Scientific legal research as a condition. Methodology of scientific search. Jobs Similar to Legal Science and Legal Research

Doctor of Law, Doctor of Philosophy, Professor of the Department of Humanitarian, Social, Economic and Information-Legal Disciplines of the Academy of the General Prosecutor's Office of the Russian Federation

Annotation:

The article deals with some issues of the structure of the scientific and cognitive process and modern methodology. Methodological criteria are widely represented: determinism, verification, rationalism, historicism, progressivism, objectivity, consistency, experimental validity, criticism. Legal hermeneutics, legal pragmatism, legal positivism, legal postmodernism, legal phenomenology, analytical jurisprudence, legal synergetics are used in modern scientific research, as a result, the main methodological traditions are formed. The author notes the importance of a systematic method for solving complex problems and problems of jurisprudence that are interconnected with each other, and also points to the comprehension of legal phenomena using a methodology that is not limited to a system of methods, but includes value orientations, as well as principles for research in the field of jurisprudence. Attention is drawn to the use of the dialectical method, which includes methods of cognition: abstraction and ascent from the abstract to the concrete, synthesis and analysis.

Keywords:

structure of scientific and cognitive process, subject and object of knowledge, subject of legal knowledge, method, methodology, criteria of modern legal science, legal hermeneutics, legal pragmatism, legal phenomenology, analytical jurisprudence, legal synergetics.

From the understanding of the structure of the scientific and cognitive process on legal issues, the researcher or the strategy of research activity is formed, where the main elements are highlighted. When using the methodological approach, first of all, such elements as the subject and object of cognition are distinguished for understanding reality. Georg Hegel, for example, viewed the method as a tool through which the subject relates to the object. Note that the object of legal knowledge is the legal reality.

The next main element is the subject of legal knowledge, which is formed as a result of highlighting the legal significant aspect of the object of study, which is associated with the formulation of a particular task, but can also be based on the synthesis of different subjects of knowledge.

In a scientific study of jurisprudence, the chosen method (translated from Greek - the path of research) or methods play enough important role, and the methodology of legal science is considered, on the one hand, as a set of methods for the scientific study of law, and on the other hand, it is understood as the doctrine of the scientific method in the form general theory. The methodology of jurisprudence is a system of signs, approaches and methods of scientific study of legal phenomena with the aim of further knowledge of law for further improvement of the legal system.

In the work "Philosophy and History of Science" V.V. Ilyin singled out signs of science in general, such as progressivism; truth; criticism; logical organization; experimental validity. According to a number of scientists, for example, V.M. Raw, the listed features are also inherent in jurisprudence. Note that if we consider modern legal science as a social phenomenon, then we can highlight some features in modern methodology, that is, criteria:

Determinism as a recognition of the causality of legal phenomena and processes.
Verification, that is, empirical confirmation in jurisprudence of theoretical positions.
Rationalism, as the main feature of scientific knowledge, developed by representatives of neopositivism. Currently, it is often used by Russian scientists, but in different senses, since there is no single approach to the content of this concept.
Historicism proceeds from the fact that law is a historical phenomenon. Thanks to this criterion, the specifics of a particular legal phenomenon and the dynamics of its development are studied.
Progressivism to update the conceptual arsenal in legal science, which is due to external and internal reasons. Jurisprudence reflects political and legal realities, improves in accordance with them in the direction of creating new scientific knowledge and develops, moving from a descriptive stage to explaining the essence of legal processes and phenomena. The further development of legal science and, at the same time, the rule of law in Russia on issues of legal understanding will lead to the progressive development of jurisprudence.
Objectivity in jurisprudence is understood as truth in laws and normative legal acts to establish the true will of the legislator. At the level of theoretical knowledge of law, development and patterns of development are taken into account, and the scientific value in legal theory consists in predicting development paths when improving legislation and its application in practice. Existing legal doctrines consider the real legal system as a subject. Recall the history of the science of law, G. Hegel, for example, considered the subject of the process of the universal spirit in law, based on Prussian law.
The logic of scientific knowledge in jurisprudence is expressed in accordance with the principle of sufficient reason, in which each thought is justified by proven provisions. Logical sequence means the definition of the true position, its explanation, as well as the obligatory conclusions that follow from the put forward position when using scientific arguments. In a scientific study of jurisprudence, in particular, the methods of correct thinking are used, i.e. logics. Analogy, hypothesis, induction, deduction are the main methods of logic, and the laws of logic are the first law - identities, the second law - contradictions, the third law - the excluded third and the fourth law - sufficient reason. Scientific research cannot contain contradictions and is consistent with the laws and principles of jurisprudence. If there are logical contradictions in scientific research, then this is considered a logical error or a defect in thinking and is criticized. Logical criteria are supplemented by experimental validity.
The experimental validity of legal science is embodied in a consistent and constant systematic study and analysis of legislation, and on the application of law. Experienced validity is needed to distinguish a false judgment from a true one, since it is not always possible to do this only with the help of logical means.
Criticism in jurisprudence is understood as a process of testing the reliability of scientific provisions in the area under consideration. Most often, the new provision is in conflict with previously known studies, it is necessary to recognize the inconsistency of new or old legal knowledge, using criticism. Criticism is carried out between representatives of the same legal doctrine (when private issues are criticized more often of a subjective nature, but the main provisions of the legal doctrine are not criticized), or between supporters of different legal doctrines (when the fundamental provisions of legal doctrines are criticized).

In modern scientific research, legal hermeneutics, legal pragmatism, legal positivism, legal postmodernism, legal phenomenology, analytical jurisprudence, legal synergetics, etc. are increasingly used in the field of jurisprudence, as a result, the main methodological traditions are formed.

Let us form an idea of modern research in the field of law, where legal hermeneutics is used as a system of rules and a technique for interpreting legal norms that determines the semantic aspects of law. Note that Filippova S.Yew. in the article "Company Law of Russia" (2016, Statute) argues that legal hermeneutics is aimed at understanding the legal text and its interpretation, based on the needs that can be satisfied at the time of interpretation with its help.

It is important to note that legal pragmatism considers law in action and is relevant for the study of subjective and objective reasons when interpreting legal terms in describing evaluative-referential words, where there is a close connection between subject and evaluative meanings. In the article "Pragmatic properties of legal terms" K.G. Saltykov gives an example from the criminal law sphere, using the term "accomplice". There is a list of complicity actions, but, characterizing the actions of an accomplice, some scientists use evaluative categories, indicating that "assistance consists in helping others. The accomplice acts" on help, "on the hook" .

Legal positivism points to law as a legal fact, and legal postmodernism considers law as a structure “given by the discourse of power,” V.V. Lazarev, M.V. Zakharova and others. A special place in the countries of the continental European legal tradition is occupied by legal positivism, which determined Western European legal thought. Scholars conditionally divide legal positivism into etatic, sociological, and anthropological, but it is the etatic understanding of positivism that presupposes perceiving law as a product of state will. legal positivism in modern Russia expressed in the following senses: firstly, in the form of applied developments to ensure legal practice; secondly, as a study of specific law in the legal system.

Modern legal positivism is related to two types of developments:

Applied developments of the current legislation of positive law (formulation and construction of a legal text, legal document flow, creation of a system of legislation, procedures for legal practice, etc.) (1).
Comprehension of law in the representations of the dogma of law.

The concept of "dogma of law" is included in legal circulation. If we turn to theoretical developments on this issue, then S.S. Alekseev considers under the dogma of law "a specific subject of legal knowledge, including laws, legal norms, laws, precedents, legal customs, isolated in accordance with the needs of legal practice as the basis for resolving legal cases" (2).

The applied legal phenomenology in modern research focuses on the structures of law. This method reveals the meaning of legal reality, which is determined by the rules of law and expressed by legal relations.

In analytical jurisprudence, the rules of law are the central link. Understanding a particular legal form provides knowledge of the legal reality based on the basic elements in the system, where the legal basic elements are the legal norms of a particular branch of law, both in the branch and in the general system of Russian law, which are interconnected, which determines the system property rights. V.M. Zhuykov rightly notes that the importance of the system of law is undeniable as an initial requirement in finding the necessary norm for its application to specific legal situations and facts.

Legal synergetics involves new phenomena of political life, social practice, thereby expanding the object of the science of law. The natural environment of law is conditioned by synergistic determination and belongs to a type of causality that has features, for example, the sphere of action is reality that experiences different influences, etc., which K.E. Sigalov in his scientific article"Synergistic Organization of Law". S.Yu. Filippova also claims in scientific publications that when analyzing legal activity, if we consider such activity as an open non-linear system with self-regulation and openness, the provisions of synergetics in the legal field are manifested. She believes that “the organization of the legal goals of subjects forms from them a group of persons united by an organized legal goal, representing, by virtue of this, a system that is subject to all the rules for the development of systems” .

For the organization of research work, it is important to choose and be able to apply scientific methods that represent a certain system of norms and principles necessary for use in scientific practice.

Let us pay attention to the use of the dialectical method (including methods of cognition - abstraction and ascent from the abstract to the concrete, synthesis and analysis), used in scientific research, including in jurisprudence. This method is modern, since with the help of it a legal phenomenon is considered comprehensively and comprehensively, which makes it possible to evaluate both quantitatively and qualitatively, as well as to determine the dependence of the form of a phenomenon on its essence, etc.

Modern scientific research in jurisprudence cannot do without a systematic method, which is necessary for solving complex problems and problems that are interconnected with each other. But the comprehension of legal phenomena with the help of methodology is not limited to using a system of methods, but includes value orientations (the need for them especially actualizes this side of the methodology) or approaches, as well as principles for ensuring scientific research in the field of jurisprudence. In modern science, two main approaches have been developed: the first is materialistic (legal phenomena are derivatives of the technological and economic spheres of public life) and the second is idealistic (assuming that the basis of legal phenomena is ideal motives or goals, and possibly human attitudes). A civilizational approach is spreading, including the theory of the development of civilization in stages (within the framework of a single world-historical process) and the theory of local civilizations, based on the fact that historically established communities occupy a certain territory and have certain features of legal, social and economic development.

Interdisciplinary methods are actively used in scientific research on jurisprudence. For example, sociological, based on the analysis of statistical data, questioning, etc., that is, on the basis of specific sociological facts. The statistical method is used for quantitative characteristics (for example, the number of crimes, etc.).

Conclusions: firstly, in modern scientific knowledge scientific method in jurisprudence it has content, including value and worldview elements; secondly, the theory is considered the basis of the method in law (theory is a model of the reality of law, and the method is the installation of cognition of the actual law from this model); thirdly, in scientific research, consistency is important, since the connections of a separate legal phenomenon with different branches of law, with norms and institutions that provide a mechanism for legal regulation and functioning, which determines the effectiveness of law, are revealed and fixed. Any research cannot be limited, for example, in civil procedural law only by civil procedural norms and legal relations.

Sigalov K.E. Bifurcation in law // History of State and Law. 2012. #10.

Sigalov K.E. Synergetic organization of law: theory and reality // History of State and Law. 2011. No. 19.

Syrykh V.V. History and methodology of legal science. M., 2012.

Syrykh V.M. Materialistic theory of law: In 3 vols. M., 2011.

Filippova S.Yu. Instrumental approach in the science of private law. M.: Statute, 2013.

Filippova S.Yu. Russian corporate law. M.: Statut, 2016. // SPS "ConsultantPlus", 2017.

Funds - material and non-material "tools" for collecting, processing, analyzing and summarizing information.

General scientific means. Researchers began to highlight this type of funds in the 20th century. in connection with the emergence of the so-called metascientific areas, represented, for example, as general systems theory, modeling theory, general activity theory, etc. However, according to the principle, this type of means also includes mathematical methods research, and all sorts of logic. For jurisprudence, this level is represented by dialectical, formal and other logics, structural-functional and genetic analysis, etc..Through these research tools, jurisprudence correlates itself with the current state of scientific thinking, for example, through the methods of formalization, idealization, modeling, etc. In the method of jurisprudence, this is a block of procedures inherent in scientific thinking in general, expressing its general nature and specificity..Metascientific research tools when working with subject legal issues can act either as general principles and rules of scientific activity, or as "empty" research forms filled in the process of cognition with specific legal content. Therefore, at this level, legal science actualizes, of course, not all procedures and methods of scientific thinking, but only those that “fit” into the general structure of its method and are adequate to the nature of the object under study..

In the humanitarian and social fields philosophical research tools not only set the strategies for the development of sciences, current fields of research, focuses of categorical systems, value bases, but also form the basic ideas that reveal the essence of certain phenomena. So, for legal science it is humanization, person, personality, responsibility, justice, etc.

Special legal meansprocedures, techniques and forms of research activity, characteristic only for jurisprudence. In the literature, this level is usually distinguished the special legal method, the method of interpretations and the method of comparative law. This level expresses the degree of normative organization of the cognitive process within the framework of a given science, associated with the level of systemic organization of its subject. On the other hand, the more complex, diverse and "sophisticated" the methods, procedures and forms of research that belong to a given science, the more complex its subject is organized.. feature methodological means of this block is their subject "content" in comparison with general scientific operations and procedures.

Marxism - dialectical method of constructing the subject of research. The leading link in the process of such a construction is the allocation of a unit of analysis by abstracting the "simple beginning", the "cell" and further tracking the transformation of the "cell" into a unit, which is a "molecule" - the carrier of the main properties inherent in the integral subject of psychological research. One of the aspects construction of the subject of research is highlighting the elements that form the structure of such a subject. Accordingly, legal science appears as a set of scientific areas that study various elements of law. At certain moments in the development of society, certain elements of law acquire special significance for the dominant discourse, as a result of which scientists and politicians take them as the “center of the structure” and convince others of this through the “theory of law”.

The allocation of a separate object and a separate subject of research in legal science has one of the reasons for the plurality of legal science, the need to explain the fact that each of the legal sciences has its own special subject of study.The role of any science of law in the life of society and its place among other legal sciences is determined by the subject of study, that is, the range of problems studied, the impact of the latter on social life. Legal reality is a kind of integral "organism", the individual organs and functions of which are studied by different branches of legal or other social science. At the same time, the legal reality itself is so complex and large-scale that it cannot be covered by the subject (object) of any one of the legal sciences.

44. Fundamental and applied research of law.

Basic Research- experimental or theoretical activity aimed at obtaining new knowledge about the basic laws of the structure, functioning and development of man, society, the environment. The purpose of fundamental research is to reveal new connections between phenomena, to learn the patterns of development of nature and society in relation to their specific use.

Applied Research-research aimed primarily at applying new knowledge to achieve practical goals and solve specific problems, including those of commercial importance.

General orientation culture ancient rome on utilitarian purposes and values causes the promotion of applied knowledge. The connection between legal practice and legal theory was the most direct. Therefore, Roman jurisprudence was predominantly an applied science. In the Middle Ages, jurisprudence acquires the status of an applied branch of theology; accordingly, legal discourse is intertwined with theological.

In their direct relation to practice, all legal sciences should be divided into fundamental (theory of state and law; history of state and law; history of political and legal doctrines) and applied (forensic science; forensic medicine; legal statistics; legal psychology; forensic psychiatry; forensic accounting and etc.). By the same principle, it is possible to subdivide the individual theories that make up this or that science.

Purpose of fundamental research- theoretical comprehension of deep processes, patterns of emergence, organization and functioning of legal phenomena, regardless of their immediate and direct use in specific practical activities. Historical-theoretical (or fundamental) sciences provide knowledge about the development and features of the state and law in general, regardless of specific states or law in force in a particular territory. Fundamental sciences contain generalized knowledge about the state and law. On the basis of this knowledge, a conceptual apparatus and a system of branch and other legal sciences are developed.

Applied sciences (theories) are more focused on the immediate solution of special practical issues. Through them, the results of fundamental research are mainly implemented in practice. Applied sciences do not study any branches of law, they are not directly related to the study of certain legal norms. However they study phenomena related to law, while using knowledge not only from the field of jurisprudence, but also from the field of other sciences(medicine, chemistry, statistics, etc.). These sciences stand at the intersection of legal and non-legal sciences..

Fundamental research in the field of law is the key to improving applied scientific research and scientific and expert activities.

45. The problem of the correlation of methodological, theoretical and applied knowledge in jurisprudence.

In the most general sense the problem of interaction between legal science and practice boils down to the fact that theoretical research is designed to meet the needs of practice, be based on its materials, and practice, in turn, should be based on evidence-based recommendations and conclusions.Legal science is called upon to guide the organizational and practical activities of various subjects, to study and correct the emerging personal and socio-legal experience, contribute to the development and implementation of legal policy in various areas of public life. Science develops the methodology and methodology of legal knowledge, a system of special principles, techniques, means, methods and rules that are used not only in theoretical research, but also in organizational and practical activities.

Factual material forms an important basis to describe, explain, generalize, systematize, put forward hypotheses and establish trends in the development of the studied phenomena, to develop concepts and create theoretical structures, formulate scientific recommendations and proposals.Legal practice as a relatively independent variety of socio-historical practice acts as one of the most important criteria for the truth, value and effectiveness of scientific research. The viability of certain recommendations and conclusions, their reliability or fallacy, usefulness or harmfulness are tested in practice.

The criterion of practice, of course, cannot be absolutized. He can never fully confirm or refute the relevant theoretical propositions and conclusions., since any practice is constantly changing and developing, representing an internally contradictory process (its result), due to natural and social, objective and subjective, normative and other factors of reality.

The study of legal practice takes place at the theoretical and empirical levels. Empirical knowledge usually directed at certain aspects of practice and is based on the observation of facts, their classification, primary generalizations and descriptions of experimental data. Theoretical study associated with the development and improvement of the conceptual apparatus, a deep and comprehensive study of the essence of phenomena and processes, the establishment of patterns of development of legal practice. If at the empirical level the leading side is sensory knowledge, then at the theoretical level it is rational, associated with the creative synthesis of concepts and categories.

Both levels of study of practice are inherent in the general theory of law and specific legal sciences. However, the ratio of theoretical and empirical links in them is not the same. The level, as well as the scope of theoretical generalizations in the sectoral and applied sciences, is much lower and narrower than in the general theory of law, since they explore only strictly defined (conditioned by their subject matter) aspects, elements and processes of legal reality. At the same time, branch and applied sciences can rise to such a level of abstraction in the study of individual problems that sometimes they go far beyond the issues they study, reaching the general theoretical level of generalizations. In practice, theoretical concepts and categories, constructions and concepts are widely used.. The study of the nature of legal practice, its content and form, functions and patterns of development, the mechanism of succession and other issues is aimed at increasing the efficiency and value of legal practice in the legal system of society. This knowledge constitutes theoretical basis practical activities. Scientific thinking is thus a necessary and important element of practice.

In order to improve the efficiency of legal science it is necessary to create a clear organizational and legal mechanism for introducing the results of theoretical research into specific practice. The development of such a mechanism is one of the most important tasks of legal science.

Along with the subject, each science also has its own independent method. If the subject answers the question of what the corresponding science is studying, then its method is a set of techniques, methods by which this subject is studied. The methodology of legal science is the doctrine of how, in what ways and means, with the help of what philosophical principles it is necessary to study state-legal phenomena. Thus, the methodology of legal science is a system of theoretical principles, logical techniques and special research methods determined by the philosophical worldview, which are used to obtain new knowledge that objectively reflects the state-legal reality.

The words of the English philosopher F. Bacon are known that the method of science is like a lantern that illuminates the path of science. Only a properly developed research methodology can lead to positive results of scientific research.

Centuries-old scientific studies of the formation and development of the state and law around the world have generated numerous, sometimes directly opposite, political and legal doctrines and theories, and they are usually based on mismatched methods and techniques of study, and this was one of the reasons for their differences in content. The state and law were studied from non-coinciding and often directly opposite philosophical and methodological positions - materialism and idealism, metaphysics and dialectics.

A number of theorists associated state-legal phenomena with the will of God or the so-called objective mind, others - with the psyche of people, their emotional experiences, others - with the spirit of the people, their customs, mentality. Theories about the state and law as the agreed will of the people, as an agreement between people, about the existence of natural, inalienable rights of the individual, were fashionable and continue to exist today. The ideas about the geographical, natural factor as the basis for the creation of the state and law, about the primacy of national, ethnic, religious characteristics of these social phenomena were also proclaimed and substantiated. Finally, the existence of a state-legal superstructure, the patterns of its development are explained by economic factors, forms of ownership, the level of development of the production of material goods, and the division of society into antagonistic masses.

Scientists also respond differently to questions about the cognizability of all social, including political and legal phenomena. If some are sure that such phenomena, being created by the human will and mind, are completely cognizable, their essence and purpose can be fully disclosed, then the philosophical ideas of agnosticism proceed from the ideas that the human mind is unable to fully comprehend the essence of these phenomena, defend the theory of the primacy of faith over reason, the idealistic "basic idea" over the free will of people.

In domestic legal science, throughout the existence of the Soviet system, the Marxist-Leninist view of the state and law as the only correct one was dominant. The class nature of these social phenomena, their coercive nature, and the conditionality of the economic conditions of the development of society were proclaimed to be immutable truths. Other theoretical ideas were usually rejected as idealistic, not reflecting the interests of progress, the will of working people.

It is obvious that such a situation did not contribute to the development of scientific thought, did not allow the maximum use of the achievements of various theoretical directions, the world experience of jurisprudence. There is no doubt that every serious scientific work, any theoretical thought makes a certain contribution to the treasury of world knowledge, contributes to the progressive development of legal theory.

Nowadays, Russian jurisprudence considers Marxist ideas as one of the directions of theoretical thought, noting both positive features and significant shortcomings in it.

The methodology of science in general and jurisprudence in particular does not stand still. As theoretical research develops and deepens, it is constantly enriched, its techniques and methods are improved, new categories and concepts are introduced into scientific circulation, which ensures the growth of scientific knowledge, deepening ideas about the laws of the political and legal superstructure and the prospects for its improvement.

The method of legal science is, in principle, the same for all branches of jurisprudence. Obviously, the subject of a particular industry, its features leave a certain imprint on the use of theoretical principles, techniques and methods in each of them. Thus, it is obvious that the techniques and methods of research, for example, in the history of the state and law, differ in many respects from the techniques and methods used in criminal law. If in history the comparative method is given paramount importance, then in criminal law more statistical, concrete sociological methods should be used. In the same way, for example, there is an originality in the theoretical principles and specific methods of research used in constitutional and civil law.

However, at its core, the methodology of legal science is fundamentally the same for all its branches, including the theory of state and law, given that all branches of jurisprudence have a single subject of study - law as an independent social phenomenon, the laws of its formation and development, structure, functional and system communications, as well as legal aspects of the public life of society.

The methods used in legal science are diverse. Usually they are divided into three independent groups. This is a philosophical (general worldview) method, as well as general scientific and particular scientific (special) methods.

Being a generalizing category of all sciences, covering the study of all objects of the surrounding reality with a single system of concepts, principles, laws and categories, philosophy acts as a worldview basis for the knowledge of all phenomena of nature and society. It is a kind of key to the study, including the state and law. Only using such dialectical categories as essence and phenomenon, content and form, cause and effect, necessity and chance, possibility and reality, one can correctly and deeply comprehend and analyze the nature of many state-legal phenomena. The general philosophical method - the method of dialectical materialism is used in all sciences, at any stages, stages of scientific research. He proceeds from the fundamental ideas that the world as a whole, including the state and law, is material, exists outside and independently of the will and consciousness of people, i.e. objectively, that the surrounding reality, the laws of its development are accessible to human knowledge, that the content of our knowledge is objectively predetermined by the existence of a real, independent of the consciousness of people of the surrounding world. The materialistic approach determines that the state and law are not self-contained categories, independent of the surrounding world, not something invented by great thinkers and rulers, that their essence is objectively predetermined by the socio-economic structure of society, the level of its material and cultural development.

The essence of the dialectical approach to scientific research, justified by the great German philosopher G. Hegel and developed further by K. Marx and F. Engels, in relation to jurisprudence means that state-legal reality should be studied in close connection and interdependence with other economic, political and spiritual phenomena. life of society (ideology, culture, morality, national relations, religion, the mentality of society, etc.), that the elements of the political and legal superstructure do not stand still, but change all the time, are in in constant motion that the principle of historicism, the constant dynamics of the development of the essence of the state and law, their transition through the gradual accumulation of quantitative changes from one qualitative state to another - these are the necessary laws of human cognitive activity.

Dialectics presupposes a constant struggle between the new and the old, the obsolete and the emerging, the denial of negation as stages in the movement of the elements of nature and society (the present rejects certain elements of the past, and the germs of the future, in turn, deny the unjustified present), the understanding that there is no abstract truth, it always concrete, that the truth of the conclusions of science is verified by practice, that the law of the progressive development of all elements of the reality around us, including the state and law, is the unity and struggle of opposites.

General scientific methods are those that are used in all or many branches of science and apply to all aspects, sections of the relevant science. Among them, the following methods are usually distinguished: logical, historical, system-structural, comparative, methods of specific sociological research.

The logical method is based on the use of logic in the study of state-legal phenomena - the science of laws and forms of thinking. In the process of scientific research, for example, such logical techniques as analysis are used, which is understood as the process of mental decomposition of the whole, in particular the state and law, into its component parts, establishing the nature of the relationship between them, and synthesis - the reunification of the whole from constituent parts elements included in it and interacting with each other (for example, the definition of a legal system consisting of separate branches). Among such techniques, one can also include induction - obtaining generalizing knowledge based on the knowledge of individual (primary) properties, aspects of an object, phenomenon (this is how the concept of its mechanism is determined by characterizing individual organs of the state) and deduction - obtaining knowledge in the process of transition from general judgments to more private, specific (for example, characterization of the constituent parts of a legal norm based on inferences about its general understanding, offenses based on knowledge of the concepts of crime and misdemeanor).

The logical method also uses such methods of formal logic as hypothesis, comparison, abstraction, ascent from the abstract to the concrete and vice versa, analogy, etc.

The historical method boils down to the need to study the main events in the history of a particular state, the legal system, the stages of their formation and development, taking into account the mentality of peoples, their historical traditions, cultural characteristics, religions of individual countries and regions.

The system-structural method proceeds from the fact that each object of knowledge, including in the state-legal sphere, being unified, integral, has an internal structure, is divided into constituent elements, separate parts, and the task of the researcher is to determine them. number, order of organization, connections and interaction between them. Only after this is it possible to fully and comprehensively cognize the object as a holistic formation. At the same time, each object under study is a constituent element of a more general structure (superstructure) and it is necessary to study its place in the superstructure, functional and constructive relations with its other elements. So, in order to study the concept and essence of law as a whole, one should initially investigate its constituent elements - branches, legal institutions, individual norms. In addition, it is important to determine the place of law in the general system of normative regulation of social relations, the relationship with other parts of this system.

In the same way, the mechanism of the state is made up of a certain system of bodies that differ in their functional purpose (legislative, executive, law enforcement, etc.). In turn, the state enters as an integral part of the political system of society along with parties, public associations and other organizations and performs its specific functions in this system.

All branches of jurisprudence, including the theory of state and law, also actively use the comparative method, which is usually understood as the search and discovery of common, special and individual features in a particular political and legal phenomenon, a comparison of state and legal systems, their individual institutions. and other structural components (forms of government, political regime, sources of law, main legal families of the world, etc.) in order to establish similarities and differences between them. The legal literature separately refers to the historical-comparative method, which involves comparing various state and legal institutions at specific stages of historical development.

The widespread use of the comparative method in jurisprudence served as the basis for the creation of a special area of legal scientific research throughout the world - legal comparative studies, which, due to its serious scientific and practical significance, some researchers consider an independent branch of legal science.

Obviously, the active use of the comparative method should not turn into a simple borrowing, a mechanical transfer of the experience of other countries to the political and legal reality of Russia without taking into account its socio-economic, historical, national and cultural characteristics.

Finally, the method of concrete sociological research should also be included among the general scientific methods. With the help of this method, the selection, accumulation, processing and analysis of reliable information about the state of legality in the country, the effectiveness of the work of the legislative and executive structures of power, the practice of the courts and other law enforcement agencies in the application of laws is carried out.

This method involves the use a large number specific research methods. The main ones among them are the analysis of written, primarily official documents, information generalizations, materials of judicial and prosecutorial practice, questioning, testing, organizing interviews, surveys and interviews, various ways of obtaining data on the assessment of the public activities of law enforcement agencies, etc. When using this method actively used mathematical and computer data processing.

Concrete sociological research is aimed at studying the social conditionality of state-legal institutions, the effectiveness of their action, revealing their interaction with other social institutions, and determining the best ways to improve the political and legal mechanism in the country.

With the help of private scientific (special) research methods characteristic of specific branches of scientific knowledge, it is possible to achieve a certain deepening of knowledge of state-legal phenomena. They enrich the general and general scientific methods, concretizing them in relation to the peculiarities of the study of political and legal reality. Among them, the following most important types can be distinguished:

1) the method of social experiment - the organization of a practical test of the action on a specific territory or in a limited period of time of new, drafted norms, an updated regulatory system to determine the appropriateness and effectiveness of the proposed measures. It was used, for example, to test the effectiveness of the creation of a jury trial in the country, the introduction of free economic zones with preferential customs and tax regimes;

2) statistical method - system-quantitative methods of obtaining, processing, analyzing and publishing quantitative data on the state and dynamics of development of certain state-legal phenomena.

Among the forms of processing quantitative materials, one can note mass statistical observations, methods of grouping, averages, indices and other methods of summary processing of statistical data and their analysis.

Statistical analysis is especially effective in those areas of state and legal life that are characterized by mass character, stable nature and repetition (the fight against crime, taking into account public opinion about the current legislation and the practice of its application, the law-making process, etc.). Its goal is the establishment of general and stable quantitative indicators, the exclusion of everything random, secondary;

3) modeling method - the study of state-legal categories (norms, institutions, functions, processes) using the creation of models, i.e. ideal reproduction in the mind of objectively existing objects to be studied. It can exist as an independent method, as well as be included in the system of techniques used in the process of specific sociological studies of state-legal phenomena;

4) the mathematical method is associated with the use of quantitative and numerical characteristics and is mainly used in forensics, in the production of various kinds of forensic and other legal examinations;

5) a number of theorists distinguish the so-called cybernetic method as an independent method. It basically boils down to using both the technical capabilities of cybernetics, computer technology, and its concepts - direct and feedback, optimality, etc. This method is used to develop automated systems for managing, receiving, processing, storing and searching for legal information, determining the effectiveness of legal regulation, systematic accounting of regulations, etc. As you can see, the methods of scientific knowledge of the state and law are diverse, and all of them together form an integral systemic formation, called the general method of legal science. All methods are closely interconnected, mutually complement each other, and only in the aggregate, close interaction can successfully and effectively solve the theoretical problems of the state and law.

The form of existence and development of science is scientific research. In Art. 2 of the Federal Law of the Russian Federation of August 23, 1996 "On Science and State Scientific and Technical Policy" the following definition is given: scientific (research) activity - is an activity aimed at obtaining and applying new knowledge.

In the general case, scientific research is usually understood as an activity aimed at a comprehensive study of an object, process or phenomenon, their structure and relationships, as well as obtaining and putting into practice useful results for a person. Any scientific research must have its own subject and object, which define the area of research.

object scientific research is a material or ideal system, and as subject maybe the structure of this system, the patterns of interaction and development of its elements, etc.

Scientific research is goal-oriented, so each researcher must clearly formulate the goal of his research. The purpose of scientific research is the projected result of the research work. This can be a comprehensive study of a process or phenomenon, connections and relationships using the principles and methods of knowledge developed in science, as well as obtaining and putting into practice useful results for a person.

Scientific research is classified on various grounds.

By funding source distinguish:

Scientific research budgetary,

Contractual

And unfunded.

Budget research is financed from the budget of the Russian Federation or the budgets of the constituent entities of the Russian Federation. Contractual research is funded by customer organizations under economic contracts. Unfunded research can be carried out at the initiative of a scientist, an individual plan of a teacher.

In normative acts on science, scientific research is divided according to the intended purpose into:

fundamental,

Applied.

The Federal Law of August 23, 1996 "On Science and State Scientific and Technical Policy" defines the concepts of fundamental and applied scientific research.

Basic scientific research- this is an experimental or theoretical activity aimed at obtaining new knowledge about the basic laws of the structure, functioning and development of a person, society, and the natural environment. For example, studies on the patterns of formation and functioning of the rule of law or on world, regional and Russian economic trends can be attributed to the number of fundamental ones.

Applied Research- these are studies aimed primarily at applying new knowledge to achieve practical goals and solve specific problems. In other words, they are aimed at solving the problems of using scientific knowledge obtained as a result of fundamental research in the practical activities of people. For example, as applied, one can consider works on the methodology for evaluating investment projects, depending on their types, or work related to marketing research.

search engines called scientific research aimed at determining the prospects of working on a topic, finding ways to solve scientific problems.

Development called a study that is aimed at putting into practice the results of specific fundamental and applied research.

According to the timing of the implementation of scientific research can be divided into:

long-term,

Short term

and express research.

Depending on the forms and methods of research, some authors distinguish between experimental, methodical, descriptive, experimental-analytical, historical-biographical research and research of a mixed type.

In the theory of knowledge, there are two levels of research : theoretical and empirical.

Theoretical level research is characterized by the predominance of logical methods of cognition. At this level, the facts obtained are investigated, processed with the help of logical concepts, inferences, laws and other forms of thinking.

Here, the objects under study are mentally analyzed, generalized, their essence, internal connections, laws of development are comprehended. At this level, sensory cognition (empiricism) may be present, but it is subordinate.

The structural components of theoretical knowledge are the problem, hypothesis and theory.

Problem- this is a complex theoretical or practical problem, the methods of solving which are unknown or not fully known. Distinguish between undeveloped problems (pre-problems) and developed ones.

Undeveloped problems are characterized by the following features:

1) they arose on the basis of a certain theory, concept;

2) these are difficult, non-standard tasks;

3) their solution is aimed at eliminating the contradiction that has arisen in cognition;

4) ways to solve the problem are not known. Developed problems have more or less specific indications on how to solve them.

Hypothesis there is an assumption that requires verification and proof about the cause that causes a certain effect, about the structure of the objects under study and the nature of the internal and external connections of structural elements.

A scientific hypothesis must meet the following requirements:

1) relevance, i.e. relevance to the facts on which it relies;

2) testability empirically, comparability with observational or experimental data (with the exception of untestable hypotheses);

3) compatibility with existing scientific knowledge;

4) possessing explanatory power, i.e. a certain number of facts, consequences, confirming it, should be derived from the hypothesis.

The hypothesis from which the greatest number of facts is derived will have greater explanatory power;

5) simplicity, i.e. it should not contain any arbitrary assumptions, subjectivist accretions.

There are descriptive, explanatory and predictive hypotheses.

A descriptive hypothesis is an assumption about the essential properties of objects, the nature of the relationships between the individual elements of the object under study.

An explanatory hypothesis is an assumption about causal relationships.

A predictive hypothesis is an assumption about the trends and regularities in the development of the object of study.

Theory- this is logically organized knowledge, a conceptual system of knowledge that adequately and holistically reflects a certain area of reality.

It has the following properties:

1. Theory is one of the forms of rational mental activity.

2. Theory is an integral system of reliable knowledge.

3. It not only describes the totality of facts, but also explains them, i.e. reveals the origin and development of phenomena and processes, their internal and external connections, causal and other dependencies, etc.

Theories are classified according to the subject of study. On this basis, social, mathematical, physical, chemical, psychological, economic and other theories are distinguished. There are other classifications of theories.

In the modern methodology of science, the following structural elements of the theory are distinguished:

1) initial foundations (concepts, laws, axioms, principles, etc.);

2) an idealized object, i.e. a theoretical model of some part of reality, essential properties and relationships of the studied phenomena and objects;

3) the logic of the theory - a set of certain rules and methods of proof;

4) philosophical attitudes and social values;

5) a set of laws and regulations derived as consequences from this theory.

The structure of the theory is formed by concepts, judgments, laws, scientific positions, teachings, ideas and other elements.

concept- this is a thought that reflects the essential and necessary features of a certain set of objects or phenomena.

Category- a general, fundamental concept that reflects the most essential properties and relationships of objects and phenomena. Categories are philosophical, general scientific and related to a particular branch of science. Examples of categories in legal sciences: law, offense, legal responsibility, state, political system, crime.

scientific term is a word or combination of words denoting a concept used in science.

The set of concepts (terms) that are used in a particular science forms its conceptual apparatus.

Judgment is a thought that affirms or denies something. Principle- this is the guiding idea, the basic starting point of the theory. Principles are theoretical and methodological. At the same time, it is impossible not to take into account the methodological principles of dialectical materialism: to treat reality as an objective reality; to distinguish the essential features of the object under study from the secondary ones; consider objects and phenomena in continuous change, etc.

Axiom- this is a provision that is initial, unprovable and from which other provisions are derived according to established rules. For example, at the present time it is necessary to recognize as axiomatic the statements that there is no crime without an indication of it in the law, ignorance of the law does not exempt from responsibility for its violation, the accused is not obliged to prove his innocence.

Law- this is an objective, essential, internal, necessary and stable connection between phenomena, processes. Laws can be classified on various grounds. So, according to the main spheres of reality, one can single out the laws of nature, society, thinking and cognition; according to the scope of action - universal, general and private.

regularity- this is:

1) the totality of the action of many laws;

2) a system of essential, necessary common ties, each of which constitutes a separate law. So, there are certain patterns of crime movement on a global scale:

1) its absolute and relative growth;

2) backlog social control over her.

Position- a scientific statement, a formulated thought. An example of a scientific position is the statement that the rule of law consists of three elements: hypotheses, dispositions and sanctions.

Idea- this is:

1) a new intuitive explanation of an event or phenomenon;

2) the defining pivotal position in the theory.

Concept is a system of theoretical views united by a scientific idea (scientific ideas). Theoretical concepts determine the existence and content of many legal norms and institutions.

The empirical level of research is characterized by the predominance of sensory cognition (the study of the external world through the senses). At this level, forms of theoretical knowledge are present, but have a subordinate significance.

The interaction of the empirical and theoretical levels of research is that:

1) the totality of facts constitutes the practical basis of the theory or hypothesis;

2) facts can confirm the theory or refute it;

3) a scientific fact is always permeated with theory, since it cannot be formulated without a system of concepts, interpreted without theoretical ideas;

4) empirical research in modern science is predetermined, guided by theory. The structure of the empirical level of research is made up of facts, empirical generalizations and laws (dependencies).

The concept of " fact" is used in several meanings:

1) an objective event, a result related to objective reality (fact of reality) or to the sphere of consciousness and cognition (fact of consciousness);

2) knowledge about any event, phenomenon, the reliability of which is proven (truth);

3) a sentence fixing the knowledge obtained in the course of observations and experiments.

Empirical generalization It is a system of certain scientific facts. For example, as a result of studying criminal cases of a certain category and generalizing investigative and judicial practice, it is possible to identify typical mistakes made by courts in qualifying crimes and imposing criminal penalties on the guilty.

empirical laws reflect regularity in phenomena, stability in relations between observed phenomena. These laws are not theoretical knowledge. Unlike theoretical laws, which reveal the essential connections of reality, empirical laws reflect a more superficial level of dependencies.

Introduction

Chapter 1. Problems of the subject and object of legal science and legal research

Chapter 2. Questions of scientific research methodology in legal science

Conclusion

Bibliography

INTRODUCTION

The relevance of the work.The formation of modern legal science is usually considered mainly as the emergence and movement of legal ideas within the framework of the development of the philosophy of law, as the history of legal doctrines. Legal science, as related to social science, is a field of human activity that studies the state and law as independent, but organically interconnected important spheres of society. Legal science has as its goal: obtaining new objective knowledge about its subject (state and law), systematizing this knowledge, describing, explaining and predicting various state-legal phenomena and processes based on the laws it discovers.

Crisis phenomena in the modern methodology of legal science are noted by many jurists, and not without reason. Quite often there are studies that are descriptive in nature, come down to commenting on legal acts and do not have scientific value. One of the reasons for this negative trend is the lack of ideas about the methodological tools and, consequently, the authors' misunderstanding of how a truly scientific research should be conducted. Many jurists addressed the questions of the methodology of legal research, among which it should be noted V.P. Kazimirchuk, A.N. Gulpe, D.A. Kerimova, N.N. Tarasova, S.V. Lubichankovsky.

YES. Karimov believes that "the fears of some jurists about the" blurring "of the boundaries of the subject of jurisprudence does not have any rational grounds." Such logic leads the researcher to the conclusion that attempts to draw an “absolute dividing line” between the subjects of the social sciences are fruitless, which does not exclude the possibility of determining the subject of a particular science, but means that “the delimitation of the subject of one science from others should go not only along the line of dividing the objects of research, but also by aspects and levels of research in case of coincidence of their objects.

Objective:to study the features of legal science and legal research.

Work object:methodology of legal science.

Subject of work:legal science and legal research.

Work tasks:

1. Analyze the problems of the subject and object of legal science and legal research.

To study the issues of methodology of scientific research in legal science.

Working methods.Theoretical analysis and synthesis of historical, philosophical, legal literature, synthesis, abstraction, generalization.

Theoretical base of the research.The theoretical basis of the study was the work of such scientists as, Alekseev N.N., Baitin M.I., Berzhel Zh.L., Vasiliev A.V., Denisov A.I., Kazimirchuk V.P., Kerimov D.A., Klochkov V.V., Kozlov V. A., Kozhevnikov V.V., Lektorsky V.A., Malakhov V.P., Novitskaya T.E., Smolensky M.B., Syrykh V.M., Tarasov N.N., Ushakov E.V. ., Yudin E.G. and many others.

Work structure.The work is written on 30 sheets of printed text, consists of an introduction, two chapters, a conclusion and a list of references.

CHAPTER 1. PROBLEMS OF THE SUBJECT AND OBJECT OF LEGAL SCIENCE AND LEGAL RESEARCH

Legal science belongs to the field of social sciences, the purpose of which is to describe, explain and predict the processes and phenomena related to human society, occurring in this society.

The significance of legal science is revealed through its tasks and connection with the practice of state-legal life. One of the primary tasks of legal science, the main one in its significance, seems to be the development of problems of the system of legislation, its development. This is due to the increasing role of legal regulation of public relations, which in turn implies the need for constant improvement of legislation.

The subject of law is such an important social phenomenon for the life of society as law as a regulator of relations between people and their collectives, relations between the state and the individual. Legal science studies the stages of the formation and development of law, the social purpose and role in the life of society as a whole and the individual - in particular, the content and direction of improvement of individual components of law (branches, legal institutions, specific norms, etc.). Under the object of a scientific discipline, it is customary to understand that real phenomenon that needs to be comprehensively comprehended, studied, clarified, etc. AT real life there is a state as an organization political power and its mandatory instructions addressed to people and their associations, formalized in the form of laws and other normative acts. All this is reality, and it requires study, research, clarification, etc. It is this reality in the form of the state and the legal system for managing social processes created by it that is the object of jurisprudence.

The problem of a more detailed clarification of the object of legal science arises to a greater extent due to the fact that in the legal literature (contrary to logically justified expectations) jurisprudence has already been declared a science of freedom. “Jurisprudence is the science of freedom,” V.S. Nersesyants in his recent works. However, the definition "Jurisprudence is the science of freedom" does not yet specifically testify to anything. As you know, there is no consensus on the relationship between the object and the subject of knowledge in the theory of state and law. The main problem is that not all scientists proceed from the need to separate them. So, Professor R.Z. Livshits, considering the subject of the theory of law, noted: “The subject of science is the object of its study. To characterize this subject means to show what the given science specifically studies. Another point of view is shared, in particular, by Professor V.M. Raw. He believes that "recognition of the object of the general theory of law as its relatively independent element, different from what is understood as the subject of this science, is of fundamental importance." Most scientists under the subject of the theory of state and law consider the general laws of the emergence, existence and development of state-legal phenomena, and they single out law and the state as objects. At the same time, it is often stipulated that the question of the object of the theory of state and law is debatable and little developed.

The differences between the subject and object of cognition stem from the fact that they refer to different sides of the world cognized by man. The object is that which is known. He is the "body" of cognizable reality, its "flesh", "matter". And the subject is its informational component, through which reality is comprehended. Subject and object are two components of cognizable reality: objective (objective) and subject (informational).

Philosophical self-determination is the process and result of choosing a position, goals and means of self-realization in specific circumstances, the main mechanism for gaining and manifesting inner freedom. The subject and object of knowledge are not identical in scope. The object is wider than the subject, if only because a person, by virtue of his natural abilities, is not able to reflect all aspects of the world around him and their characteristics. He learns only what is available to his consciousness. Outside of cognition, there are many factors of reality that require other means and methods of comprehension, in addition to those that a person is endowed with by nature. The development of science is largely associated with this moment, which is on the path of creating new tools and methods of cognition, with the help of which more and more new layers of the reality around us are comprehended, and the process of cognition itself is lengthened due to the appearance of additional links mediating the relationship between subject and object.

Objective reality consists of objects that, in principle, are not alienated from it and cannot directly move into the ideal sphere, into the sphere of consciousness. We cognize them indirectly, coming into contact with those potentials of information, the carriers of which are objects. These potentials of information are the objects of knowledge. They are directly connected with objects, as if merging with them into one whole, but at the same time they are able to alienate themselves from them, “moving” into the consciousness of the subject. It is important to emphasize that it is not the objects themselves that have this ability to alienate and, at the same time, to incarnate in ideal forms of reflection, but the information potentials they serve as carriers. So, we are not able to remove a tree or a table from the reality around us and transfer them to consciousness in the form in which they exist in it. In the same way, such objects as the state and law are inaccessible to consciousness. They, like other elements of objective reality, become accessible to consciousness only in the process of cognition mediated by information that serves as a conductor of connections between the ideal sphere of a person and the world around him.

The purpose of science is the knowledge of the laws of development of nature and society and the impact on nature based on the use of knowledge to obtain results useful to society. Until the relevant laws are discovered, a person can only describe phenomena, collect, systematize facts, but he cannot explain or predict anything.

Cognition of the surrounding reality is possible for two main reasons. Firstly, because the objective reality is the carrier of information potentials about objects. Secondly, because a person is able to “remove” these potentials, turning them into ideal forms of reflection that consciousness operates with. The named abilities of objects and subjects to their informational interaction form the sphere of knowledge as a reality of direct conjugation of consciousness with the world around us.

Thanks to this reality, reality is to a certain extent accessible and open to us. All of the above applies to such objects of knowledge of theoretical jurisprudence as the state and law. They are phenomena of an objective order and outside consciousness. When we reason, theorize about them, we operate not with the objects themselves, but with concepts, ideal forms of their reflection. In the process of cognition, the potentials of information, the carriers of which are the state and law as objects, are “removed” by consciousness in the form of images, concepts, meanings, concepts, ideal models, structures, etc. In other words, consciousness directly interacts not with the state and law as objects, but with those potentials of information that they carry, i.e. with the state and law as subjects of knowledge.

Unlike the object, the subject of knowledge can be alienated from the object and circulate in the ideal sphere as information. Such alienation leads to the "birth" of concepts that reflect the main characteristics of the state and law. Subsequently, these concepts are used as tools for further knowledge of objects. That is, the state and law, being objects, are also objects of knowledge that mediate the comprehension of the objects themselves. The potentials of information, the carriers of which are the state and law, are reflected by consciousness and exist as factors of ideal being, "live" in it. S.L. Rubinstein noted: “... the state, the political system is an ideology; the state, the political system necessarily include an ideological content, but it cannot be reduced to it. Consciousness, ideas do not exist at all without a material carrier. The political system, the state system is being, a reality, which is the bearer of a certain ideology, certain ideas. But the political system and state system cannot be wholly idealized, reduced to a system of ideas, to an ideology. This aporia of social being extends to being in general, to the concept of being.

The proposed interpretation of the subject and the object allows not only to distinguish between them, but also to consider their integrity as a continuum of knowledge. The concept of "continuum" (continuum) is widespread in science. Its literal translation from Latin means continuity. This term, as a rule, reflects such characteristics as continuity, inseparability of phenomena and processes. In mathematics, this term is used to denote a continuous collection. An example is the designation by this concept of the set of all points of a segment on a line or of all points of a line, which is equivalent to the set of all real numbers. In physics, the term "continuum" means a continuous material medium, "the properties of which change continuously in space."

The introduction of the concept of “cognition continuum” into scientific circulation brings together polar points of view on the subject and object in the theory of state and law. With this approach, the position of Professor L.Z. Livshits and other supporters of the unity of the subject and the object seem to be justified in the part that corresponds to their integrity as a continuum of knowledge. At the same time, supporters of the separation of the subject and the object of cognition are right in that the object and the subject are relatively independent elements of this continuum. An object is something that is known, and an object is its informational component. The continuum of cognition is "built into" the model of information interaction between subject and object: subject - object. The components of such interaction are two vectors of influence:

a) object -> subject -> subject;

b) subject -> subject -> object.

On the one hand, objective reality through the potentials of information affects the consciousness of the subject, giving rise to various ideal forms of its reflection. On the other hand, the subject of cognition, by the direction and stability of his cognitive interests, is active in relation to objective reality, discovering in it the desired information potentials that characterize objects. The marked vectors form two types of continuums and, accordingly, objects, objects of knowledge. In the vector of connections object -> object -> subject, an object-subject continuum of cognition is formed, which is represented by a direct object and an object mediated by it. Here the subject of knowledge is formed by an object that serves as a source of influence on consciousness, a carrier of an impulse of information impact. The subject at the same time relatively passively reflects the information potentials that are "presented" by the object.

Such direct objects are the state and law, when they are considered in accordance with the traditional interpretation as objects of legal knowledge. In the vector under consideration, the impulse of information impact emanating from the object, as it were, blurs the line between the object itself and the subject of knowledge. The subject develops the illusion of their identity. One gets the impression of the immediacy of the contact of consciousness with the object as a part of objective reality, bypassing the subject of knowledge. The subject perceives the information potentials available to him, i.e. object of knowledge as an object. However, the object, as we have seen, is in principle impossible to "transfer" into consciousness, bypassing the object of knowledge. In the considered continuum, the potentials of information, "removed" by the subject from the object, serve as objects of knowledge, which are mediated by objects. This means that the state and law turn out to be both direct objects and indirect objects of legal knowledge at the same time.

The vector of connections subject -> subject -> object forms another, namely the subject-object continuum with the direct subject and the object mediated by it. Here the subject is the potentials of information, the extraction of which from objective reality is directed by the cognitive efforts of the subject. The object in this continuum has a direct character in relation to the subject, and the object turns out to be an indirect object.

Such connections can be illustrated by the example of the patterns of emergence, development and existence of the state and law, which are usually considered as a subject of knowledge.

But, being such, at the same time they cannot but be objects, i.e. part of the objective reality, on the knowledge of which the efforts of the researcher are directed. Otherwise, i.e. if these patterns do not relate to objective reality, there is no point in talking about their scientific knowledge at all. Science is not interested in fantasies, but in objectively existing patterns. Other than the interests of science.

Consequently, the regularities that we are talking about in relation to the subject-object continuum turn out to be both objects and objects of cognition. As objects, they are directly connected with the source of the impulse of cognition (the subject), and as objects, in the process of their comprehension, they are mediated by the object. Therefore, within the framework of the vector under consideration, it is appropriate to call these regularities direct objects and indirect objects. Their traditional interpretation only as objects of knowledge is associated with the same illusion of the identity of the object and the object, which was mentioned above.

An analysis of two vectors and their corresponding continuums requires a statement that in each of them the state and law, the laws of their emergence, development and existence turn out to be both objects and objects. Moreover, this is in conditions when, for methodological purposes, we analyze each continuum of knowledge independently of the other. But the learning process is complex. It cannot be reduced to one vector of influence. In fact, the identified two vectors and the two continuums of cognition corresponding to them are in constant interaction, during which direct objects and objects become mediated, and mediated ones become direct.

In particular, considering the state as a direct object, we voluntarily or involuntarily get involved in the formation of the object of its knowledge. When we define the regularities of the emergence, development and existence of the state and law as immediate objects, we are forced to reckon with them as objects. In other words, both the named regularities and the state with the right turn out to be not only objects and objects. They can represent their different types, i.e. to be as direct and as mediated objects and objects. And this means that the line between them, if not completely erased, then at least becomes difficult to discern. Apparently, different approaches are needed to distinguish between them. In particular, they can be distinguished on the basis of systems approach, allowing to allocate system-forming factors. Under them "understand all the phenomena, forces, things, connections and relationships that lead to the formation of a system." PC. Anokhin considered the search and formulation of system-forming factors to be obligatory "for all types and directions of a systematic approach."

If we consider legal knowledge as a system, then such factors should include, in particular, those objects and objects that form, constitute the volume, boundaries of such knowledge.

The state and law meet these requirements. Each of them is a backbone or main continuum of legal knowledge, including both the subject and the object. At the same time, the laws of the emergence, development and existence of the state and law in the analyzed context turn out to be derivative continuums of legal knowledge, which assumes them as both objects and objects of knowledge. The derivative nature of these regularities follows from the presence and interpretation of the main, backbone continuums. So, the range of those phenomena that will be included in the scope of legal knowledge depends on the type of understanding of law. If for positivism there is no such thing as a non-legal law, then for the school of natural law its existence is beyond doubt.

In addition to the types noted above, additional continuums of legal knowledge should be distinguished. In their quality are those phenomena and potentials of knowledge about them, which serve to clarify the basic and derivative continuums (subjects and objects) of knowledge. In this regard, it seems to us that, on the whole, the positions of Professor A.B. Vengerov and Professor V.M. Raw, which expand the boundaries of the subject of knowledge of the theory of state and law beyond the general laws of the emergence, existence and development of the state and law, state and legal phenomena. In particular, Professor A.B. Vengerov sees in the subject of knowledge of the theory of law "some social phenomena that are organically related to law as an integral social institution". It also includes in the subject of the theory of state and law organically related to the state and law accompanying phenomena and processes.

Professor V.M. Syrykh also considers the object and subject of knowledge in the theory of state and law beyond their traditional understanding. He understands the object as "the totality of the mechanism of the state, the rules of law, legal, political, and social practice, insofar as it affects political and legal phenomena and processes." The traditional understanding of the subject of the theory of state and law, Professor V.M. Syrykh expands, supplementing it with socio-economic, political, moral and other patterns that determine the development and functioning of the state and law, without knowledge of which it is impossible to reveal the subject of the theory of state and law. The factors referred to by Professor A.B. Vengerov and Professor V.M. Raw as about additional elements that make up the object and subject of the theory of state and law, it is reasonable to refer to additional continuums of knowledge of this science. It seems that the authors of the above judgments themselves, by editing the definitions of the subject matter of the theory of state and law, put precisely this meaning into them. Scientists in the first place in the subject put the laws of the emergence, existence and development of the state and law, state and legal phenomena. In addition, A.B. Vengerov highlights these regularities in bold type, emphasizing their decisive importance in the subject of science.

With a clear distinction between the object and subject of legal science, the problem of multi-aspect legal research and questions of the subject certainty of jurisprudence acquire other meanings and move from the plan of ontological statements about law to the area of epistemological characteristics of legal science, the methodology of cognition of law. This allows us to pay attention to the methodological problems of legal science related to the correlation of diverse ideas about law, their synthesis within a single theoretical system. With this view, the appeal to various aspects of the study of law, on the one hand, means expanding the subject of legal science, and on the other hand, it can create problems of correlation of new ideas about law with established concepts and categories that shape a certain concept of law. In principle, the expansion of the subject of legal science, including through the study of various aspects of law, can be considered one of the characteristics of its evolution. However, it is necessary to distinguish between applied research and development carried out by lawyers in the course of solving certain particular problems and their attempts to look to the right from different angles in order to deepen knowledge about it as a whole. In the first context, the appeal to various kinds of "non-legal" issues is mainly associated with the solution of specific research or practical problems of jurisprudence.

legal legal science research

CHAPTER 2. QUESTIONS OF METHODOLOGY OF SCIENTIFIC RESEARCH IN LEGAL SCIENCE

In modern legal literature, the most common approaches to understanding the method of cognition of legal phenomena can be represented in the following provisions. The method is:

-a specific theoretical or practical technique, an operation aimed at understanding legal phenomena. It is in this semantic context that the concept of "method" is used in relation to such means of knowledge as induction, comparison, observation, experiment, modeling;

-a set of theoretical and (or) practical methods and means of knowing the subject of legal science, expressing the specifics of the methodology of a particular study, its special path;

-a certain scientific theory, taken in the service role of its concepts and laws in relation to a more specific level of scientific research;

-a set of scientific theories, principles, techniques and means of cognition of the subject of science as a whole;

-the method of science is an integrative holistic phenomenon.

A systematic approach in legal research is a direction of research methodology, which is based on the consideration of an object as an integral set of elements in the totality of relations and connections between them, that is, consideration of an object as a system.

The systematic approach was a certain stage in the development of methods of cognition, research and design, methods of describing and explaining social, natural or artificially created objects. Despite the fact that the term "system approach" is widely used in the scientific literature, it has not yet developed a universal and at the same time sufficiently effective set of specific means and methods for solving cognitive issues. This is largely due to the fact that the systematic approach is presented as a fundamental methodological orientation, as a point of view from which the object of study is considered (a way of defining the object), as a principle that guides the overall research strategy. Thus, the systems approach is more associated with the formulation of scientific problems than with their solution. But this is not a reason to abandon this approach in scientific research. As E.G. Yudin, “the understanding of the fact that obtaining a significant result directly depends on the initial theoretical position, more precisely, on a principled approach to posing the problem and determining the general ways of moving research thought” takes root in the minds of researchers.

System analysis as a method of legal research. The systems approach, which originated in the middle of the 20th century, laid the foundation for the development of system analysis, which today has outgrown the scope of the method and is perceived by many scientists:

a) as a set of methodological means;

b) as one of the theoretical directions of system research;

c) a way to solve managerial and organizational problems.

However, if such a traditional method as analysis consists in presenting a complex object as a set of simpler elements, then in system analysis the object should be considered as a set of its constituent elements, taking into account their relationship, more precisely, the latter should be perceived as one of the criteria when highlighting one or more other part.

Structural analysis as a method of legal research is one of the aspects of the practical implementation of a systematic approach. The structure of the system is the organization of connections and relationships between the elements of the system, determines the totality of relationships, as well as a set of functions that allow for purposeful activities. If the concept of "system" focuses on the composition of its elements and their holistic nature, then in the concept of "structure" - on their connection, as the basis of the entire organization. The system is dynamic, the content of its elements is constantly changing, and the structure is static. When conducting a structural analysis, it is necessary to identify vertical links and compare them with the ability to coordinate and control. Another aspect of structural analysis is to establish the impact of one element on another. At the same time, it is important to note that the impact can be direct, when it has the form of a subject-subject, and indirect, when one element of the structure affects another through some mechanism.

Functional analysis as a method of legal research. In the scientific literature concerning the consideration of the functions of the object under study, they often talk about the functional approach. N.N. Tarasov writes: "The methodological approach is how law and legal phenomena can be understood in the process of research." If structural analysis is aimed at studying the object itself (internal aspect), then functional analysis aims to study it within a more general system (external aspect). In this case, there is an abstraction from the elements that make up the system, and it is considered as a whole. Functional analysis involves considering an object as a complex of functions performed by it.

Structural-functional analysis as a method of legal research is a synthesis of structural and functional analysis and allows us to consider the functions of each structural unit in relation to the system as a whole. Functional autonomy should be understood as the possibility of the existence of a structural unit when it is separated from the system.

Deviations from the rules of methods do not always lead to great scientific discoveries, and most often to incorrect results. In this sense, constructive refutation of the rules of the existing method of science does not happen every day and can hardly be a mass practice of scientific research. The proportional ratio, relatively speaking, of constructive and non-constructive violations of the method of science, apparently, is different in different periods of the development of science. Any deviations from the method of science remain within the framework of its methodology. The fact is that such “violations” do not concern the denial of methodology as a condition for the scientific nature of research, but only the specific rules of the method and cannot shake the very idea of methodological support for scientific activity. In other words, it is possible to deviate from the rules of the method of a particular science, as historically established and generally accepted at this stage of epistemological attitudes or requirements for research. However, the denial of one method is possible only through the creation of another method, and this, again, is the subject and problem of methodology and confirmation of its necessity in scientific research.

L.A. Morozov, all the variety of methods of legal science is divided into the following groups:

) general philosophical, or philosophical methods;

) private scientific (private, special) methods.

General philosophical methods serve as the basis, the soil on which legal science develops; general scientific methods are those that are used in all or many areas of scientific knowledge (historical, logical, systemic and functional).

General scientific methods are techniques that do not cover all scientific knowledge, but are applied only at its individual stages. General scientific methods include such methods as analysis, synthesis, systemic and functional approaches, the experimental method, the method of historicism, the hermeneutical method, etc.

Private scientific methods are the use by legal science of scientific achievements of technical, natural, related social sciences. This group of methods includes such methods as the method of specific sociological research, modeling, statistical method, method of social and legal experiment, mathematical, cybernetic and synergetic methods.

It is customary to single out legal methods proper - comparative legal and formal legal methods. Actually legal methods, the list of which is very incomplete, constitute an independent group of methods. The comparative legal method consists in comparing state and legal systems, institutions, categories in order to identify similarities or differences between them. The formal legal method is traditional for legal science and constitutes a necessary step in the knowledge of the state and law, since it allows you to study the internal structure of the state and law, their most important properties, classify the main features, define legal concepts and categories, establish methods for interpreting legal norms and acts, systematize state-legal phenomena.

Planning research work is essential for its rational organization. Research organizations and educational institutions develop work plans for the year based on targeted comprehensive programs, long-term scientific and scientific and technical programs, business contracts and research applications submitted by customers.

For example, when planning scientific research of a criminal law, criminal procedure, forensic and criminological nature, research institutions of the Ministry of Internal Affairs, the Ministry of Justice, the Prosecutor General's Office of the Russian Federation, other ministries, committees and services had to take into account the measures contained in the Federal Target Program to strengthen the fight against crime, in special federal target programs devoted, in particular, to the prevention of neglect and juvenile delinquency, counteracting drug abuse and illegal drug trafficking. Similar programs have been adopted by the constituent entities of the Russian Federation. The results of scientific research are evaluated the higher, the higher the scientific nature of the conclusions and generalizations made, the more reliable and effective they are. They should form the basis for new scientific developments.

One of the most important requirements for scientific research is a scientific generalization, which will allow establishing the dependence and connection between the phenomena and processes under study and drawing scientific conclusions. The deeper the findings, the higher the scientific level of the study. The results can be presented in the form of a scientific report, theses, developments, etc. Scientific research is characterized by the use of such forms as hypothesis, theory and model. These forms of scientific research are characteristic of modern science, even from a purely external formal side. In addition, there are also forms of scientific knowledge that differ, say, from ordinary judgments not formally (as, for example, a theory or model), but only functionally. These include: problem; idea; principle; law; guess, etc. .

Mental activity (MD) is a complex of intellectual and communicative processes included in the context of organized collective activity. The scheme and concept of MD arose as a result of many years of searching for ways and means of combining ("configuring") theoretical and methodological ideas about thinking and ideas about activity. The problem was to set and theoretically describe integral units of thinking and activity in which the mechanisms of communication between thinking and speech-language, on the one hand, thinking and action, on the other, speech-language and action, on the third, would be realized.

In the modern period of actualization of the development of domestic legal science of methodological research, approbation of new cognitive techniques, an interdisciplinary research program related to the study of self-organization phenomena (the emergence of stable structures) in highly non-equilibrium systems, denoted by the generalized term "synergetics", is of particular interest. Representatives of legal science are still little familiar with the conceptual structure and methodological means of synergetics, although the relevance and prospects of their use in the cognition of legal phenomena and processes have been noted by a number of specialists. It is necessary not only to further popularize synergetics as a potential methodological resource of jurisprudence, but also to comprehend the real prospects for its use in modern jurisprudence, assess its potential compatibility with the conceptual apparatus and methodological arsenal of legal science, its epistemological possibilities and limits of use. A preliminary scientific examination of the respective method is needed.

To understand the real role of the concepts and laws of synergetics in the knowledge of legal realities, it is important to determine the methodological status of synergetic structures. We are talking, first of all, about the legitimacy of their characterization through the prism of such concepts as "methodology", "method" and " methodological approach". By answering the question of which of them adequately reflects the methodological function of synergetics in legal research, we will achieve something more than simple terminological certainty.

In the works of jurists, as well as representatives of other sciences, there has not been an unambiguous semantic interpretation of the above phenomena and the scientific terms corresponding to them. Among scientists, unity has not been achieved in understanding the status of the methodology of science, and the very concept of “methodology” is interpreted by them inconsistently.

Methodology is understood as philosophy as a whole; a special section of philosophy (theory of knowledge, philosophy of science, etc.); an independent science with its own subject and method; a system of theories that play the role of a guiding principle and means of scientific knowledge; application of the system of scientific principles, techniques and methods of research of the subject of science; system of methods of scientific knowledge; a system of methods and procedures for theoretical and practical activity in unity with the principles underlying it; a set of teachings on the methods of scientific knowledge of phenomena and teachings on the methods of practical use of these phenomena.

At present, interdisciplinary research is considered, first of all, as a problem of research practice, as well as the translation of its results into a system of knowledge, as well as into a practical plane. The main task is to overcome the contradiction noted by I. Kant between the structure of reality, the laws of organization of which are not always known to us, and science, organized by scientific disciplines with basic assumptions, hypotheses and interpretations of information about reality characteristic of each of them. and her organization. It should be clearly understood that any practical task is interdisciplinary in nature, that is, it involves the involvement of specialists from various fields of knowledge to solve problems or implement developments aimed at the long term. Accordingly, representatives of various scientific disciplines, as well as business and public organizations, should be involved in their implementation. This task, although not always in an explicit form, faces participants in interdisciplinary research of any scale.

Research program and project - a unit of scientific knowledge; a set and sequence of theories connected by a continuously developing foundation, a commonality of fundamental ideas and principles. Fundamental research of law is an experimental or theoretical activity aimed at obtaining new knowledge about the basic laws of the structure, functioning and development of society. They are carried out primarily for the purpose of gaining new knowledge about underlying principles or observable facts and are not aimed at achieving a specific practical goal or solving a specific problem. Applied scientific research - research aimed primarily at the application of new knowledge to achieve practical goals and solve specific problems.

One of the most difficult issues at the initial stage of developing a scientific direction in the legal field is the identification of a relevant scientific problem, the assessment of its prospects in terms of potential scientific results. In the field of jurisprudence, additional difficulties arise due to such specific features of this science as the presence of a large number of different schools and directions, a wide range of opinions that arise in this regard, as well as the difficulty in formalizing the legal language. Of course, it would be naive to think that this "problem about a problem" (meta-problem) is easy to solve - the greatest minds of mankind have thought about it. And, nevertheless, as the practice of scientific work shows, there are no uniform criteria for choosing problems that need to be resolved - most often such an assessment occurs through the analysis of scientific controversy in the literature and communication with colleagues. In any case, identifying certain difficulties in solving a certain issue, one should talk about the presence of a problem: when "a person encounters some kind of obstacle that interferes ... he finds himself in a problem situation."

To some extent, this understanding of the problem correlates with the ideas of J. Holton, who distinguishes the thematic structure of scientific activity. The scientist wrote: “The topics that appear in science can be represented as a new dimension ... something like an axis”, that is, a certain direction of interests. In a certain sense, we can consider that a topic in science consists of a set of particular problems and is, so to speak, a super-problem. Problem is a largely subjective concept; it is possible that a certain problem exists only for this particular individual, and most of the scientific community may not consider it a problem. However, for a sufficiently experienced researcher, this circumstance is not a reason for refusing to develop the problem situation identified by him. Finding a relevant scientific problem is a task that requires deep preliminary familiarization with the developments in the field under study.

The study of a large body of bibliography entails difficulties of a technical nature, however, there are no fundamental difficulties in identifying a scientific problem as a subjective obstacle (we emphasize: obstacles without assessing its complexity) - an analysis of the existing scientific controversy and dissertations gives a fairly accurate idea of the cutting edge of the discipline from the point of view in terms of a rough estimate of the number of existing, i.e. actually widely discussed issues. Of course, there are problems that are not obvious, but they are also based on all the previous experience of science, and, therefore, it is possible to come to them by analyzing the bibliography. It should be noted here that at the stage of identifying a problem, it is most often presented to the subject as a pre-problem (an undeveloped problem), the solutions of which are not visible. It is precisely such problems, despite their “undeveloped” name, that are the most interesting in scientific terms, although it is absolutely necessary to clarify the problem, but this is already a certain scientific work studying the problem itself.

The use of logic methods in the process of identifying a problem is absolutely justified. However, it seems that it is difficult to completely formalize the legal problem in this way - it is known that often in logic there is a distraction from the semantic connection between judgments, which, of course, is unacceptable from the point of view of the risk of losing the general semantics of the problem. Nevertheless, it should be recognized that the question of expressing the problems of legal sciences in the language of logic is very important; in particular, in recent decades, a section of logic has arisen that specifically studies questions of law - the logic of norms. Thus, under certain restrictions in the use of formalized languages of logic and mathematics, we come to the conclusion that the discovered legal problem must at least be presented in the form of judgments of a specific "language for special purposes" - the scientific language of a particular subject area, which in legal sciences is close to natural language.

The cognitive situation in science in recent years is characterized by excessive subject diversity and a growing need for information. To a large extent, this state of affairs turned out to be the result of intra- and interdisciplinary competition. It is the competitiveness of scientific disciplines that stimulated the growth of efficiency, diversity and complexity of scientific knowledge and technologies.

The main constraint in the development of legal science is the lack of a scientifically based methodology for effectively predicting social processes (this is a common problem in Russian science, and not only) and, in particular, predicting the consequences of making managerial decisions and various kinds of regulatory legal acts, primarily laws (and This is already a problem of legal science proper).

The absence of this methodology - in the sphere of the legislative process - leads, in particular, to the fact that the lion's share of the laws adopted in our country in recent years by the federal legislator are local changes and additions to existing, moreover, recently adopted laws. The variety of research tools involved in jurisprudence is sometimes associated with multidimensionality, versatility in the study of law, which can be considered, among other things, as evidence of the theoretical maturity of jurisprudence.

Legal science, in all its diversity of official and unofficial branches and specialties, is not only not an exception here, on the contrary, the lack of a general scientific methodology for predicting the consequences of managerial and other decisions, legislative and other legal acts inevitably leads to the defectiveness of these decisions and acts, to the fact that they “start to act exactly the opposite” against the will of the legislator, to the fact that some “nimble guys” adapt them to work exclusively for their own selfish interests as opposed to public ones.

CONCLUSION

Legal science is a system of knowledge about the objective properties of law and the state in their conceptual and legal comprehension and expression, about general and particular laws of the emergence, development and functioning of the state and law in their structural diversity. tvennaya science, which has an applied character.

A science that has the properties of exact sciences.

A science that embodies the virtues of the sciences of thought.

Knowledge of the history of jurisprudence broadens one's horizons, enriches with experience already accumulated in the course of the history of the study of law and legal phenomena, makes it possible to link one's own research with general trends in the development of jurisprudence, and makes it possible to avoid repeating versions already discarded in the course of previous studies. The study of the methodology of legal science is necessary to obtain true knowledge, to plan research, it makes it possible to evaluate the positions expressed in science. The problem of criteria for the scientific nature of knowledge is one of the most relevant for jurisprudence. It occupies a special place in the theory of state and law, which, being by its nature a generalizing science, is called upon to formulate in a theoretical form modern ideas about law and the state, based on cognitive procedures that take into account the specifics of the humanities.

In the last decade and a half, when attempts were made in the domestic science of the theory of state and law to comprehend state-legal phenomena free from ideological attitudes, it turned out that the methodology of legal research does not meet modern ideas about the criteria for the scientific nature of jurisprudence. Two important factors contribute to this. Positive for jurisprudence, the rejection of the use of dialectics as a universal methodology of humanitarian knowledge is accompanied by a paradoxical methodological regression, which manifests itself in the desire to preserve the familiar positivist paradigm of legal research. On the other hand, the crisis of epistemological foundations in the domestic science of the theory of state and law is developing against the backdrop of the modern methodological situation, called postmodernity, when the criteria for the scientific nature of jurisprudence as such have been called into question. Therefore, legal science cannot remain aloof from the discussion of such an important problem as the criteria for its scientific character.

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