Headings
...

Formal-legal method of cognition of the theory of state and law: description, features and functions

The method of formal legal analysis is widely used in the study of regulatory material. It helps to identify logical ties, abstracting from various socio-economic, political, ideological and other phenomena. The formal legal method of legal science is characterized by a limited scope. However, despite this, it is of great importance for the formation and implementation of regulatory material recognized by citizens and under the control of relevant civil society institutions. Let us further consider in detail what constitutes a formal legal method of knowledge of law. formal legal method

Prerequisites for the emergence

One of the founders of the historical law school G. Hugo legal dogma was considered as one of the three elements of jurisprudence. Along with it, the institute included the philosophy and history of regulatory material. At the same time, Hugo called the legal dogma a combination of dogma and the doctrine of positive law. He considered it as a craft, for which it is enough to have information about the sources of existing norms. The legal methodology has become the subject of study by many figures, for example G.F. Pukhta. It was an open system with the ability to adapt to a variety of conditions and development. This question was also raised in the works of K.F. von Savigny. He studied the systemic side of law, taking into account the specifics of its essence and history. Thus, the followers of the school made a great contribution to the process of developing a dogmatic approach. On the one hand, they emphasized systemicity, and on the other, the effectiveness of law. formal legal method in legal research

Thought development

As part of the legal-dogmatic approach, the analytical side of science began to take shape. The ideas of this direction were developed in the works of neopositivists of the 20th century. For example, G. Kelsen, explaining the approach to a normative institution and his theoretical concept, pointed out that pure doctrine is a discipline of positive law in general, and not a specific rule of law. And then he explained his position. Kelsen pointed out that the doctrine of law is called pure, since it studies only this institution. To a certain extent, it cleans the subject of everything that is not normative material in the strict sense. Simply put, it seeks to free the institution from elements that are foreign to it.

Formal legal method in legal research

The positivist developments of this approach have made a significant contribution to the development of the entire discipline. They contributed to the enrichment of its conceptual apparatus, a set of study tools. The formal legal method had a great influence on the process of improving and rationalizing normative material in accordance with the doctrinal provisions on its sources, structure and system, methods of interpretation, systematization and unification. He also contributed to the development of appropriate standards-setting models and prescriptive activities. Meanwhile, representatives of natural views indicate that the formal legal research method is an approach by which the normative material existing in a given society for a specific period of time is a strictly defined reality.In other words, it, regardless of the attitude of society to it and the implementation of certain actions that change it, must be understood and applied in the form in which it is defined in its sources (laws, etc.). formal legal method of cognition

Development features

In the development of a dogmatic approach, a significant role belongs to Roman law and the process of its reception. In addition, it was widely developed within the framework of the regulatory institute of the New and Contemporary Times, acquiring in some cases hypertrophied expression. The formal legal method refers to methods that must be handled with extreme care. Studying the material only with its use can lead to the absolutization of the normative regulation of relations in society.

Nuance

Considering the formal legal method as one of the areas of discipline, supporters of the functional concept distinguish dogma, technology, philosophy and sociology of law as relatively separate elements. Thus, they recognize dogma as a relatively independent component of the general theory.

Studying in Russia

The formal legal method of cognition began to stand out in the framework of the philosophical direction. At the end of the 19th century, advanced Russian scientists identified a circle of the most pressing issues. They concerned primarily the understanding of the essence of regulatory material as a regulator of social relations. According to Novgorodtsev, the law should be clarified not only as a fact of public life, but also as a principle of personality. Muromtsev pointed out that dogma, acting as a guide, is part of art, the purpose of which is to study any existing position in the interests of its subsequent implementation in practice. The formal legal method does not seek to penetrate deep into the phenomena. He describes, classifies, summarizes the definitions of various facts on the basis of systemicity. As a result, rules and interpretations are formed that guide judicial practice. formally legal method of legal science

Modern realities

Currently, the formal legal method is considered as a way of processing positive regulatory material, as the basis of technology. In a broad sense, the latter is identified with dogma as a whole. It is studied as part of a general theoretical concept along with sociology and philosophy. In the narrow sense, technology is a complex of means, techniques, tools of one of the areas of normative activity: legislative, interpretative, contractual and so on.

Application features

The formal legal method is used because state-regulatory phenomena differ in a bilateral structure. Each of them has its own internal organization. The formal legal method ensures the integrity of the studied phenomenon, its elements, a certain order and the relationship between the components. On the other hand, each object acts as part of a superstructure. The state is an element of the political, law is normative, its industry is the legal system. The dogmatic approach is aimed at revealing the principles characterizing the structural nature of the institute under study. In the process of creating a legislative framework, they may be subject to change. There is a correlation of principles in accordance with the will of the rulemaker. Moreover, the latter does not always coincide with social interest. Using a formal legal approach, it is important to identify the relationships of elements that give the system integrity and unity. In particular, in the process of analyzing the state and the legal system, hierarchical interactions are established (subordination, subordination), coordination, etc. formally legal method refers to methods

Using regulatory constructs

Representatives of dogma were based on positivist epistemology and limited themselves to a formal and logical study of legal material, primarily analyzing legal models.In general terms, a normative construction is understood as a way of studying aimed at reversing discipline into a connected system of precise definitions and concepts. It is a kind of model construction of duties, rights, responsibilities, their standard schemes, which are clothed with legal material. At the same time, the normative construction can be successfully applied only with a clear understanding of the principles underlying the legislative provisions for a specific period, and the constant verification of generalizations. Acting as a means of formalizing legal requirements and building a legislative text, it is part of dogma. This is due to the fact that the design reveals the essence and structures the norms.

Sources

The legal construction finds expression in them. By sources we mean in a general sense officially created / published or authorized texts containing norms. From it comes information about a particular situation. An official text that does not contain a norm, but only defines duties and rights for specific entities, as a rule, is not considered a source. Moreover, it is recognized as “arising” from it. For example, a court verdict is an act of the exercise of law. Meanwhile, in some cases, a non-normative text can also act as a source. In the absence of the necessary legislative provision, such an act may establish the duties and rights of specific entities. However, this situation is typical for countries with a poorly developed regulatory system. formally legal research method is

The role of doctrine

For quite a long time, it acted as the main, and sometimes the main source of law in various systems. Today, her role is also important in the process of establishing and applying positive norms. In some modern systems, it is recognized as a source of existing law. Its specificity in this context lies in the fact that it does not appear as a result of the practical work of government agencies or specific social groups. The doctrine with this approach is expressed in the form of principles, judgments, constructions, ideas, provisions in judicial decisions, contracts, customs. Having a certain power, these elements act as tools for regulating relations in society. formal legal method of knowledge of law

Conclusion

Jurisprudence can realize its goals and be applied for its intended purpose when it formulates provisions that act as axioms within the framework of a specific system of law. Doctrines can become the subject of study and comprehension of a discipline that considers the laws of existence of normative material as the language in which subjects communicate in the face of state power. At the same time, the prevalence of the formal legal approach in theory and practice can provoke semantic limitations in the process of knowing law, since science is built on the basis of a positivistic methodology.


Add a comment
×
×
Are you sure you want to delete the comment?
Delete
×
Reason for complaint

Business

Success stories

Equipment