as a criterion of legal truth; axiology of law, which examines value as a defining characteristic of human existence, the way of being of values, analyzes basic legal values (justice, freedom, equality, human rights, etc.), their “hierarchy” and methods of implementation in the conditions of modern legal reality. To the sphere of interests of legal axiology also
2^ sometimes include questions of the relationship between law and other forms of value consciousness: morality, politics, religion, as well as the question of the legal ideal and legal worldview; In the structure of the philosophy of law, one can also distinguish an applied section, which examines the philosophical problems of constitutional law (legal statehood, separation of powers, constitutional jurisdiction), civil morals (contract and equalization of losses and benefits, property), procedural and criminal law, etc.
The relationship between the philosophy of law, the general theory of law and the sociology of law. Within the framework of legal studies, the philosophy of law is most closely related to the theory of law and the sociology of law. Together, these three disciplines constitute a complex of general theoretical and methodological legal disciplines, and their presence is associated with the existence in the law itself of at least three aspects: value-evaluative, formal-dogmatic and the aspect of social conditioning. Philosophy of law focuses on the reflection of the foundations of law, legal theory - on the construction of the conceptual framework of positive law, sociology of law - on issues of social conditionality and social effectiveness of legal norms and the legal system as a whole.
In this regard, the question arises: are these disciplines autonomous or do they represent sections of the general theory of law? It can be assumed that, in a certain sense, the term “theory of law” can cover all three disciplines, since they relate to the general theoretical aspects of law: philosophical, sociological, legal. However, in the strictly scientific sense of the word, this term is applicable only to legal science. An attempt to combine these three educational and research areas within the framework of one discipline - the general theory of law (especially in the form in which it has developed today) is not scientifically justified, and its practical implementation can lead to negative results. The theory of law, philosophy of law and sociology of law are quite successfully capable of mutually enriching and complementing each other as autonomous disciplines. Combining their theoretical potential in order to ensure the integrity of the system of knowledge about law should be carried out not by creating a unified legal science, which is a rather difficult task, since the latter must combine at least three different methodological positions: a lawyer, a philosopher and a sociologist, but by fundamentalization of the training of lawyers themselves, who should be able to

They are able to see law not only from the position of their discipline, but also 25 from the position of philosophy and sociology.
Basic questions of legal philosophy. As already noted, the philosophy of law as an independent research discipline is constituted (that is, established, determined) by its main question, on the solution of which the solution of all its other questions depends. Of course, the definition of this main issue is directly influenced by the worldview position of the researcher, so it is not surprising that each researcher may have his own approach to determining the main issue of legal philosophy. Thus, the legal theorist G. Klenner, whose position is based on the theory of Marxism, defines the main issue of law as “the relationship of the legal to the material, and, in particular, to the economic conditions of society”1. Von Wallendorf, who adheres to the objective-idealistic point of view, sees the main issue of the philosophy of law in the “selection” of true values and the creation on their basis of a system of values in the form of a specific legal order, the purpose of which is to maintain social peace. “Law is the logic of values,” he emphasizes[X]. Another Western researcher A. Bridgeman believes that all questions of the philosophy of law come down to one basic thing: “what should law be in the light of social justice?” The Russian philosopher I. Ilyin considers the question of the justification of law (natural and positive) central to the philosophy of law. According to the authors of the textbook, one of the simplest and most profound definitions of the main question is given by the prominent German legal philosopher A. Kaufmann: “The main question of the philosophy of law, as well as all legal science, is the question: what is law. This means: what essential forms, what ontological structures, what basic laws of existence do we call law? The solution to many other important legal problems depends on the answer to this question.”
Based on our vision of the essence and tasks of the philosophy of law, the main question is: “what is law?” will look like a question about the meaning of law. Since philosophy should not just declare any ideas, but also argue for them, then the main task of the philosophy of law should be to substantiate the law and determine its meaning. The question “what is law (what is its meaning)?” is fundamental for the philosophy of law because the solution to all other major legal problems, including in the field of lawmaking and law enforcement, directly depends on the answer to it. This question is philosophical because it relates law to human existence.
Due to the complexity of the structure of law itself, the solution to the main question of the philosophy of law can be carried out through the solution of a number of basic tasks, or main questions of philosophy
law: about the basis of justice and its criteria (the task within which law is related to morality) - this question is central in the philosophy of law; in a more traditional form, it looks like a question about the justification of “natural law”; about the normative (binding) force of law, or the question of why a person should obey the law (a task within which the relationship between law and power is determined); about the nature and functions of positive law (the task within which the nature of legal norms is clarified), closely related to the solution of the previous two questions - it provides justification for positive law.
The solution of these main tasks or main questions of the philosophy of morality allows us to ensure the legitimation and limitation of law, i.e. justify the necessity of law for a person and determine the boundaries beyond which it cannot go.
Functions of legal philosophy. Like any other philosophical discipline, the philosophy of law has a number of functions. Among them, the most important are: worldview, methodological, reflective-informational, axiological, educational.
The worldview function of legal philosophy is to form a person’s general view of the world of law, legal reality, i.e. to the existence and development of law as one
many ways of human existence; it in a certain way resolves questions about the essence and place of law in the world, its value and significance in the life of a person and society as a whole or, in other words, forms a person’s legal worldview.
The methodological function of legal philosophy is reflected in the formation of certain models of knowledge of law that contribute to the development of legal research.
To this end, the philosophy of law develops methods and categories with the help of which specific legal research is carried out. The resulting expression of the methodological function of law is the design of existing knowledge about law in the form of a way of comprehending it as a content-semantic construction that substantiates its main ideas.
The reflective information function provides an adequate reflection of law as a specific object, identifying its essential elements, structural connections, and patterns. This reflection is synthesized in the picture of legal reality or the “image of law”.
The axiological function of legal philosophy is to develop ideas about legal values, such as freedom, equality, justice, as well as ideas about the legal ideal and interpretation from the standpoint of this ideal of legal reality, criticism of its structure and conditions.
The educational function of the philosophy of law is realized in the process of forming legal consciousness and legal thinking, through the development of legal guidelines themselves, including such an important quality of a cultural personality as an orientation towards justice and respect for the law.
CONCLUSIONS Philosophical understanding of law is the task of a special theoretical discipline - philosophy of law, the subject of which is to clarify the meaning of law, as well as substantiate the understanding of this meaning, and its basic categories are the idea, meaning, purpose of law, justice, freedom, equality, recognition, personal autonomy , human rights, etc. Moral philosophy has a complex structure, which includes: ontology of law, epistemology of law, axiology of law, phenomenology of law, legal anthropology, applied philosophy of law, etc. In terms of its status, philosophy of law is a complex, related discipline located at the intersection of philosophy and jurisprudence

2g dents, within the framework of jurisprudence, the philosophy of law is closely related to the theory of law and the sociology of law. The functions of legal philosophy are: worldview, methodological, reflective-informational, axiological, educational, etc.
TEST QUESTIONS What does legal philosophy study? What points of view exist on the subject of moral philosophy and which of them seems most reasonable to you? How does the subject of legal philosophy differ from the subject of general theory of law? What are the features of the method of legal philosophy? What place does the philosophy of law occupy in the system of philosophical sciences? What place does philosophy of law occupy in the system of legal sciences? How would you formulate the fundamental question of legal philosophy? What functions does the philosophy of law perform? Why is it necessary for a future lawyer to study legal philosophy?
RECOMMENDED READING
1 Alekseev S. S. Philosophy of Law. - M.. 1997. - P. 10-46. Bachinin V. A. Philosophy of law and crime. - Kharkiv,
1999. - pp. 10-23. . , Garnik A.V. The problem of the disciplinary status of moral philosophy // Philosophy and sociology in the context of modern culture. Dnepropetrovsk, 1998. - P. 179-188. Maksimov S. I. About the philosophical assessment of law (before nutrition about the subject of philosophical law) // BicHHK Academician. rights, sciences gt; multiples. 1998. - No. 2. - P. 89-98. Kerimov D. A. Methodology of law (subject, functions, problems of philosophy of law). - M., 2000. - P. 6-15. Nersesyants V. S. Philosophy of Law. - M., 199/. - L. 8 1 o. Tikhonravov Yu.V. Fundamentals of the philosophy of law. - M., 1997. - P. 11-46. Skoda V.V. Entry to the philosophy of law. - Kharkov, 1996. P. 5 42.

Amount of time allocated to study this topic: 2 hours

Location: lecture hall according to the schedule

Methodology: verbal (lecture)

Basic terms and concepts: subject of philosophy of law, foundations of philosophy of law, functions of philosophy of law, methodology of law, philosophy of law in the system of philosophical and legal knowledge..

Lesson objectives:

· identifying the essence of the philosophical approach to understanding law and legal consciousness ;

· understanding the relationship between the philosophy of law and legal science;

· identifying the specifics of the philosophical justification of law,

· study of methodological principles for understanding the nature, patterns and content of law;

· understanding the functions of law;

· critical understanding of legal positivism as one of the most common forms of philosophical justification of law and legal science.

Lecture outline

Introduction

1. The essence of the philosophical approach to understanding law.

2. Philosophy of law in the system of philosophical and legal sciences.

3. Functions of legal philosophy.

4. Legal positivism.

Conclusion (conclusions)

Main literature

additional literature

INTRODUCTION

Lecture on TOPIC No. 12 “PHILOSOPHY OF LAW AS A WORLDVIEW AND METHODOLOGICAL BASIS OF LEGAL THINKING” belongs to SECTION II. “PHILOSOPHICAL PROBLEMS OF SOCIAL AND HUMANITIES KNOWLEDGE” of the work program for the course “Philosophy”, developed by the Department of Philosophy and Sociology of the Krasnodar University of the Ministry of Internal Affairs of Russia and is intended for cadets and students of all specialties.

The relevance of the topic of the lecture is due to the fact that the philosophy of law as a scientific discipline, being a reflection of legal reality, serves as the ideological and methodological basis for its knowledge and transformation.

The theoretical significance of the lecture is that the philosophy of law allows you to answer theoretical questions about the possibility of knowing legal reality, identify patterns of development of law and the state, determine the role of law in human life and society, comprehend the purpose of law and its relationship with other forms of human culture.

The practical significance of the lecture is determined by the role of philosophical and legal knowledge in shaping the personality of a police officer and in improving the legal aspect of public life. Without the fundamental ideological and methodological foundations developed by the philosophy of law, it is impossible to solve such problems as improving the rule of law and building a rule of law state.

The subject of the lecture is the philosophy of law as the ideological and methodological basis of legal thinking.

The purpose of the lecture is for cadets to assimilate the meaning of philosophical and legal knowledge, the ideological and methodological impact of the philosophy of law on legal thinking and to determine the possibilities of using philosophical and legal knowledge in the practical activities of a police officer.

The relationship of the lecture with previously studied topics is manifested in the fact that this lecture specifies the content of lectures on topics No. 6 (“Knowledge, its capabilities and boundaries. The essence and specificity of scientific knowledge”), No. 10 (“Science and methodology”) and No. 11 ( "Methodology of social and humanitarian knowledge"). The general principles of scientific knowledge, identified during the study of these topics, and the specific principles of social and humanitarian knowledge are specified in relation to the philosophy of law and legal sciences.

The relationship of the lecture with subsequent topics is manifested in the fact that the main provisions of topic No. 12 are the basis for the study of the following topics - lectures No. 13 (“The nature and essence of law”) and No. 14 (“Basic categories of the philosophy of law”).

Question 1

THE ESSENCE OF THE PHILOSOPHICAL APPROACH TO UNDERSTANDING LAW

The first task of our lecture is to determine the conditions under which it becomes not only necessary, but also possible, an organic combination of legal and philosophical approaches to the knowledge of law as a whole. This problem can be solved only if the fundamental difference between the philosophical approach to understanding law and the legal approach is established.

First of all, it should be recognized that philosophical and legal theory are qualitatively different as methodologies. When a general theory of law tries to use philosophical methodology, it inevitably loses the specificity of its view of its subject and begins to speak in a language alien to it.

The question of a philosophical approach to law should initially be posed as a question of a non-legal understanding of the essence of law. In the same way, the question of a legal approach to law cannot be posed initially other than the question of a non-philosophical understanding of the essence of law.

Legal theory belongs to the sphere of science, and therefore is fully subject to the requirements and laws of scientific knowledge. Without being based on science, legal theory turns into scholastic doctrine. Therefore, the qualitative difference between the philosophical and legal approaches is most natural to establish on the basis of the distinction between the philosophical and scientific forms of knowledge of phenomena.

Philosophy cannot exist and develop without connection with the system of theoretical and empirical knowledge; she cannot but take into account the achievements of contemporary science. But at the same time, philosophy, even if it calls itself scientific, does not become simply an interpretation or generalization of scientific knowledge. Its cognitive capabilities are not covered by the methodology of scientific knowledge. Its ideas do not fade or be discarded because at some point they cease to be consistent with scientific data, while scientific statements that are outdated or turned out to be false cannot be compatible with new knowledge and retain their value only as a fact of the history of science.

Philosophy underlies many sciences. Philosophical knowledge is not built in strict accordance with the requirements of science.

In addition, philosophy has always strived to use the most general methods and methods of cognition, those methods that philosophy independently develops or takes from other areas of spiritual production, and primarily from natural science.

Philosophy is characterized by such features of scientific knowledge as objectivity, rationality (evidence, rationalistic validity), systematic knowledge, and verifiability. Philosophy is closely related to science and largely determines its development.

At the same time, philosophy is also connected with social science disciplines. It also studies society, and in particular, issues such as the relationship between social consciousness and social existence, the specifics of social cognition, etc. Philosophy is closely related to the private social sciences: jurisprudence, economics, political science, sociology, etc.

But philosophy is not reduced to either natural or social types of scientific knowledge.

The tradition of considering philosophy as one of the sciences especially strengthened in the 18th and 19th centuries, when for many people the concepts of philosophy and science began to seem identical. In fact, there is a connection between philosophy and science, but philosophical knowledge can appear in both scientific and pre-scientific or deliberately unscientific forms, without ceasing to be philosophy at the same time.

The goal of legal theory is truth. The goal of philosophy is a position, a certain ideological comprehension of the subject. The question of the truth of philosophical statements is not fundamental for determining their quality, although it can be very significant in cases where this position influences the scientific formulation of the question. Scientific knowledge performs only an auxiliary task, but does not necessarily influence certain intellectual and spiritual attitudes of philosophy. The philosophical position is crystallized and reproduced in a grid of axiological coordinates (as valuable, life-meaning, moral, sacred, etc.) in contrast to legal statements assessed in the range of “truth-false” values.

Legal theory, if it is scientific, belongs to the field of extra-individual, extra-subjective, collective spiritual existence; philosophy always turns out to be a product of personal creativity. This is its independent value, as, for example, the value of artistic creativity, and the value of ecstatic communication with the Spirit.

Fundamental differences between philosophical and legal approaches to understanding law:

1. Philosophy is the area of paradigmatic thinking. The philosophical-legal paradigm is a rational methodological model of a high degree of generalization, which prescribes the development of specific problems of legal philosophy in line with certain initial ideological and cognitive principles and has imperative force for many generations of researchers.

We can include in the subject of philosophy the paradigm of reflection and construction of reality as a whole, the paradigm of objectification of thought in specific moments of reality and the disobjectification of objective reality into knowledge, into spiritual attitudes and intellectual and active abilities of a person.

In legal theory, the subject of scientific interest is certain aspects of reality, certain subject areas.

A sign of paradigmatic thinking is the ability to make a conscious choice between paradigms, as well as the ability and desire to clearly see and rationally explain the change of paradigms. Such a choice cannot be made on a purely rational basis, and this alone fences off legal theory from the problem of independent choice of cognitive paradigms and intellectual assessment of statements about the law.

2. All forms of cognitive activity are in one way or another associated with intellectual intuitions, which are expressed in the ability of judgment, productive imagination, generalization, abstraction, etc. For philosophy, intuitions are the reference points for philosophizing about law.

On the contrary, for legal theory, intuitions are only vague, indistinct, unintelligible ideas that need explanation and rational design. Where cognition of an object is associated with the discovery of patterns, logic and rationality supplants the holistic, intellectual-sensual, and momentary grasp of the object.

3. Philosophy is always reflexive. Reflection is the principle of human thinking, directing it to comprehend and realize its own forms and prerequisites; a substantive examination of knowledge itself, a critical analysis of its content and methods of cognition; the activity of self-knowledge, revealing the internal structure and specificity of the spiritual world of man. In philosophizing, two intellectual intentions are intertwined and simultaneously realized: 1) focus on an object, its contemplation, comprehension (rationalization, spiritualization) and 2) focus on the very process of comprehending the subject, self-understanding of the subject.

Philosophy is never directed directly at experience or at any object. For her, the question is “what is this object, what is it?” is not specific: otherwise it would be fundamentally indistinguishable from science. The specific philosophical question sounds different: “why is the subject like this; Why do I perceive it this way and not some other way?”

Legal theory, like any other science, can be considered a product of unreflective thought. Science, as a field of unreflective thinking, is unable to rationally substantiate its principles.

Reflective thinking has the ability to express patterns and create these rules according to principles that characterize the nature and logic of reason itself. Reflective thinking is absorbed in the task of self-justification of theoretical reason using the means of reason itself.

Science reproduces and constructs reality in fragments. Philosophy reproduces (and constructs) the world in its integrity, in abstraction.

Thus, philosophy is not just a way of understanding reality, but also self-awareness and self-knowledge.

5. For legal theory, law is a unique and specific subject, and a subject taken in its particularity. The peculiarity of law appears, on the one hand, as its difference from other forms of social reality, and on the other hand, as its relative independence.

For philosophy, law is a non-specific subject. In this case, it is understood as a moment of social reality, but a reality that represents the inextricable unity of all its moments, their integrity. This means that law, like any other phenomenon, reflects social reality as a whole. Consequently, law is an expression of the universal characteristics of human existence.

Therefore, law for philosophy acts as a kind of integral (universal) characteristic of social and spiritual life. The philosophical understanding of law is fundamentally synthetic, holistic, regardless of whether the thought expressed about law is rich in content or poor, simple.

6. Philosophy and legal theory differ qualitatively in their understanding of the essence of law. Legal theory has alienated law as its subject, since the starting point of analysis for it is not the subject, but social reality, society, all objectified forms of sociality. Therefore, law appears as a social institution for regulating people’s activities. In this case, law fundamentally cannot be seen as a form of spirituality, much less as a universal characteristic of social and individual existence.

For philosophy, the source of law is the subject, and law appears as an immanent attribute of a person. In society there is nothing fundamentally different from man and existing apart from him. Therefore, only by talking about law as a property of a subject, we are able to grasp law in its alienated forms.

Conclusion: the question of the essence of law cannot be raised in full by legal theory; in this matter, legal theory must turn to the connection with the philosophical interpretation of the problem.

For both philosophical-legal and theoretical-legal thought, law acts as a form of approval of a system of social goals, values, and ideas.

For lawyers, law is inextricably linked with the state and can only be understood through this connection.

Philosophy of law can play a very constructive role in relation to the general theory of law. It is able to help general legal theory realize the fundamental fragmentation of its understanding of law. Such an attitude will certainly have a positive impact on the results of a consistent and correct legal analysis. Philosophy of law helps to connect the analysis of law with the action of a system of conditions and factors inherent in social reality in its entirety, in its integrity.

The content of the fundamental problems of the philosophy of law is based on philosophical knowledge. But it does not at all follow from this that the entire content of these problems is purely philosophical. The laws and categories of general philosophy are not simply “illustrated” by legal material, but are modified, transformed, transformed in accordance with the specifics of the objects under study. Moreover, modern experience in the development of knowledge in the field of philosophy of law testifies to a peculiar two-pronged process: on the one hand, there is an “adaptation” of philosophical knowledge to the legal “environment”, philosophization of legal knowledge, and on the other hand, this “environment” itself is increasingly giving rise to such conditions for understanding legal reality that reach the heights of philosophical generalization. Both of these trends have a beneficial effect on the progress of legal philosophy.

In the field of philosophy of law, a certain test of the cognitive power of the philosophical doctrine itself takes place. Indeed, often a philosophical system and the categories included in it are focused mainly on data from the natural and traditional social sciences. And here, in the sphere of law, before science there is a peculiar, unique factual material that relates to the spiritual field and at the same time has an objectified, materialized character. This makes it possible to determine the vitality and cognitive capabilities of the corresponding philosophical categories and research approaches.

There are many points of view in the literature that seek to identify the philosophy of law with some purely legal discipline. This is especially true for the general theory of law, which was discussed above. To summarize, we can say that the theory of law studies law as a real social institution, the philosophy of law is the manifestation in law of only individual, albeit fundamental aspects of existence: the relationship between the material and spiritual, human free will and its material, spiritual predetermination (human and divine will). will - in religious systems), the content of public consciousness, etc.

Positive jurisprudence studies law as a reality independent of man, and philosophy of law (legal anthropology) studies the formation of law from human activity.

Philosophy of law is the doctrine of the meaning of law, that is, as a result of what universal reasons and for what universal purposes a person establishes law (Tikhonravov).

Legal topics, as is known, are studied by the entire legal science, the subject of which is the so-called positive (positive) law. Philosophy of law is engaged in the search for the truth about law. From the point of view of positive law, the whole truth about law is summed up in the law. Here the truth about law is exhausted by the will of the legislator.

But even simple reflections on positive law give rise to a whole series of questions, the answers to which require going beyond the framework of positive law. Why exactly these norms were given by the legislator as a positive law? What is law? What is its nature and essence, its specificity? What is the relationship between legal and other social norms? Why is it precisely the rules of law, and not religious or moral norms, that are ensured by the possibility of coercion? What is the value of law? Is the law fair and what does the justice of the law consist of? Is every law a right, or is it possible that there is anti-legal legislation, arbitrariness in the form of law? What is the path to legal law?

In general, all these issues can be reduced to the main thing - the problem of the distinction and relationship between law and law. This legal approach also applies to the state. Therefore, the subject area of legal philosophy traditionally includes problems of philosophical research of the state. The following questions are raised here: law and the state, man - society - state, legal forms of implementing the functions of the state, the legal organization of the state itself, the state as a legal institution, the rule of law as the implementation of the idea of the rule of law, etc.

Conclusions: Legal theory studies law as a real social institution, legal philosophy is the manifestation in law of the fundamental aspects of existence: the relationship between the material and spiritual, human free will and its material, spiritual predetermination, the content of social consciousness, etc.

Thus, the theory of law acts as inductive knowledge based on the achievements of specific legal sciences, while the philosophy of law is formed as deductive knowledge about law, derived from more general knowledge about the universe.

Question 2

PHILOSOPHY OF LAW IN THE SYSTEM OF PHILOSOPHICAL AND LEGAL SCIENCES

In ancient times, any knowledge about the world and man was called wisdom, and the bearers of this knowledge were called sages or philosophers. And regardless of the role of the sages’ activities, the knowledge they acquired was not dissected.

But as it accumulated, part of the knowledge “spun off” from philosophy. Physics arose as the study of nature, medicine as the study of preserving human health, astronomy as the study of celestial bodies. Moreover, differentiation occurred even in the spheres of social science and human studies, which by definition remained within the framework of philosophy.

Nevertheless, each separated discipline has common problems that it cannot solve by its own means and methods. To determine her subject, she needs to turn to a broader system of knowledge, to look at herself from the outside. Each discipline has universal postulates and principles that can only be understood based on philosophy. For physics, these are problems of time, space, existence, material and ideal; for medicine, these are problems of health, life, death, etc.

On the basis of such “requests” of particular sciences, a certain “layer” of philosophy is formed, in which it is, as it were, abstracted from its purely philosophical subject and considers particular theories, but from a specific, philosophical angle, namely from the position of the universal. Philosophical theories of non-philosophical knowledge appear. Philosophy of politics, philosophical anthropology, philosophy of war and peace, philosophy of religion, philosophy of physics, philosophy of science, etc. have already acquired the status of independent disciplines. Philosophy of law is also in this series.

All philosophical applications, depending on the subject of research, can be divided into the corresponding sections of philosophy. Philosophy of physics is primarily the realm of ontology; philosophy of science - epistemology; philosophy of religion, war and peace, law is primarily the sphere of social philosophy.

The genetic connection of social philosophy and philosophy of law is confirmed by the substantive unity of their subjects.

Social philosophy is traditionally viewed as the study of society. Philosophy of law is an integral part of social philosophy. In many studies, it is believed that the philosophy of law is a legal discipline, the subject field of which is determined by the sphere of law. I believe that the philosophy of law cannot be developed by jurisprudence. As already noted, philosophical and legal issues are broader than the cognitive, methodological and other possibilities of legal sciences. Moreover, the philosophy of law cannot be reduced to epistemology or cultural studies. This is an independent philosophical discipline, an integral part of social philosophy.

The theoretical justification for the unity of social philosophy and philosophy of law is the same object of study, namely the human life world. Social philosophy considers the life world as a whole and in interaction with all sorts of its determining factors, and the philosophy of law implies by it the interaction of the everyday reality of human life with the systemic world, that is, the world of norms, laws, regulations, regulations. It is this interaction that forms legal reality as an object of legal philosophy.

The relevance of the problem of the object and subject of the philosophy of law is largely due to the fact that in Soviet times the philosophy of law was not distinguished as an independent branch of philosophical knowledge. General issues of law were actually considered within the framework of the legal discipline “Theory of State and Law”. Attempts by some lawyers to isolate the philosophical component in legal knowledge led to the fact that the philosophy of law began to be constituted as part of legal theory, as the most general level of the doctrine of law. Philosophers, unfortunately, have reduced the interpretation of law to only one aspect of it – legal consciousness.

Even Hegel and other luminaries of philosophical and legal thought considered the philosophy of law to be philosophical knowledge. For example, G. Hegel saw the difference between the philosophical science of law and jurisprudence in the fact that the latter deals with positive law (legislation), and philosophy gives the essential concept of legal reality and the forms of its existence (legal relations, legal consciousness, legal activity).

So, the philosophy of law and jurisprudence are different in the subject of study. The subject of legal philosophy is the interaction of the everyday and systemic worlds of man, and legal science (theory of state and law) studies “the interaction of society and the state, the role and place of the state in the political system of society.”

Thus, philosophy of law and jurisprudence have a common object, but different subjects of study.

The philosophy of law has common facets with other scientific disciplines - sociology, political science, ethics, etc.

Thus, in the second half of the 20th century, lawyers tried to solve many legal issues based on sociology. Let us recall that sociology primarily studies individuals and their social properties, acts, causes and patterns in people’s behavior, the fate of individuals, and historical trends in changes in human life. Consequently, the sociological facet of legal theory is associated primarily with facts, the behavior of people “as things.”

From a sociological point of view, law is a process carried out in courts, administrative institutions, judicial executive bodies, legal offices, and in business negotiations between individuals of different professions and different social status. The right is realized through the use, interpretation, creation and application of social norms with legally binding force of action, secured by the legal sanction of a politically organized society. In fact, sociology studies the operation of norms, the activities of people in using them, and the circumstances of their application.

This aspect of legal topics is the subject of the sociology of law as a relatively independent discipline of sociological knowledge.

Philosophy of law has a different subject of study and, unlike the sociology of law, is not empirical, but theoretical knowledge.

However, both branches of knowledge are united by a common basic assumption that law exists in the social sphere and legal reality can only be understood in a social context.

From the same perspective, some legal issues are also studied by political science - a branch of knowledge about the theory and technology of politics and power, about the methodology for making political forecasts and assessments.

Philosophy of law and political science are genetically interconnected: the development of both philosophical-legal and political-legal thought went in line with philosophical teachings. The foundations of both sciences were laid by ancient philosophers - Plato, Aristotle, Cicero, thinkers of the Renaissance and Enlightenment - N. Machiavelli, F. Bacon, T. Hobbes, J. Locke, C. Montesquieu, J.-J. Rousseau, representatives of classical German philosophy I. Kant, G. Hegel, the founders of dialectical-materialist philosophy K. Marx and F. Engels.

The relationship between the philosophy of law and political science is manifested, in particular, in the fact that politics is implemented through law, and law depends on politics. But both the first and second require philosophical justification.

In the 20th century, the fate of political science and legal philosophy in Russia turned out to be similar: during the Soviet period they were “replaced” by historical materialism, and from the late 80s their revival began.

It is also important to note the differences between these disciplines. First of all, the philosophy of law does not consider particulars, not issues of technology, not specific states and forms of power, but the most general principles of interaction between law and power, law and politics, politics and law, politics and law-making, politics and the rule of law. In addition, these phenomena are studied from the position not of political, power-bearing interest, but from the point of view of universal human values and the development of world culture.

The philosophy of law is also interconnected with the relatively young and rapidly developing discipline of philosophical anthropology. For the philosophy of law, legal reality is unthinkable outside of man as a legal being; there is no law outside of man, and there cannot be. But a person behaves differently in different situations; a combination of natural and social is obvious. Therefore, the philosophy of law, based on the achievements of philosophical anthropology, takes into account the dual essence of man: natural - human life itself, and social - his relationship with other people and society as a whole.

Knowledge of the subjective properties of a person is not only a philosophical and anthropological sphere, but also a philosophical and legal one. Today, in the age of new technologies, genetic engineering, changing human nature through artificial insemination, cloning, preserving the sperm of “great” (and in fact rich) people, etc. has become a reality. It is obvious that these problems require not only technological or philosophical-anthropological, but also philosophical and legal understanding.

The main components of the philosophy of law as a scientific discipline include:

– philosophical and legal ontology as a doctrine about the basic principles, forms, methods of existence and development of legal reality; as a doctrine of law, legal norms, legal laws, legal consciousness, legal relations, legal culture and other phenomena of legal reality;

Philosophical and legal epistemology as a doctrine of the nature, methods and logic of knowledge and interpretation of legal reality; about the relationship between the empirical and theoretical, rational, emotional and irrational in law;

– philosophical and legal axiology as a doctrine about the meaning of law as a value; on the relationship between the utilitarian and non-utilitarian, scientific and ideological in law; about law as justice and the common good;

– philosophical and legal praxeology as a doctrine about practical lawmaking and practical implementation of law, about the principles of legal activity.

Conclusions: So, the philosophy of law is an integral part of social philosophy. Philosophical and legal issues are broader than the cognitive, methodological and other possibilities of legal sciences. The theoretical justification for the unity of social philosophy and philosophy of law is the same object of study, namely the human life world. Social philosophy considers the life world as a whole and in interaction with all sorts of its determining factors, and the philosophy of law implies by it the interaction of the everyday reality of human life with the systemic world, that is, the world of norms, laws, regulations, regulations. It is this interaction that forms legal reality as an object of legal philosophy.

A single object also contains the subject of the philosophy of law as a philosophical discipline that explores the most general principles of the human life world and its cognition, the principles of interaction of a person’s everyday reality with the systemic world, the universal principles of existence, cognition and transformation of legal reality.

Question 3

FUNCTIONS OF PHILOSOPHY OF LAW

Philosophy of law, like any scientific system, performs a number of functions, the totality of which determines its theoretical capabilities.

The ideological function allows the philosophy of law to develop the most general ideas about legal reality, the place of man in the interaction of the systemic world with everyday reality and provide adequate knowledge about the life world.

The methodological function is expressed in the fact that the philosophy of law acts as a universal algorithm for the study of legal reality, equips specific legal sciences and the individual with a system of scientific methods of cognition and transformation of legal reality.

The axiological function is associated with the evaluative study of what is and what is proper, what is lawful and what is unlawful, what is legal and what is illegal. In this regard, the philosophy of law acts as a worldview, as a methodology, and as a technology.

Educational function. The knowledge that Socrates put duty above life evokes respect and admiration for this act, and the knowledge that the trial of Socrates was wrong develops in the future specialist a thoroughness and balance when assessing any event. With the entire complex of its cognitive capabilities, the philosophy of law focuses on a critical attitude to legal reality, on identifying the contradictions between what is and what should be, freedom and necessity, true justice and imaginary justice.

Finally, the philosophy of law is necessary for a specialist for practical activities, for acquiring knowledge and skills to optimize legal relations, for developing the ability to form legal awareness, for identifying the conditions and factors for improving legal reality.

Of course, the philosophy of law does not claim to be the “science of all sciences,” especially since it does not replace other systems of knowledge. On the contrary, the philosophy of law realizes its functions in interaction and mutual agreement with other social, humanitarian and special sciences; it is closely related to the practice of forming legal consciousness, educating an educated, theoretically prepared and methodologically armed legal person of the 21st century.

Conclusions: So, the philosophy of law, like any scientific system, performs a number of functions: ideological function, methodological function, axiological function, educational function. With the entire complex of its cognitive capabilities, the philosophy of law orients a person towards a critical attitude towards legal reality, towards identifying contradictions between what is and what should be, freedom and necessity, real justice and imaginary justice.

Question 4

LEGAL POSITIVISM

The need to substantiate the philosophy of law is due to the existence of a position that denies the necessity and possibility of philosophy of law. This position is legal positivism. It was within the framework of this direction of legal thought that all the main arguments against the philosophy of law were formed.

Over the past 200 years, legal positivism has formed a fairly strong, autonomous legal worldview, which has become dominant in many countries of the world. The opposing philosophical, natural-law doctrines did not succeed in this. Over the millennia of their existence, they were unable, and did not strive, to separate the system of legal views from religious and ethical views.

In the theory of law, the dominance of “juridism” (French legal scholar Jacques Leclerc), i.e., the predominance of a narrowly professional legal approach to the phenomenon of law, became increasingly noticeable. “Juridism” means an attempt to separate law from the entire complex of sciences about the spirit, which leads to the separation of legal science from reality and from other areas of knowledge and, above all, from philosophy, sociology, political science and anthropology.

“Juridism” became one of the trends in the formation and strengthening of legal positivism; Another such trend was the growing dominance of empiricism as the fundamental orientation of legal research. Legal positivism with a pronounced empiricism gave the law a completely definite practical bias. Freed from unnecessary, and often necessary, spiritual and moral burden, the law began to steadily develop along the path of increasing pragmatization. Legal researchers note that legal thought, having descended from metaphysical heights, became realistic, turned to the problems of the material life of society, and this was good. But almost immediately the law had to pay heavily for this splendor. It deliberately went into the service of powerful, real forces in society - the political and economic elite. The philosophy and logic of legal positivism pushed him to this.

Until now, no one has surpassed the positivist lawyers in terms of the cynical exaltation of force in law, and force is always on the side of those who have power and wealth. Law, which is not obliged to serve God, reason, the nature of things, the highest spiritual values, seeks other values and finds such things as individualism, selfish calculation, success, profit, power over other people, etc. With formal equality of legal opportunities for all For citizens, the freedom of the strong excludes the freedom of the weak, individualism does not allow the individuality of the weak to manifest itself, benefit and success are always on the side of the strong. This initially programmed rigidity of positivist jurisprudence is manifested in its orientation towards middle-level values, that is, values of an empirical nature, the criteria of which are located between “useful” and “unuseful”, “profitable” and “unprofitable”, “success” and “failure”. Law recognizes any success, even unjust, if it does not formally conflict with legal norms, and thereby legitimizes it and makes it an immutable legal fact.

Legal positivism, especially legalistic positivism, and the jurisprudence of interests with their formal dogmatic tools turned out to be unable to comprehend the phenomenon of law. Already by the end of the 19th century, a crisis of positivist philosophy broke out, and the narrowness of empirical and descriptive methods of cognition was revealed. It was discovered that “metaphysical”, speculative knowledge about law, “high abstractions”, which were resorted to by adherents of natural law doctrines, cannot be supplanted and replaced by “positive” knowledge. The latter, according to positivists, expresses the objective world of law, legal facts and processes, beliefs, ideas, interests, feelings and manifestations of will, historical sources of law, documents, etc., as well as logical connections between all these phenomena. This kind of positive knowledge actually satisfies the needs of studying empirical legal reality, but only if we abstract from the accidents and unusual conditions of development of the legal order, crises, radical changes, and recessions that take place in legal life. Logically deduced legal knowledge and the entire legal-positivist methodology turn out to be powerless in an extraordinary legal situation.

Revolutions and crises turn into such situations, in which society for quite a long time is in a state of diverse socio-tectonic shifts at a variety of levels. Legal positivism as a special direction of legal thought took shape during the era of the formation of national centralized states in Europe. It embodied the ideas of strengthening statehood, the desire for unity, order and stability. All the flaws and shortcomings of legal positivism are revealed when, under the pressure of social criticism, the stability of the social order is lost, and alternatives are sought for it. Criticism begins of laws reflecting the principles of the old order, and of legal positivism, which absolutizes these laws.

A Russian lawyer at the beginning of the century noted that the short-lived dominance of legal positivism had a more than sad effect on the state of German and Russian legal science. Legal positivism demonstrated a striking disrespect for the law, crossing it out as a high spiritual phenomenon that carries universal, timeless principles, and presenting it either as a reflective system reacting to the topic of the day, or as a special technique serving social relations.

The incompleteness and limitations of legal-positivist issues, which are primarily in the sphere of application of law and legislation, have long been noted. Positivists try not to violate the secret of the creation of law, leaving it to the legislator, the sovereign, who utters legal imperatives, commands and orders. Lawmaking lies beyond the attention of positivist jurisprudence. This activity requires a special kind of knowledge about possible, recommended and desirable future law, enormous value information, and involves the search for meaningful legislative solutions that satisfy known criteria of justice and morality. As a rule, people strive not just for law, but for fair law with moral potential. Legal positivism cannot offer anything necessary for the search for such a right.

The reason lies in the limitations of positive legal knowledge, aimed at comprehending phenomena (phenomena), and not essences, counteracting any value-based (metaphysical) approach to law.

A positivist lawyer works only with the law in force, and he, like a bureaucrat, recognizes only the written law, a document certified by the signature and seal of the legislator. What is written in a document formalized as a law is actual law, for which it is necessary to develop a mechanism of action (law enforcement). In terms of assessing the content of the law, legal positivism, in general, is uncritical, admits itself to be incompetent to solve these problems of law, and leaves them to the mercy of fate.

Although legal positivism has, in general, proposed good private methodologies for the application of various types of legal norms, the limited nature of positive legal knowledge negatively affects the possibilities of studying law enforcement and practically excludes serious research into law-making processes. Legal positivism, therefore, is initially unable to raise the fundamental problems of jurisprudence and create a complete theory of law and law-making.

Whether the law is fair is not a question for a positivist lawyer; he is dealing with “ready-made” positive law. The maxim “the legislator is always right” reflects the principled position of legal positivism.

The identification of law with the system of laws, characteristic of many varieties of legal positivism, strongly tied legal science to the will of the legislator and led to the fact that the most important thing - law - dropped out of jurisprudence. In its place was established the “creation” of the legislator, perceived dogmatically, without critical reflection. Legal positivism opens up wide possibilities for identifying law with the highly probable arbitrariness of rulers in modern societies, called upon by the will of fate to carry out legislative functions.

The fetishization of the legal form without regard to its content creates a temptation for lawyers to unscrupulously recommend to society as law what in reality is only the will of the ruling clique. It is not surprising that after the Second World War, intellectual responsibility for the excesses of fascist law in Germany was assigned to legal positivism. The more precisely and strictly a lawyer demands compliance with an undemocratic, unjust law, the more damage he causes to the law, undermining the foundations of normal public legal consciousness.

All of the listed consequences and attributes of the dominance of legal positivism allow us to draw a categorical conclusion about the need to revive the metaphysical approach to law, raising questions about the meaning of law, about the assessment of certain legal institutions, about the origins and ultimate fate of law, etc. Therefore, the presence or absence of philosophy law, both in scientific research and in education, has the most serious impact on both the state of legal sciences and the state of legal practice, that is, ultimately, on the state of law and society.

Conclusions: So, many varieties of legal positivism are characterized by the identification of law with a system of laws. This circumstance tied legal science to the will of the legislator and led to the fact that the most important thing - law - dropped out of jurisprudence. Legal positivism opens up wide possibilities for identifying law with the highly probable arbitrariness of rulers in modern societies, called upon by the will of fate to carry out legislative functions.

All this allows us to draw a categorical conclusion about the need to revive the metaphysical approach to law, raising questions about the meaning of law, about the assessment of certain legal institutions, about the origins and ultimate fate of law, etc.

CONCLUSION

The role of philosophy in the study of law is unique. This uniqueness stems from the unique status of philosophy in general, its place in the cultural system. When determining the subject specificity of the science of law - the general theory of law - the determining factor is the object itself (law), which dictates the logic of its research.

The philosophical approach is distinguished by the fact that it substantiates law from the point of view of authorities external to the law, and the cognitive initiative comes from philosophy. What exactly acts as such authorities depends on the specific philosophy. Therefore, reflection on the substantive, problematic and methodological uniqueness of the philosophy of law is impossible without clarifying the understanding of philosophy, which is not constant, but is subject to spatio-temporal adjustments.

The whole variety of discursive practices aimed at studying law can be united under the common name “legal studies”. It consists of three sections: philosophy of law; jurisprudence, the foundation of which is the theory of law; social sciences and humanities that study the social and humanitarian aspects of the existence of law. These include: sociology of law, psychology of law, anthropology of law, political science of law. Each of the sections has its own specifics in the study of law, and in their unity they provide complete knowledge about the law.

The study of legal reality is based on the general principles of the theory of knowledge. However, taking into account the specificity of the object of knowledge, the means and operations used, we can talk about highlighting a special, legal epistemology in the theory of knowledge as a doctrine of the general principles of knowledge of legal reality.

The methodological equipment of a specialist is ensured by the knowledge and ability to apply the most diverse methods, techniques and techniques in the cognitive process. Methodological pluralism serves as a kind of counterbalance to dogmatism, practicality and scholastic theorizing as unacceptable extremes in the knowledge and transformation of legal reality.

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