Concepts and features of the legal system

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Educational and Scientific Institute of Law and Innovative Education Dnipropetrovsk State University o f Internal Affairs

Concepts and features of the legal system

Maxim Lymarenko 2nd year higher education applicant, Scientific advisor: Nikitina Senior Lecturer

The domestic theory of the state and law examines the legal system through its structure, that is, the internal structure, which is characterized by the interaction of the laws of the respective state and their unification into legal institutions and branches [1, р. 54].

P. Rabinovich understands the system of law as the system of all valid legal norms of a certain state [2, p. 105].

N. Onishchenko, devoting a monographic study to the legal system, offers the following definition of the concept of «legal system» - this is a legal structure determined by the economic and social system, which reflects the internal consistency and unity of legal norms and at the same time their division into relevant branches and institutions [3, p. 31]. legal branche law

Lawyer L. Morozova interprets the legal system as an objectively existing internal structure of law that has developed historically and is determined by the nature of social relations that are regulated [4, p. 273].

In the legal literature, there are also other definitions of the concept of the legal system, but it is always emphasized that it is:

systemic formation, that is, not a simple collection or sum of elements, but a holistic formation endowed with specific properties, connections, and internal structure;

an objective phenomenon, as it is determined by social relations that have developed in society;

due to national, historical, cultural or other social factors;

dynamic, capable of changing its internal organization under the influence of the external environment [4, p. 273].

In general, it should be noted that the term «system» is ambiguous. the explanatory dictionary of the Ukrainian language interprets the term in question as follows: «Order caused by the correct, systematic arrangement and mutual connection of parts of something; form of organization, structure of something (state, political, economic units, institutions, etc.); a set of any elements, units, parts, united by a common feature, purpose; A set of principles that are the basis of a certain teaching; a structure, a structure that is a unity of regularly arranged and functioning parts» [5, p. 85].

The philosophical encyclopedia interprets the system as a set of elements that are in relations and connections with each other, which forms a certain integrity, unity. The first ideas about the system arose in ancient philosophy, which put forward an ontological interpretation of the system as the orderliness and integrity of existence. In ancient Greek philosophy and science (Plato, Aristotle, Stoics, Euclid) the idea of systematic knowledge (integrity of knowledge, axiomatic construction of logic, geometry) was developed.

Perceived from antiquity, ideas about the systemic nature of being developed both in the system-ontological concepts of Spinoza and Leibniz, and in the constructions of scientific systematics of the 17th and 18th centuries, which gravitated towards a natural (rather than teleological) interpretation of the systemic nature of the world (for example, the classification of Ky. Linnaeus) . In modern philosophy and science, the concept of system was used in the study of scientific knowledge; at the same time, the range of proposed solutions was very wide - from the denial of the systemic nature of scientific and theoretical knowledge (Condillac) to the first attempts at philosophical justification and the logical-deductive nature of systems of knowledge (I. Lamberti, etc.) [6, p. 551-552].

If the legal system is understood as its structure, its internal structure, then they mean a certain form of organization of legal norms operating in the state, such an order of their construction, in which the norms of positive (objective) law are in unity, coherence and interrelation. connected and differentiated into institutes and branches. However, as indicated by N. Pyanov, such an approach to understanding the legal system in general allows us to reveal some of its features, but in general it is considered limited. The fact is that the term «system» has another meaning, which corresponds to the philosophical understanding of the system, which is fundamental to the theory of the state and law. A system is not a structure, not the internal structure of anything, but a set of interconnected elements that make up a certain integral formation. The structure is the structure, the internal organization of the system, which is expressed in the connections and relations existing between the elements that make up the system.

Therefore, the concept of «legal system» reveals not so much the structure of positive law (although it too), but the positive law itself, which defines a certain system [7, c. 47]. Although, it should be noted, such an understanding raises the question of the possibility of the existence of the structure of law outside its system and whether phenomena (elements) that go beyond its structural and systemic being can function in law.

The system of law determines the following features of the legal system:

Componentity and multilevel. Any system consists of components (elements, parts, etc.). The phenomenon can be considered at the macro- and macrolevels, as an element of the system of higher or, accordingly, lower orders. Law is no exception, and it consists of relevant components that depend on the concept of legal understanding prevailing in society. For example, the psychological school of law distinguishes intuitive law as a system of imperative-attributive experiences and positive law, which is the result of experiences, projections of the experiences of certain authorities. Sociologists (sociological school of law) consider law not as a self-sufficient system of formalized prescriptions, abstract norms, but as a «living order», which is a system of specific legal relations, as a system of valid norms. «Living law is the internal order of associations of people - the state, family, trading companies, etc.)». Muslim law is not divided into public and private, as in the states of the Romano-Germanic legal family, or into common law and equity, as in the states of the Anglo-Saxon legal family. The system of Muslim law was formed through legal complexes on the topics of religion, family, community, etc.;

Any system, including the right-wing system, is characterized by integrability and organization. The elements that make up the system are interconnected in one way or another and create a single whole.

In philosophy, a distinction is made between summative and organic (organized) systems. In summative systems, the elements that make up the system are in a mechanical, random connection. In organic systems, the connections between elements are of a deeper nature. The elements in such a system are structured and are in strictly defined relationships and dependencies with each other.

The organization of the legal system is precisely expressed in the fact that legal norms and other elements of the legal system are combined into a single whole not mechanically, not by chance, but organically, on the basis of strictly defined connections. therefore, the legal system is not just a unity of legal norms, but an organized, orderly unity characterized by their coherence;

Objectivity. The objectivity of the legal system lies in the fact that it is formed in accordance with objectively existing social relations. The legal system reflects the structure (system) of actually existing social relations, which determine the legal system. L. Zamorska points out that the legal system acts as a model of legal regulation, which has a scientific nature of construction, practical direction and purpose. The scientificity is that the system should be built on the basis of the results of a scientific study of the laws of legal regulation of social relations, that is, an analysis of the objective factors determining social relations and the possibilities of their subjective modification. The practical direction and purpose are expressed in the fact that its functioning is aimed at maintaining internal inconsistencies and optimally regulating social relations of the legislative system [8, p. 48];

Integrity. The legal system is characterized by integrity. it is an integral entity within the boundaries of the entire state, if we are talking about national law, or within the boundaries of relevant entities, for example, the legal system of the European Union. Despite the fact that positive law consists of separate norms, they, being related to each other, form a single system of norms that acts as a coherent entity that constitutes positive law;

Dynamism and self-regulation. As stated above, the legal system is objectively determined by the system of social relations. Modern society is characterized by a significant pace of changes taking place in it. The modern specifics of the development of social systems, including the legal system, of which the legal system is a component, shows that the evolution of society has moved to a new stage of its development - the stage of searching for optimal solutions to global cataclysms, the stage of searching for the «golden mean» between the extremes with the aim of further advancement humanity through the co-evolutionary unity of society and nature, society and the individual. One of the main tasks of sociology is to investigate the phenomenon of social self-organization in a retrospective and prospective analysis by using the idea and methods of synergy in the process of researching the peculiarities of socio-cultural development. All this became a prerequisite for the emergence of qualitatively new theories that reveal the mechanisms and implementation of social laws.

Thus, the ability of the system of law to self-regulate contributes to its stability and stability, at the same time, law is a functioning and constantly updated and developing system. A legal system is a combination of legal elements objectively determined by social relations, national, historical, cultural or other social factors, in which all elements are so closely related to each other that they act in relation to the surrounding conditions and other systems as a single goal characterized by selfregulation and dynamism.

Список використаних джерел

1. Андрусяк Т. Теорія держави і права : навч. посібник. Львів : Фонд «Право для України», 2017. 198 с.

2. Волинка К. Теорія держави і права : навч. посібник. Київ : МАУП, 2014. 238 с.

3. Загальна теорія держави і права : навч. посібник ; за ред. В. В. Копєйчикова. Київ : Юрінком, 2015. 317 с.

4. Загальна теорія держави і права : навч. посібник для вузів. Харків : Право, 2014. 427 с.

5. Кельман М. Загальна теорія держави і права : підруч. для вузів. Київ : Кондор, 2016. 475 с.

6. Кравчук М. Теорія держави і права. Проблеми теорії держави і права : навч. посібник для підгот. до держ. іспитів. 3-є вид., змін. і доп. Тернопіль : Карт-бланш, 2016. 243 с.

7. Лисенков С. Л. Загальна теорія держави і права : навч. посібник. Київ : Юрисконсульт: КНТ, 2014. 355 с.

8. Олійник А., Гусарєв С., Слюсаренко О. Теорія держави і права України : навч. посібник. Київ : Юрінком Інтер, 2014. 174 с.

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