- Theory of state and law as a science and academic discipline
- Theory of state and law as a science
- Subject of science: theory of state and law
- The structure of the science of the theory of state and law
- Methodology of science, theory of state and law
- Theory of state and law in the system of humanities
- Theory of state and law in the system of legal sciences
- Functions of science, theory of state and law
- Origin of state and law
- Basic theories of the origin of the state and government
- Social structure, power and management in primitive society
- Origin of the state (modern interpretations)
- Origin of law
- Concept, essence, typology and functions of the state
- Concept of state
- The essence of the state
- Social purpose and functions of the state
- State power and its mechanism
- The concept of state power
- Structure of government
- Mechanism of state power
- Principles of organization and activity of the state apparatus
- Concept and classification of state bodies
- Public administration and self-government
- Forms of state
- Concept and elements of the form of state
- Forms of government
- Form of government
- State legal regime
- Law in the system of normative regulation of public relations
- Concept, signs and general characteristics social norms
- Technical and legal-technical standards
- Essence of law
- Concept and signs of law
- Principles of law
- Functions of law
- Rules of law
- Concept and characteristics of the rule of law
- Structure of the rule of law
- The relationship between the rule of law and the article of the normative legal act
- Types of law
- Sources (forms) of law
- The concept of form and source of law
- Types of sources (forms) of law
- Legal system
- Concept and structural elements of the legal system
- The subject and method of legal regulation as the basis for dividing the legal system into branches
- Private and public law
- General characteristics of branches of Russian law
- Lawmaking
- Lawmaking: concept, principles and types
- The concept and stages of lawmaking in the Russian Federation
- Systematization of legislation
- The relationship between the legal system and the legislative system
- Realization of the right
- Concept and forms of implementation of law
- Application of law as a special form of its implementation
- The concept of an act of application of law and its types
- Interpretation of law
- Concept of interpretation of law
- Ways to interpret the law
- Types of interpretation of law
- Analogy in law
- Acts of interpretation of law
- Legal relations
- Legal relationship: concept, characteristics and structure
- Subjects of legal relations
- Subjective right and legal obligation as the content of a legal relationship
- Types of legal relations
- Legal facts
- Lawful Conduct
- Concept and signs of lawful behavior
- Composition of lawful behavior
- Types of lawful behavior
- Offense
- Concept and signs of an offense
- Legal structure of the offense
- Types of offenses
- Legal liability
- Concept, signs and grounds of legal liability
- Goals and functions of legal responsibility
- General characteristics of types of legal liability
- Legal awareness and legal culture
- Concept, structure and types of legal consciousness
- The concept and general characteristics of the legal culture of society and the individual
- Legal nihilism
- Law and order
- Concept and principles of legality
- Guarantees of legality
- Legal order: concept and structure
Private and public law
The last decade has been characterized by revitalized discussions about the legal system and its classifying criteria, and the issue of dividing law into public and private has become relevant. The emerging interest in such a classification among Russian legal scholars is explained by the fact that during the Soviet period of development of legal sciences the existence of private law was completely rejected, although outside the socialist system its recognition was very popular. In the structure of law, legal norms can be divided into two large groups: private and public law.
Private law is an ordered set of legal norms that protect and regulate the relations of private individuals. Public law forms norms that establish the procedure for the activities of public authorities and management. If private law is the area of freedom and private initiative, then public law is the area of power and subordination.
Private and public law relate to each other as two interacting systems. Art. 2 of the Russian Constitution defines the rights and freedoms of man and citizen as the highest value of the state. However, the interests of social development, ensuring law and order and protecting society from crime require, in order to protect public interests, the presence of a mechanism for limiting human rights, i.e. the rights of society and the state in relation to a specific person are determined (Part 3 of Article 55 of the Constitution). Therefore, the entire system of norms can be divided into two groups: norms defining the rights of private entities and the relationships between them, and norms defining the status of public entities and the exercise of their powers.
In modern Russia, only bodies exercising state power or municipal powers can act as public subjects. Accordingly, those branches of law that “serve” these legal relations are public. These are constitutional, administrative, financial, criminal, penal law, etc., as well as all procedural branches of law. The remaining branches of law that regulate public relations with the participation of private entities acting in their own interests form a block of so-called private branches of law: civil, family and partly labor law.
Of course, there are no absolutely public or absolutely private branches of law. In any branch of law related to the public law block, there are individual elements and mechanisms based on the method of power and subordination and expressing the interests not of individual subjects, but of society as a whole and state interests. For example, in family law there is the institution of deprivation and limitation of parental rights and the collection of alimony. In labor law, the institution of disciplinary liability, and indeed all labor discipline, is based on the imperative method of legal regulation, which is reasonably combined with the incentive method.
Scientists identify the following criteria, depending on which certain norms of law are classified as private or public law: 1) interest (if private law is intended to regulate personal interests, then public law - public, state); 2) the subject of legal regulation (if private law is characterized by rules regulating property relations, then public law is characterized by non-property ones); 3) the method of legal regulation (if in private law the method of coordination dominates, then in public law it is subordination); 4) subject composition (if private law regulates the relations of private individuals among themselves, then public law regulates the relations of private individuals with the state or government bodies with each other).
Currently, such institutions of private law as the right of inherited lifelong ownership, intellectual property, private property, compensation for moral damage, etc. are increasingly being established in the Russian legal system.
Recognizing the importance and significance of such a classification, it should be noted that the distinction between private and public law is rather conditional and is focused primarily on determining the place and role of private law in the general mechanism of legal regulation. The rules of private law, consolidating the rights and obligations of a person, are provided with an appropriate mechanism for coercion to comply with rights and obligations, however, unlike public law, the use of coercion depends on the will of the injured party.
Soviet official legal doctrine had a negative attitude towards the idea of dividing law into private and public, considering it artificial and designed to disguise the essence of the bourgeois system. The position expressed in the 20s. during the development of the Civil Code of the RSFSR V.I. Lenin’s statement that “we do not recognize anything “private”; for us everything in the field of economics is public law, not private”, served for a long time as a methodological guideline for legal theory and practice.
As for intra-sectoral differentiation, the prerequisites have already been created for separating municipal law from constitutional law. Based on the experience of foreign countries, it can be assumed that there will be a spin-off of tax law from financial law (in the USA, for example, this is the largest industry).
The legal system is under significant influence of the subjective factor - the rule-making activity of the state. Accordingly, this factor will also have a significant impact on the relationship between private and public law. Obviously, it can be assumed that if the idea of a strong state prevails, this will simultaneously mean a strengthening of public law principles in public life. If the principle of the state being bound by law turns out to be a real fact, then private law principles will expand their spheres of influence.
Constitutional law
Constitutional law- leading industry of national legal system, representing a set of legal norms that define the foundations of the constitutional system, the legal status of a person and a citizen and consolidate the state structure, the system of state power and local self-government. Constitutional law is characterized by a special subject and method of regulation. The subject of constitutional law is social relations that arise in the process of realizing the sovereignty of the Russian people in all its forms, ensuring the functioning of the institutions of representative and direct democracy. The special role and purpose of constitutional law is to ensure the sovereignty of the people in all spheres of society. This area of legal regulation is the exclusive prerogative of constitutional law, and it is not characteristic of any other branch of law. As a branch of public law, constitutional law uses the method of legal influence inherent in all branches of public law. At the same time, constitutional law has a special way of constitutional influence - establishment, significantly different from other methods of legal regulation (permission, prescription and prohibition). The legal design of a constitutional establishment is such that it does not presuppose precisely defined (personalized) rights and obligations of specific subjects, participants in legal relations - constitutional establishments have a general, universal character, are addressed to all or many types of subjects, and, as a rule, do not give rise to specific legal relations. being realized in the so-called general constitutional relations (for example, Article 10 of the Constitution of the Russian Federation).
Administrative law
Administrative law- a branch of public law, the subject of regulation of which is the relations that develop in the process of organization and activity of executive authorities. The norms of administrative law regulate public legal relations of power - subordination, in which one of the parties is necessarily the executive body of power (official), endowed with state power.
Financial right
Financial right as a branch of public law, it is represented by a set of norms through which the regulation of relations arising in the process of formation, distribution and use of state monetary funds is carried out. Unlike administrative legal relations, financial legal relations are property (monetary) relations that arise in the process of financial activities of the state regarding funds. A feature of financial law is the presence in its composition of sub-branches of law - budgetary, tax, banking.
Criminal law
Criminal law - branch of public law that regulates relations related to crime and the punishability of acts. Like any branch of law, criminal law consists of a set of legal norms. The norms of criminal law are norms-prohibitions. They prohibit socially dangerous actions and inactions of people under the threat of using special means of state coercion - criminal punishment. Criminal law as a set of legal norms is divided into General and Special parts. The General Part contains general provisions on criminal liability, the concept of crime, forms and types of guilt, circumstances excluding criminality and punishability of the act, the procedure and conditions of criminal liability in various forms unfinished crime, responsibility for complicity in a crime, the concept and types of criminal punishment, the procedure and grounds for imposing punishment and exemption from criminal liability. The General Part also defines the conditions of a suspended sentence, the concept of a criminal record and how to terminate it, the concept of amnesty, pardon, etc. If the General Part establishes the general provisions, principles and institutions of criminal law, then the Special Part provides for specific types of crimes and indicates the punishments that may be applied for their commission. The General and Special parts are closely interconnected and characterized by unity. This unity is manifested in the fact that they perform the same tasks - protection from crimes of the individual, society, and state; the norms of the General Part are the basis for the norms of the Special Part. The norms of the Special Part specify the general concepts of crime contained in the General Part. The special part defines and describes those types of acts that the criminal law considers crimes.
Environmental law. Civil procedural law
Environmental law- a relatively “young” branch of law, the norms of which regulate relations between people and organizations for the purpose of rational use of natural resources and environmental protection.
The public law system includes procedural branches of law- criminal procedure and civil procedure (judicial law). Norms criminal procedure law are intended to regulate the activities of investigation, consideration and resolution of criminal cases. Civil procedural law has as its official purpose the establishment of the procedure and procedure for resolving civil cases by courts.
Public international law
Public international law- a set of norms and principles contained in conventions, international treaties, acts and charters of international organizations that are not an integral part of the national system of law, which regulate relations between states and other participants in international communication.
Civil law
Civil law- the leading, basic branch of private law, the subject of regulation of which are property and related non-property relations based on equality, autonomy of will and property independence of their participants. Civil law is a multi-component branch of law; its content covers such sub-branches as copyright, inheritance, invention, etc.
Family law
Subject of regulation family law are personal and related property relations arising from marriage and family membership. Family code Russian Federation, which regulates these relations, as well as Part 2 of the Civil Code of the Russian Federation, came into force on March 1, 1996.
Labor law
Labor law As part of the private law system, relations regarding the use of labor in state, public and private enterprises, institutions and organizations are regulated on the basis of a combination of interests of their participants. The subject of regulation in labor law is the relationship between the employee and the employer regarding his work. The subjects (parties) of labor relations are employees (able-bodied citizens who have reached the age of sixteen), employers or enterprises of any form of ownership represented by their administration, the workforce, and in some cases administrative managers (officials appointed during the reorganization of a bankrupt enterprise in order to improve production ) and some other subjects.
Land law
Land law is a branch of private law that regulates relations related to the ownership, use and exploitation of land.
The subject of regulation of land law is the relationship that develops between citizens, legal entities, as well as the state and its bodies in the process of realizing ownership of land, ensuring its protection and increasing soil fertility. The subjects of land law are citizens of the Russian Federation and foreign states, stateless persons, legal entities, the state and entities that may be participants in land law. legal relations.
International private law
International private law- a set of rules of law governing civil, family, marriage and labor relations of an international nature. The subject of private international law is relations that in the Russian Federation are regulated by the norms of civil, family and labor law, complicated by a foreign element, i.e. those that are international in nature. The peculiarity of legal relations in private international law is that they involve foreign citizens and foreign legal entities, their object is a thing located abroad, they are associated with the territory of two or more states. Private international law is, therefore, a specific branch national law.
A legal system is an internal structure of law, consisting of mutually agreed norms, institutions, sub-sectors and branches of law.
In other words, a legal system is an ordered set of all existing legal norms of a given state. The systematic nature of the array of all existing norms of law is manifested in their unity, mutual consistency, and consistency. The orderliness of the set of all existing legal norms is also manifested in their distribution across industries and institutions.
The main structural elements of the rights system: - branch of law; sub-branch of law; Institute of Law; sub-institute of law; rule of law.
Rules of law are the initial component, those “bricks” from which the entire “building” of the legal system is ultimately composed. A rule of law is always a structural element of a certain institution of law and a certain branch of law.
The institution of law is a separate part of the branch of law, a set of legal norms that regulate a certain aspect of qualitatively homogeneous social relations (for example, property rights, inheritance law - civil law institutions).
A branch of law is an independent part of the legal system, a set of legal norms that regulate a certain area of qualitatively homogeneous social relations (for example, civil law regulates property relations).
Features of the legal system
:-its primary element is the rules of law, which are combined into larger entities - institutions, sub-sectors, industries;
Its elements are consistent, internally consistent, interconnected, which gives it integrity and unity;
It is determined by social-ecological, political, national, religious, cultural, historical factors;
It has an objective character, because it depends on objectively existing social relations and cannot be created at the purely subjective discretion of people.
The concept of “system of law” should not be identified with the concept of “legal system”. The latter is broader in scope and includes, in addition to the legal system, legal entities. practice and dominant legal ideology. Thus, the legal system and the legal system are related as a whole and a part.
Types of criteria for the distribution of legal norms across branches of law:
a) subject of legal regulation; b) method of legal regulation.
The subject of legal regulation is a type of qualitatively homogeneous social relations that are regulated by law.
The method of legal regulation is a set of methods, techniques, and means of influencing law on social relations. In other words, the method of legal regulation is a certain set of legal instruments through which the state in one way or another influences the volitional behavior of subjects of social communication (participants in social relations). The basis of the method of legal regulation is the so-called. methods of legal regulation.
Among the methods of legal regulation there are:
a) obligation; b) permission; c) prohibition.
When regulating social relations, a different ratio of methods used is possible. For example, in administrative law the use of obligations by the Legislator as a method of legal regulation is dominant, in criminal law - prohibitions.
Specific methods of legal regulation, i.e. those used in certain branches of law, usually include methods: imperative (the method of an authoritative order, usually expressed in the form of a norm-prohibition), dispositive (represents the possibility of choosing one or another behavior option within the framework of the law ), incentive (aimed at stimulating certain forms of lawful behavior), recommendatory (certain forms of behavior are recommended to subjects of law).
Legal norms can be divided into 2 large groups:
On private and public law.
To divide law into private and public, the nature of the legal relationship between the individual and the state is necessary. structures of society. If the person is an independent subject of law – such a right is private. If the subject acts as part of a social whole, such a right is public.
Private law includes those industries that are designed to ensure the interests of private individuals (civil, banking, insurance, patent).
Public law includes branches of state, administration, and criminal law.
Their difference is based on the fundamental difference between private and public interests and lies in the nature and methods of influence of law on regulated social relations.
If private law is the area of freedom and private initiative, public law is the area of power and subordination.
Private law consists of the branches of civil, business, and family law, while public law consists of the branches of constitutional, administrative, financial, criminal, etc.
The trace is highlighted. criteria, depending on which the rules of law are classified as a state of emergency or PP:
1) interest (if the state of emergency is intended to regulate private interests, then the private enterprise is public, state);
2) the subject of legal regulation (if the state of emergency is characterized by rules regulating property relations, then the PP are non-property relations;
3) the method of legal regulation (in the state of emergency the coordination method dominates, in the PP it is subordination);
4) property interest of the participants in the relationship
(in a state of emergency - they are characterized by property independence).
Currently, in the Russian legal system, such institutions of emergency as the right of inherited lifelong ownership, intellectual property, compensation for moral damage, etc. are increasingly being established.
Legal system- this is the internal structure of law (structure, organization), which develops in an objective way as a reflection of actually existing and developing social relations.
It includes five main components: rules of law, legal institutions, branches of law, sub-institutions and sub-sectors.
Branch of law is the largest element in the legal system. It is formed by a set of legal norms that regulate a qualitatively homogeneous group of social relations by the uniqueness of the subject and method of legal regulation.
Law Institute is a separate group of legal norms regulating qualitatively homogeneous social relations within one branch of law.
Several legal institutions similar in nature of regulation form sub-branch of law. For example, civil law includes copyright, housing, and patent law; financial law includes a sub-branch of tax law.
Subject of legal regulation It is generally accepted to consider social relations regulated by a given set of rules of law. Each industry has its own subject of regulation, the specifics of regulated social relations. Not all social relations can be the subject of legal regulation.
Method of legal regulation- this is the method of influence of law on social relations determined by the subject.
Methods of legal regulation are characterized by three circumstances: a) the procedure for establishing the subjective rights and obligations of subjects of social relations; b) means of ensuring them (sanctions); c) the degree of independence (discretion) of the subjects’ actions.
In accordance with these criteria, legal science distinguishes two main methods of legal regulation: imperative and dispositive.
Imperative method(it is also called authoritarian, imperious) is based on subordination, subordination of participants in social relations. This method strictly regulates the behavior (actions) of subjects; they, as a rule, are placed in an unequal position, for example, a citizen and an administrative body. This method is typical for criminal, administrative, and tax law.
Dispositive method (autonomous), by establishing the rights and obligations of subjects, it provides them with the opportunity to choose a behavior option or, in addition, regulate their relationships by agreement. This method is inherent in civil, family, and labor law.
Private right - it is an ordered set of legal norms that protect and regulate the relations of private individuals.
Public law form norms that establish the procedure for the activities of public authorities and management.
33. Branch of law: concept and types. Grounds for dividing the legal system into branches.
Branch of law- an element of the legal system, which is a set of legal norms governing a qualitatively homogeneous group of social relations. The industry is characterized by the uniqueness of the subject and method of legal regulation.
Constitutional law;
- civil law;
- administrative law;
- criminal law;
- labor law;
- family law;
- land law;
- agricultural law;
- financial right;
- criminal-executive law;
- civil procedural law;
- criminal procedural law.
The division of law into branches is based on the subject and method of legal regulation. Under subject of legal regulation is understood as a set of social relations that require legal influence. Each branch of law regulates its own special area (sphere) of social relations of a single-order nature (homogeneous), the originality of which makes it possible to distinguish one branch of law from another. The second criterion for delimiting one branch of law from another is the method of legal regulation. If the subject acts as a material criterion for delimiting branches of law, then the method (formal legal criterion) helps to understand how (in what way) legal regulation is carried out.
The method of legal regulation refers to the methods of legal influence of the branch of law on social relations determined by the subject of regulation.
The method of legal regulation is implemented in certain social relations using such methods of legal regulation as permission, prohibition and obligation:
– permission– granting a person the right to perform certain other actions not prohibited by law;
– obligation– imposing on the subject the obligation of certain behavior, performing certain actions;
– prohibition– imposing on the subject the obligation to refrain from certain behavior, from performing certain actions.
Legal system - totality internally consistent, interconnected, legal means, with the help of which public authority influences social relations. Includes law itself, legal practice, and legal science.
Legal system– part of the legal system is internal structure of law, showing its division into industries, institutions and individual norms. Consistency is the most important quality of law and means consistency, consistency, and complementarity of legal norms.
The structural elements of the legal system are:
1) rule of law, the primary element of the legal system.
2) branch of law, a set of homogeneous legal norms regulating a certain area of social relations
3) sub-branch of law, regulates certain social relations (in civil law - copyright, housing; in land law - mountain, water)
4) Institute of Law, a small group of legal norms regulating a certain type of social relations (the institution of marriage, family)
The grouping of branches of law into two categories - branches of public private law dates back to the era of Ancient Rome. Roman lawyer Ulpian(II–III centuries) believed that public law protects the general interests of the state, private law protects the interests of individuals.
Classification criteria legal norms on the norms of public and private law are the ones they carry out in society the role and nature of the interests protected by certain norms.
Public right– a set of norms that ensure the protection of generally significant (public) interests - the interests of society and the state; it establishes the procedure for the activities of public authorities. Public law consists of branches that are related to the powers and functioning of the state - constitutional, administrative, financial, criminal, criminal procedural, public international law.
Public law is characterized by the following features:
1) Orientation to satisfy the public, public interest;
2) Dominance mandatory norms authority subordination
3) Subordination of subjects and legal acts;
4) Unilateral expression of will of subjects;
5) Sanctions predominantly penalty (punitive) character;
6) Large degree centralized settlement.
Private right - This is a set of legal norms that protect and regulate the relations of private individuals. Private right serves the needs of people arising on the basis of property and personal non-property relations - civil, family, international private law.
Private law has the following features:
1) Focus on satisfaction of private, personal interests;
2) The predominance of dispositive norms;
3) Equality of subjects legal relations;
4) Freebilateralexpression of will subjects, the use of a contractual form of regulation;
5) Legal restoration sanctions;
6) Decentralization, since subjects can, by their own will, determine the conditions of their own behavior (for example, a marriage contract in family law, the terms of an author’s contract)
The problem of distinguishing between public and private law is controversial in legal science. This is explained by the fact that in various branches of law there is interpenetration and close cooperation of public and private principles.