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MINISTRY OF EDUCATION AND SCIENCE OF UKRAINE NATIONAL AVIATION UNIVERSITY

EDUCATIONAL AND RESEARCH INSTITUTE OF LAWDEPARTMENT OF HISTORY AND THEORY OF STATE AND LAW

LECTURES on a subject “Theory of State and Law”

for Field of Study 08 “Law,” Speciality 081 “Law,” Educational Professional Program “Jurisprudence”

Developer:Senior Lecturer O. Myronets Lectures are vieved and approved at the meeting of Department of History and Theory of State and LawMinutes № 13 “29” 08. 2018Head of the department_____________________ I.Borodin

Theme 1. Theory of state and law in the system of legal sciences.

Plan

1. Concept and attributes of legal science.

2. Objects, subject, method, functions of legal science.

3. Jurisprudence as a system of legal sciences.

References:

1. Конституція України: Прийнята Верховною Радою України 28.06.1996

року // Відомості Верховної Ради України. – 1996. – № 30. – Ст.141.

2. Кельман М.С., Мурашин О.Г. Загальна теорія права (з схемами,

кросвордами, тестами): Підручник. – К. Кондор, 2002. – 353 с.

3. Любашиц В.Я., Мордовцев А.Ю., Тимошенко И.В. Теория государства

и права: Учеб. Пособие. – Ростов-на-Дону: МАРТ, 2002. – 512 с.

4. Опорні конспекти з проблем теорії держави і права / Під ред.

М.В.Кравчука – Тернопіль, 2002. – 387 с.

5. Скакун О.Ф. Теорія держави і права: Підручник / Пер. З рос. – Харків:

Консум, 2006. – 656 с.

6. Теорія держави і права. Навч. посібник / Упоряд Л.М. Шестопалова. –

К. Президент, 2006. – 197 с.

7. Загальна теорія держави і права. Підручник для студентів вищих

навчальних заклад / За ред. М.В. Цвіка, В.Д. Ткаченко, О.В. Петришин. –

Харків, 2002. – 583 с.

8. Вступ до теорії правових систем / За заг.ред. О.В. Зайчука,

Н.М. Оніщенко: Монографія. – К.: Видавництво «Юридична думка», 2006. –

432 с.

9. Теорія держави і права. Посібник для підготовки до іспитів / С.М.

Тимченко, Р.А. Калюжний, Н.М. Пархоменко, С.М. Логуша. 3-е вид. – К.: вид.

Паливода А.В. 2007. – 176 с.

10. Теорія держави і права. Навч. посібник. Київ. Правнича єдність

Всеукраїнська Асоціація видавців 2008. – 270 с.

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11. Теорія держави і права. Академічний курс: Підручник: відпов ред.

Зайчук О.В., наук.ред. Оніщенко Н.М. – К.: Юрінком Інтер, 2006. – 657 с.

Content of the lecture

Jurisprudence or legal science is a specialized branch of knowledge in the

field of social science.

Social science is a science about society in general. Jurisprudence is a system

of knowledge in the field of law and state. The term “Legal science” is identical to

the term “jurisprudence.”

It originated in ancient Rome at the end of the IV - in the beginning of the III

century B.C. (Latin jurisprudentia is knowledge of law) and is now used in the

meanings:

- science about law and state (theoretical activities in the field of law);

- professional practice of a lawyer (judge, prosecutor, investigator, notary,

etc.).

Jurisprudence is a system of knowledge about objective properties of law and

state in their conceptual-legal understanding and expression, about general and

separate regularities of their origin, development and functioning in their structural

variety.

Main attributes of jurisprudence are

1. Public science with applied nature;

2. Science with the properties of exact sciences.

3. Science that embodies the positive qualities of sciences about thinking

(thought).

Thus, legal science combines the qualities of all three major branches of

human knowledge id est. (it means) social sciences, natural sciences, and the

sciences of thought.

The main purpose of theoretical jurisprudence (legal science) is to be a

scientific guide for the practice of our state and legal construction on the basis of

knowledge and awareness of the relevant social processes and phenomena. Legal

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science in modern Ukraine is based on the achievements and experience of domestic

jurisprudence and jurisprudence of other countries, on the ideas and values of human

rights and freedoms, the rule of law and socio-legal statehood.

An object of science is the objective reality of a phenomenon that is

investigated (studied).

An object of theory of law and state (jurisprudence, legal science) is state-

legal social relations, a state and law.

A subject of science is a set of regularities and peculiarities of the phenomena

of objective reality or theoretical knowledge that are studied by this science.

Objects of legal science (jurisprudence) are state and law. In fact, we have

two objects. However, jurisprudence, like every science, has just one subject of study.

A subject of legal science (jurisprudence) is objective properties of law and

state in their conceptual-legal understanding and expression, about general and

separate regularities of their origin, development and functioning in their

structural variety.

A method of jurisprudence is a tool of legal cognition, creation and

organization of legal knowledge.

With the help of a legal method, the subject of jurisprudence is specified and

formalized in a relevant legal theory (legal science, jurisprudence) as a unified system

of knowledge about state and law expressed in definitions (concepts, notions).

A basic method of legal science is philosophical dialectics (materialistic

and idealistic).

Functions of legal science are the main directions of understanding and

expression of legal knowledge:

- ontological (cognitive) is the study of fundamental qualities of law, the most

general essential phenomena and processes in public life, the discovery (opening) of

previously unknown regularities of being ( existence) state and law;

- heuristic is cognition of something about state-legal life, the discovery

(opening) of previously unknown regularities of being ( existence) state and law;

- prognostic is prediction of state-legal processes development;

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- practical-organizational is maintenance of practice;

- methodological is research and development of means to study the legal

reality;

- ideological is influence on the development of legal culture of a society and a

human;

- political is assistance in public policy formation, clarifying political and

legislative decisions.

In a system of social sciences, legal science (jurisprudence) is a branch of

knowledge that has its subject of study that is a state and law.

Jurisprudence is a system of interdependent legal sciences, which can be

differentiated into the cycles of science:

- theoretical-historical (theory of state and law, history of state and law, etc.);

- state studies (state law, administrative law, etc.);

- civil (civil law, civil trial, economic trial, family law, etc.);

- forensic (criminal law, criminal process, corrective-labor law, etc.).

A special place is occupied by sciences that study relations between states

(international law (private and public), and science that study a state and law of other

countries (they create comparative jurisprudence).

Each of these sciences is juridical, has its own subject and methods of

studying. Together, they are parts of the notion of “jurisprudence.” If the subject of

legal science as a whole is a concept of law in all aspects of its theoretical-cognitive

expression, then a subject of each separate legal science as a component of the

subject of legal science as a whole – it is one aspect of the concept of law, some

definite aspect of legal reality. Thus, legal science (jurisprudence) is single (united)

and at the same time differentiated science.

A new form of jurisprudence changes its old form with time. Scientific and

technological progress, the specialization of scientific knowledge, the change of

certain social processes created Air, Space and Informational (Digital or Computer

law), etc.

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Jurisprudence as a system of legal sciences can be represented through the

structure that is the internal division into the main groups (types) of sciences, which

are in mutual connection:

1) theoretical-historical (theory of state and law, history of state and law (world

and native, history of studies about a state and law);

2) sectoral (state law, civil law, criminal law, labor law, family law,

administrative law, financial law, environmental law, commercial law, etc.).

and intersectoral (criminology, prosecutorial supervision, organization of

justice);

3) special applied (criminology, forensic medicine, forensic psychology,

judicial accounting, etc.). Applied sciences are complex. To solve legal issues, they

use the provisions and conclusions of both legal and non-juridical sciences (physics,

chemistry, general theory of statistics, medicine, etc.);

4) sciences that study public and private international law, constitutional law of

other countries, etc.

Historically sectoral science originated first. Theoretical and historical sciences

became the result of investigation of regularities of legal reality, and the theoretical

generalization of state-legal knowledge gained during history.

Theme 2. Methodology of the general theory of state and law.

Plan

1. A concept of Theory of State and Law method.

2. Types of methods.

References:





6






Консум, 2006. – 656 с.


К. Президент, 2006. – 197 с.



Харків, 2002. – 583 с.



432 с.



Паливода А.В. 2007. – 176 с.






A method of jurisprudence is a tool of legal cognition, creation and

organization of legal knowledge.

With the help of a legal method, the subject of jurisprudence is specified and

formalized in a relevant legal theory (legal science, jurisprudence) as a unified system

of knowledge about state and law expressed in definitions (concepts, notions).

A basic method of legal science is philosophical dialectics (materialistic

and idealistic).

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A method of State and Law Theory is a set of logical methods and specific

means of cognition the general and basic the general and basic regularities of origin,

development and functioning of a state and law.

Methodology (teaching about methods) is a system of certain theoretical

principles, logical techniques, specific means to investigate a subject of science.

Theoretical principles are

• historicism,

• unity of logical and historical.

• Logical techniques are

• deductive and inductive conclusion, analysis and synthesis,

• comparison, generalization.

Consequently, the process of understanding of objects and phenomena of

objective reality requires cognition of facts, their analysis and synthesis, comparison,

abstraction, generalization of their essential features and characteristics.

Methods of science of State and Law Theory are divided into general,

separate (specific) and special.

The general method is the method of philosophical dialectics (materialistic and

idealistic). It is revealed through:

1) a logical method of research from simple to complex, from abstract to

specific.

2) method (principle) of unity of logical and historical.

3) system-structural method, which predicts that all state-legal phenomena are

considered as elements of systems.

Specific means of research are tools of cognition that are used to get

knowledge about an investigated subject.

The main separate (specific) methods are:

• formal-dogmatic (juridical-technical) method;

• sociological method;

• statistical method;

• specific historical method;

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comparative-legal method.

Special methods are methods based on the achievements of social and

technical sciences:

• mathematical;

• cybernetic;

• psychological and other

For the purpose of comprehensive cognition of a state and law all of those

methods should be used together.

Theme 3. Concept, essence and social purpose of a state.

Plan

1. General regularities of a state and law origin.

2. Comparative characteristic of a primitive system and a state.

3. Particularities of state origin in different nations: the Greeks, Romans, the

ancient Germans, Slovenes, etc.

4. Essence of the main theories of the state origin.

5. Concept and main attributes of a state, its functions.

6. Essence of a state and its social purpose.

7. State sovereignty and its types. Correlation of state sovereignty, national

sovereignty and sovereignty of the people.

References:









9


Консум, 2006. – 656 с.


К. Президент, 2006. – 197 с.



Харків, 2002. – 583 с.



432 с.



Паливода А.В. 2007. – 176 с.






Pre-state society in stages was:

- an ancient community (primitive human herd (flock);

- a tribal community;

- a peasant community.

3 major social divisions of labor:

1) separation of cattle breeding as a separate sphere of social activity (the cattle

became the means of exchange, which acquired the function of money);

2) separation of the craft from agriculture (the invention of the loom, mastery

of the processing skills of metals);

3) appearance of a group of people (merchants) engaged only in exchange (the

concentration of wealth in their hands through the mediation mission).

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The reasons for the state appearance are:

1) the need to improve the management of a society, due to its complications as

a result of development of production, division of labor, changes in the conditions of

distribution of products, population growth and stratification of a society into social

inhomogeneous groups (classes);

2) the need to keep order in a society that ensures its social status, which is

achieved through mandatory social (especially legal) norms;

3) the need to suppress the resistance of exploited masses that arose as a result

of the stratification of a society into social inhomogeneous groups (classes);

4) the need to protect a territory and conduct wars, both defensive and

aggressive;

5) the need to organize significant social work, the association of large groups

of people for this purpose (in a number of countries in Asia and Africa).

The original system (primitive human herd) has attributes:

1) the existence of a social homogeneous extraclassical society that has no

antagonistic contradictions;

2) the presence of blood-kin separation of the population;

3) the presence of public authority, which is directly equal to the entire

population, expresses and protects the interests of the entire society;

4) the absence of coercion apparatus on which public authority could rely on;

5) the absence of a division of functions in public authority;

6) the absence of collection of taxes from the population;

7) the presence of unwritten rules of behavior id est traditions.

State has attributes:

1) the appearance of a social heterogeneous, class-split society, which has

antagonistic contradictions;

2) the appearance of administrative-territorial division of the population

(districts, regions, etc.);

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3) the appearance of public authority, separated from the population (state

apparatus), which expresses and protects the interests of the most economically

wealthy part (class) of a society and arose as a result of its social stratification;

4) the presence of an apparatus of coercion (suppression) in face of

detachments of armed people in the form of an army, police, etc., on which the state

apparatus relies;

5) the appearance of certain functions (legislative, executive) in separate bodies

of public authority;

6) the appearance of the official system of taxation;

7) the appearance of written obligatory rules of conduct, id est legal norms.

There are two main ways of origin of a state:

European (Athens, Rome, Old Germanic states);

East, Asian (Egypt, Babylon, China, India, etc.).

In Europe, the main factor in the formation of a state was the class stratification

of a society in connection with the formation of private ownership of land, cattle, and

slaves. In southern Europe, states arose in the era of iron. There was no need for such

public works, as in the case of the Eastern (Asian) way of the origin of states. As a

result of the disintegration of communities, either private ownership of land (Athens,

Rome) or private land-use with the preservation of state property (Sparta) arose.

Particularities of eastern type states origin:

1) the basis of economic relations is the state form of ownership;

2) private property is secondary;

3) state power is despotic;

4) there is a powerful bureaucracy;

5) there is a sacralization of power;

6) stagnation and abcence of development in a society, which for centuries

does not develop.

Theories of state origin.

Patriarchal Theory;

Theological theory;

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Contractual (natural-legal) theory;

Organic theory;

Theory of violence;

Materialistic (class) theory;

Space theory.

A state may be understood as:

A state as an organization of political power.

A state as an apparatus of power.

A state as a political organization of the whole society.

A state is a sovereign political and territorial organization of a society that has

a power exercised by a state apparatus on the basis of legal norms that provide

protection and harmonization of social, group, and individual interests with the

support, if necessary, on legal coercion (compulsion).

A state is an entire political organization that:

1) covers the entire population of the country within the boundaries of its

territory;

2) has a special apparatus administration (ruling) that is a system of state

bodies, consisting of a special category of persons, management professionals;

3) has a special legal apparatus of compulsion: armed forces, institutions of

compulsory nature (army, police, prisons and correctional labor establishments);

4) in the person of the competent authorities makes mandatory legal norms,

ensures their implementation, id est a state organizes public life on a legal basis,

acting in such a way as an arbitrator, which coordinates individual, group and public

interests.

5) has a single monetary system;

6) has an official system of taxation and financial control;

7) has sovereignty;

8) has formal requisites that are official symbols: flag, coat of arms, anthem.

A state may be secular and theocratic.

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Functions of a state are the main directions and types of its activity, due to its

tasks and goals and those that characterize its essence.

The functions of a state cannot be identified with the functions of its

individual bodies of state power, which are the part of the state apparatus and are

reflected in the competence, subject matter, rights and duties (powers) assigned to

them.

It is possible to classify the functions of the modern state according to

different criteria: subjects, objects, methods, means and other elements of state

activity.

Functions of a state by means of its activity:

- legislative;

- executive (managerial);

- judicial;

- legal protective;

- informational.

Functions of a civilized state according to the spheres (objects) of its

activity can be divided into internal and external.

Internal functions provide the internal policy of the state:

1) political;

2) economic;

3) taxation and financial control;

4) social;

5) ecological;

6) cultural (spiritual);

7) informational;

8) legal protective.

Internal functions of the state can be divided into two main groups: regulative

and legal protective.

External functions provide foreign policy of the state:

1) political (diplomatic);

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2) economic;

3) ecological;

4) cultural (humanitarian);

5) informational;

6) state defense;

7) maintenance of the world law and order.

In the external functions of the state, two main directions can be distinguished:

foreign policy activity (the national defense function plays a special role here) and

foreign economic activity.

State essence is the internal content of its activities, which expresses the unity

of general-social and narrow-class (group) interests of citizens.

Two aspects of the state essence have been determined since its origin:

• the class aspect means the protection of the interests of the economically

dominant class, the implementation of organized coercion;

• the general social aspect means the protection of the interests of the whole

society, the provision of public goods, keeping of order, and the implementation of

other general social affairs.

The advantage of the general social aspect of the essence of the state was due

to a decrease in the proportion of its class content as a certain result of the

development of a civil society, the determination of rights and freedoms of an

individual. In modern civilized states there were no clearly defined classes, social

contradictions lost their antagonistic character, and the general standard of living of

the population increased.

State sovereignty is the political and legal property of state power, which

means its supremacy and completeness within the country, independence and equality

from outside.

There are two sides of state sovereignty:

internal: expresses the supremacy and completeness of state power in relation

to all other organizations in a political system of a society, its monopoly right to

15

legislation, governance and jurisdiction within the country within the entire state

territory;

external: expresses the independence and equality of the state as a subject of

international law in relations with other states, the inadmissibility of interference in

internal affairs from the outside.

Internal sovereignty is also called legislative sovereignty that is the right of the

legislature to make laws.

There are following features of state sovereignty of Ukraine in the Declaration

on State Sovereignty of Ukraine of July 16, 1990:

1) supremacy;

2) independence;

3) completeness;

4) the indivisibility of state power within its territory;

5) independence in external relations;

6) equality in external relations.

The following signs of sovereignty should be added by:

7) inalienability.

The Constitution of Ukraine states: “Ukraine’s sovereignty extends over its

entire territory” (Article 2).

The peoples’ sovereignty (the people is citizens of all nationalities living in

the territory of this country) means the rule of the people as the source and carrier of

power, its right to decide its own future, directly or through representative bodies to

participate in making of the direction of the policy of its state, the composition of its

authorities, to control the activity of state power.

The sovereignty of the state does not necessarily imply the sovereignty of

the people. The sovereignty of the state can be combined with the lack of sovereignty

of the people, with the presence of a totalitarian regime, despotism.

Sovereignty of a nation means the nation’s sovereignty, which is

implemented through its fundamental rights.

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- the right to exist and free development, possession of a real opportunity to

determine the nature of their national life, including the right to political self-

determination;

- the right to free development of national needs that are economic and social;

- the right to spiritual and cultural development, respect for national honor and

dignity, development of the national language, customs and traditions;

- the right to dispose of natural and material resources in its territory;

- the right to peaceful coexistence with other peoples and nations;

- the right to environmental safety, etc.

Theme 4. Types of states, their general characteristics. State power.

Plan

1. A concept of states’ typology.

2. Types of a state.

3. A concept of state power.

4. Attributes of state power.

5. Correlations between public and state power.

References:










Консум, 2006. – 656 с.

17


К. Президент, 2006. – 197 с.



Харків, 2002. – 583 с.



432 с.



Паливода А.В. 2007. – 176 с.






Type of state is a set of states with similar general features, which manifests

itself in the unity of patterns and trends of development, grounding on the same

economic (industrial) relations, on the same combination of general social and

narrow-group (class) aspects of their essence, similar to the level of cultural and

spiritual development.

There are two approaches to the typology of states:

A formational approach is based on the Marxist doctrine of changing socio-

economic formations (their basis is a type of industrial relations), each of which

corresponds to its historical type of states. The slave-owning type of state

corresponds to the slave-owning socio-economic formation, the feudal one

corresponds to feudal, bourgeois one corresponds to bourgeois. Formation is a

historical type of society based on a particular mode of production. The transition

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from one socioeconomic formation to another occurs as a result of changing outdated

types of industrial relations and replacing them with a new economic system.

Another approach is civilizational that is based on a typical classification of

states of the concept of “civilization,” its level, achieved by one or another nation.

Proceeding from the degree of spirituality of the people, culture, ideology, national

character, mentality, geographical environment and other factors, supporters of the

civilizational approach share civilizations on: • primary; • secondary.

State power is a special kind of social power. If in the primitive society social

power has a public (social) character, then in a class-organized one-political. In a

state we are dealing with political power. In the analysis of the political systems of

society, power takes the same place as money in economic systems: it has strong

roots in the public and private life of citizens.

The ratio of political and state power.

• “political power” and “state power” are identical notions, since political

power comes from the state and is carried out through its direct or indirect

participation;

• “political power” and “state power” are not identical notions, but all state

power is political.

Signs (features) of state power: public power, power of apparatus character,

supreme power, universal power, sovereign power, legitimate government.

Theme 5. Form of a state: a form of state rule, territorial system and

political regime.

Plan

1. A concept of a form of a state.

2. A form of state rule.

3. A form of a state territorial system.

4. A form of a state political regime.

References:

19








М.В.Кравчука. – Тернопіль, 2002. – 387 с.


Консум, 2006. – 656 с.


К. Президент, 2006. – 197 с.



Харків, 2002. – 583 с.



432 с.



Паливода А.В. 2007. – 176 с.





Contents of the lecture

A form of a state is the method of organization and realization of state power.

The concept “a form of a state” consists of 3 elements:

1. a form of state rule is the structure of bodies of state power;

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2. a form of a state territorial system is the method of territorial

organization of a state, division of a state on parts and distribution of power between

a state and these parts;

3. a form of a state political regime is the method and character of

realization of state power.

The are 2 forms of state rule: a monarchy and a republic.

A monarchy is a form of state rule according to which sovereign power in a

state is executed almost or partly by one person that belongs to a ruling dynasty (a

Pharaoh, a king, a shah, a tsar, an imperator) and obtains power by inheritance and

for the whole life, not on certain term. A monarch is not legally responsible for his or

her actions.

There are 2 types of a monarchy: unlimited (absolute) and limited

(constitutional).

A republic is a form of state rule in which state power belongs to a collective

legislative body of state power (a parliament). Population of a state elects members of

a parliament for a definite term.

There are parliamentary, presidential and mixed republics.

There are 2 types of a state territorial system׃ unitary (simple) and

complicated.

A unitary (simple) state is a state, territory of which is divided into

administrative territorial units (regions, provinces etc.) which do not have own

sovereignty and all attributes of a sovereign state.

For example: Ukraine, Belarus, France, Poland, Cuba, Hungary, Czech

Republic, Sweden etc.

This type of a state territorial system is the most popular nowadays. But such

countries as Ukraine, Portugal according to their law have autonomous republics. It

does not mean that such states are complicated, they are unitary (simple) with

attributes of a federation. For example, the territory of Ukraine according to the

Constitution of Ukraine consists of 24 regions and the Crimean Autonomous

Republic. The Crimean Autonomous Republic is the part of Ukraine because of

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historical reasons and has no enough authority (especially economic) to be the

independent sovereign state.

There are 3 types of complicated forms of the state territorial system: a

federation, a confederation, an empire.

There are 2 types of a state political regime: democratic and undemocratic

(totalitarian).

A democratic state political regime is characterized by participation of the

people in realization of state power, real defence of human rights.

For example: the United States of America, Ukraine, etc.

There are democratically-liberal, democratically-radical and

democratically-conservative types of a democratic state political regime.

An undemocratic (totalitarian) state political regime is characterized by

absence of real defence of human rights and absence of real participation of the

people in realization of state power.

For example׃ Stalinism in the USSR.

Theme 6. A mechanism of a state.

Plan

1. A concept of a mechanism of a state.

2. Integral components of a mechanism of a state.

References:









22


Консум, 2006. – 656 с.


К. Президент, 2006. – 197 с.



Харків, 2002. – 583 с.



432 с.



Паливода А.В. 2007. – 176 с.






A mechanism of a state is a system of all state organizations, which carry out

tasks and realize functions of a state.

A mechanism of a state consists of 3 parts:

- an apparatus of a state;

- public institutions;

- state enterprises.

An apparatus of a state is the system of all public bodies of state power,

which make tasks and functions of a state in the sphere of administration and

compulsion and have plenary power in accordance with the law.

It is the system of legislative, executive and judicial bodies of state power.

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A public institution is the type of state organizations, which realizes

functions of a state in the sphere of non-material production.

Unproductive activity is typical for public institutions in the field of health

protection (system of hospitals), education (schools, universities) etc.

A state enterprise is the type of state organizations, which realizes functions

and tasks of a state in the sphere of material production.

For example, production of coal, trade etc.

Theme 7. General doctrine of democracy.

Plan

1. A concept of democracy.

2. Attributes of democracy.

3. Functions and principles of democracy.

4. Forms of democracy.

5. Institutes of democracy.

References:










Консум, 2006. – 656 с.


К. Президент, 2006. – 197 с.

24



Харків, 2002. – 583 с.



432 с.



Паливода А.В. 2007. – 176 с.






A word “democracy” is used in different meanings:

• as a form of a state;

• as a political regime;

• as a principle of organization and activity of state bodies and public

organizations.

Attributes of democracy.

1). state character;

2). political nature;

3). provides for the proclamation, guarantee and actual implementation of

citizens’ rights;

4). presupposes legality as a mode of socio-political life;

5). involves mutual responsibility of a state and a citizen.

Functions of democracy are main directions of its influence on social

relations, the purpose of which is to increase the socio-political activity of citizens in

the ruling of a society and a state.

25

The following can be attributed to the functions of democracy.

1). organizational and political;

2). regulatory-compromise;

3). socially stimulating;

4). install;

5). control;

6). guarded

The principles of democracy are the indisputable initial requirements that

apply to all participants in political activity that is to subjects of democracy.

Basic principles of democracy:

1) political freedom;

2) equality of citizens;

3) election of state bodies and constant contact with the population;

4) separation of powers;

5) decision-making by the will of the majority with the obligatory observance

of minority rights;

6) pluralism.

The functions of democracy are realized through its forms and institutions.

A form of democracy is its external expression. Forms of democracy can be

called a lot, but the main ones are as follows:

1. Participation of the people in the management of public and social affairs

(people's power) is carried out in two forms: direct and indirect.

2. Formation and functioning of the system of state bodies on the basis of

democratic principles of legality, transparency, election, changeability, division of

competences, preventing abuse of office and public authority.

3. Legal (first of all, constitutional) consolidation of the system of rights,

freedoms and duties of a person and a citizen, their protection and protection in

accordance with international standards.

26

Institutes of democracy are legitimate and legal elements of the political

system of a society, which directly create the democratic regime in a state through the

implementation of the principles of democracy in them.

In the system of institutes of direct democracy, the most important place

belongs to elections.

A special institute of democracy is a referendum.

Theme 8. State and legal status of a human, a person and a citizen.

Plan

1. Three generations of human rights.

2. Classification of human rights.

3. Types of human rights. Correlation between human and citizen’s rights.

4. Types of human duties.

5. Rights of a child.

References:










Консум, 2006. – 656 с.


К. Президент, 2006. – 197 с.

27



Харків, 2002. – 583 с.



432 с.



Паливода А.В. 2007. – 176 с.






As a result of the scientific systematization of human rights in the historical

review, the theory of three generations of human rights has been emerged.

The first generation of human rights inalienable personal (civil) and political

rights.

The second generation of human rights depend on personal (civil) and the

development of socio-economic and cultural rights.

The third generation of human rights can be called solidarity (collective),

that is, the rights of all mankind that are human rights and the rights of the peoples.

Those are: the right to peace, security, independence, to a healthy environment, to the

social and economic development of both man and mankind as a whole.

Basic human rights are a measure of freedom (the possibility) of a person

guaranteed by law, which according to the achieved level of evolution of humanity is

able to ensure its existence and development and is enshrined in the form of an

international standard as a common and equal for all people.

28

Human rights and citizen’s rights are closely interrelated, but not identical.

A citizen is a person who is legally recognized by a state. If human rights are

enshrined in international legal acts, then the rights of a citizen are in the constitution

of a particular state.

The basic rights and freedoms of a person and a citizen are distinguished

also in the sphere of their realization in public life: personal (civil), political,

economic, social, cultural, ecological.

A legal duty is a legally guaranteed measure of socially necessary (useful) and

stately expedient behavior of a person, objectively due to the needs of the existence

and development of other people, social groups, nations, humanity.

One can say that a legal duty is an obstacle to arbitrariness, chaos, all that

interferes with the normal development of a society.

Classification of duties: personal (civil), political, economic, social,

cultural, ecological.

Rights of a child are the opportunities (freedom) of a minor, necessary for

his/her existence, education and development.

Many rights of the child coincide with human rights (a right to life, name,

acquisition of citizenship, free expression of opinions, etc.). The Convention on the

Rights of a Child of October 20, 1989 (came into force on the territory of Ukraine on

September 27, 1991) formulates the civil, political, economic, social and cultural

rights of children.

Theme 9. State in a political system of a society.

Plan

1. A concept of a political system.

2. Elements of a political system.

3. Interrelations between a state and associations of citizens.

4. A concept and types of public associations.

References:

29










Консум, 2006. – 656 с.


К. Президент, 2006. – 197 с.



Харків, 2002. – 583 с.



432 с.



Паливода А.В. 2007. – 176 с.






A state is not only a result of the development of a society, but also a factor in

the formation of the political system of a society.

30

A political system of society is an orderly system of all political phenomena

that functions and interact (or counteract) in a society for the purpose of conquest,

detention or participation in political power. It is a mechanism for the organization

and functioning of political power.

Elements of a political system of a society:

• policy subjects are astate, political parties, political movements, public

associations, etc.;

• political norms and principles;

• political relations;

• political ideology, consciousness, views, culture;

• links between the mentioned elements.

A special place in a political system of society belongs to a state, since it is

the main means of achieving the goals facing a society, concentrates in itself a variety

of political interests, and provides a solid foundation for a political system by

streamlining its activities.

Inerrelations between a state and associations of citizens have legal

character.

An association of citizens is a voluntary community formation of people,

created on the basis of common interests for the impelemenation of their rights and

freedoms.

Public associations include political parties, socio-economic and socio-

cultural associations, mass movements, associations, religious organizations, etc.

The main ones are a political party and a public organization.

Theme 10. A legal state: a concept, essence and its formation in Ukraine.

Plan

1. A concept of a legal state.

2. Attributes of a legal state.

3. Formation of a legal state in Ukraine.

31

References:










Консум, 2006. – 656 с.


К. Президент, 2006. – 197 с.



Харків, 2002. – 583 с.



432 с.



Паливода А.В. 2007. – 176 с.






32

A legal state is a state in which the law dominates, citizens are under reliable

legal defence in this state, there is mutual responsibility between a person and a state.

This is a state of real human rights, it is an instrument of providing of such rights.

There are attributes of a legal state:

- domination of the law in public and state life, supremacy of the law;

- domination of folk sovereignty. The people must be a source of state

power. Such a state forms the system of bodies of state power through representative

or direct democracy;

- fundamental human rights are fixed in a constitution and other legal

documents. The law spreads not only on citizens but also on a state, all bodies of state

power, public organizations and public officers;

- state power is divided into legislative, executive and judicial;

- a state provides rights and freedoms of a person;

- inviolability of rights, freedoms and interests, honour and dignity of a

person, legal security of a person;

- mutual responsibility of a state and a person, equality of everybody

before the law;

- professionalism of the bodies of state power and public officers, which

create legal norms (rules);

- independence of judicial power from other branches of state power;

- control and supervision for implementation of the laws and mode of

legality by all participants of public relations;

- high level of culture in a society and legal consciousness of all legal

subjects, presence of legal knowledge.

According to the Constitution of Ukraine our state is legal.

Theme 11. A civil society.

Plan

1. A concept of a civil society.

2. Attributes of a civil society.

33

3. Formation of a civil society in Ukraine.

References:










Консум, 2006. – 656 с.


К. Президент, 2006. – 197 с.



Харків, 2002. – 583 с.



432 с.



Паливода А.В. 2007. – 176 с.






34

A civil society is a society of citizens with the high level of economic, social,

political, culture and moral properties. A civil society forms legal relations with a

state. A civil society is a society of equal people in their rights and freedoms. A legal

state provides legal possibilities to be owners for them and participate in political life.

There are attributes of a civil society:

- the main social values are people and their rights;

- priority of a society above a state that is a regulator of public relations

and realizes rights;

- providing of economic freedom of citizens and their associations;

- presence of pluralism (varieties) in all spheres of material and spiritual

life;

- equality of rights and security of all forms of ownership;

- reliable system of social defence of a person;

- ideological, political individual freedom, presence of democratic

institutes and methods, which provide possibility to influence on formulation and

realization of a state policy for everybody.

In Ukraine a civil society is on the stage of forming.

Theme 12. The essence and social purpose of law.

Plan

1. Main approaches of law origin.

2. Reasons of state origin.

3. Correlaton of legal rules and rules in a primitive society.

References:





35






Консум, 2006. – 656 с.


К. Президент, 2006. – 197 с.



Харків, 2002. – 583 с.



432 с.



Паливода А.В. 2007. – 176 с.






Modern scientific concepts (theories) of legal thinking can be divided into

three approaches:

1. Ideological (axiological), or natural-legal determines that the initial form

of the existence of law is public consciousness; law is not the texts of the law, but the

system of ideas (concepts) about obligatory norms, rights, duties, prohibitions,

natural conditions of their occurrence and implementation, the order and forms of

protection, which is in the public consciousness and is oriented on moral values.

36

2. Normative (positivist) says that the original form of being-law is a norm of

law, law is the rules set forth in the laws and other regulations.

3. Sociological defines that the initial form of existence of law is legal

relationships; law is the order of social relations, which manifests itself in the actions

and behavior of people.

Correlaton of legal rules and rules in a primitive society.

Norms of primitive society (norm-customs)

Norms of the state (norms of law)

• By the way of occurrence:

- arise gradually in the process of life together

- set by the state

• according to the volitional norms:

- express the will of the tribe

- express the state will

in the form of external expression:

- are in the minds of people, exist in an unwritten form

- find an external expression in written legal acts

• By the time of entry into force:

- arise and die gradually

- gain strength or terminate the operation in a strictly prescribed manner,

officially

• by way of enforcement:

- are carried out due to traditions; in case of violation the coercion goes from

genus

- are provided by the force of the state.

Reasons of law origin:

(1) qualitative complication of production, political and spiritual life of society;

(2) the separation of a person as a participant in social relations with his/her

claims to the autonomy of existence (social freedom);

37

(3) the formation of a state that needed a new normative social regulator, able

to perform the following tasks:

a) to ensure the functioning of a society as a holistic body of a higher order

than the original society, to maintain order and stability in it;

b) to consolidate and secure the individual freedom of an autonomous person.

Theme 13. General theory of law.

Plan

1. A concept of law.

2. Attributes of law.

3. Functions of law.

4. Principles of law.

References:










Консум, 2006. – 656 с.


К. Президент, 2006. – 197 с.



Харків, 2002. – 583 с.

38



432 с.



Паливода А.В. 2007. – 176 с.






Law is a special type of social norms (rules), a system of obligatory, formally

fixed rules of behavior, which are created, guaranteed by a state with the aim to put in

order public relations.

An objective law is a system of all legal rules (norms), which operate in a state.

A subjective law is possible behavior of a person.

Attributes of law:

- a system of law means that law consists of legal fields (branches or

departments) of law, legal institutes and legal norms;

- an obligatory character of law means that every legal rule is obligatory

for everybody in a state. If a person breaks the law, a person will be punished;

- law is formally fixed means that every legal rule is fixed in the form of

the legal document;

- normativeness of law means that every legal rule is the norm, model for

ordinary or normal behaviour for every person;

- a volitional character of law means that law is the will of the legislator;

- created, provided and guaranteed by a state.

Functions of law are the basic directions of influence of law on public

relations and behavior of people and social development.

39

There are general social and special legal functions of law.

General social functions are:

1. Humanistic is protection of mankind.

2. Organizational is the organization of common efforts of people to

achieve socially useful aims.

3. Educational is a feature of development of legal understanding among

people.

4. Informative (communicative) has the aim to inform people about the

will of the legislator.

5. Evaluational is a criterion of legality or illegality of certain decisions

and actions.

6. Gnosiological (cognitive) means that law is a source of cognition of the

development of society.

Special legal functions are:

1. Regulative means that law is a regulator of legal relations and conduct

of people by the legal rules.

2. Protective means that law protects the rights and freedoms of people.

Principles of law should be understood as its fundamentals. There are general

social and special legal principles of law.

Theme 14. Sources (forms) of law.

Plan

1. A concept of sources (forms) of law.

2. Types of sources (forms) of law.

References:





40






Консум, 2006. – 656 с.


К. Президент, 2006. – 197 с.



Харків, 2002. – 583 с.



432 с.



Паливода А.В. 2007. – 176 с.






Sources (forms) of law are basic types of material expression of normal

standarts for human conduct.

Basic sources of law are:

1. A legal custom is a rule of behavior, which is sanctioned by a state, which

established in a society as a simple custom as a result of frequent reiteration during

great while and which became a tradition.

41

2. A legal precedent is a judicial or administrative decision of a legal case, it

is obligatory for all next analogical cases. These analogical cases must be explained

the same way as the legal precedent.

3. A normative agreement is a document, which contains the rules of

behavior, which has general character, which is created by mutual consent of a few

subjects and guaranteed by a state.

4. A legal document (a legislative act) is a document of the competent bodies

of the state power in which the rules of behavior are fixed.

In Ukraine a legal document (a legislative act) is the basic source of law.

Theme 15. A legal system of a state and a system of law. System of

legislation. Systematization of normative legal acts.

Plan

1. A concept of legal system of a state and a system of law.

2. A concept of a system of legislation.

3. Systematization of normative legal acts.

References:










Консум, 2006. – 656 с.


К. Президент, 2006. – 197 с.

42



Харків, 2002. – 583 с.



432 с.



Паливода А.В. 2007. – 176 с.






A legal system is a complicated notion that containes a system of law.

A system of law is the internal formation (structure) of law, which consists of

fields of law, institutes of law and legal rules (norms) of law.

A field of law is the system of legal norms, which create an independent part

of the system of law and regulate the separate sphere of public relations. The field of

law is the largest element of the system of law. Every field of law has an object and a

method of the legal regulation.

There are such fields of law in Ukraine: criminal, financial, administrative,

constitutional, civil, family, labour, etc.

An institute of law is the group of legal rules, which is the element of the

system of law of a field of law. These rules regulate the most homogeneous relations.

For example, there is an institute of civil responsibility in the civil law, and

there is an institute of citizenship in the constitutional law.

A system of legislation is a system of normative-legal document in which

legal rules are determined and contained.

43

Systematization of normative legal acts may be in a form of

systematiozation, incorporation and codification.

Theme 16. Norms of law in a system of social norms of regulation.

Plan

1. A legal rule in a system of social norms of regulation.

2. A structure of a legal rule.

References:










Консум, 2006. – 656 с.


К. Президент, 2006. – 197 с.



Харків, 2002. – 583 с.



432 с.



Паливода А.В. 2007. – 176 с.

44






A legal rule (a norm of law) is the official, formally fixed, obligatory rule of

behavior. A state creates legal rules and guards them from violations for regulation of

the most important public relations.

A legal rule has a structure and consists of a hypothesis, a disposition and a

sanction.

A hypothesis is a part of a legal rule, which is expressed in the circumstances

and conditions under which legal rights and obligations can be implemented.

A disposition is a part of a legal rule, in which the normal way of behavior (the

rights or the obligations) is reflected.

A sanction is the part of the legal rule, which determinates legal responsibility

for an offence.

Theme 17. Normative-legal act: a concept, types.

Plan

1. A concept of normative-legal act.

2. Types of normative-legal acts.

References:







45




Консум, 2006. – 656 с.


К. Президент, 2006. – 197 с.



Харків, 2002. – 583 с.



432 с.



Паливода А.В. 2007. – 176 с.






A normative-legal act is a source (form) of law that is adopted by authorized

bodies of state power in a form depending on a legal status of a body of state power.

There are following types of normative-legal acts:

- a law that is a legal document made by a legislative body of state power. In

Ukraine laws are adopted by its parliament that is the Verkhovna Rada of Ukraine.

- an under law normative-legal act is a document made by other than

legislative body of state power, as usual by executive one.

For example, regulations are made by the mane executive body of state power

in Ukraine that is its government the Cabinet of Ministers of Ukraine.

46

There is a determined hierarchy of normative-legal acts in Ukraine by its

juridical force.

Theme 18. Law-making and legislation-making.

Plan

1. A concept of law-making.

2. Attributes of law-making.

3. A concept of legislation-making.

4. Principles and functions of law-making.

5. Stages of law-making and legislation-making process.

References:










Консум, 2006. – 656 с.


К. Президент, 2006. – 197 с.



Харків, 2002. – 583 с.



432 с.

47



Паливода А.В. 2007. – 176 с.






Law-making is a legal form of state-owned activity involving a civil society

(in cases provided by the law), connected with the establishment (approval), change,

abolition of legal norms. Law-making is expressed in the formation, systematization,

adoption and disclosure of normative legal acts.

Attributes of law-making:

1) carried out by the state directly or with its prior permission, as well as by a

civil society (the people) and its subjects;

2) is to create new rules of law or to change or abolish existing norms;

3) comes to an end in a written act-document, which is called a normative-legal

act;

4) takes place in accordance with the legal regulation, that is, the procedure

established by legal norms;

5) has a specific target and organizational orientation. Law-making can not be

reduced to legislation-making. Legislation is the exclusive monopoly of

representatives of the major state bodies (in Ukraine it is the Verkhovna Rada) or the

people (civil society) in cases stipulated by law.

Legislation-making is an important part of lawmaking, which ends with the

adoption of laws. The result of legisaltion-making is all regulatory acts: laws,

decrees, orders, decisions, etc. They appear as a result of complex activity of the

highest state bodies, local governments, local state administration, commercial and

non-profit organizations, labor collectives.

48

There are two groups of principles of law-making: general and special.

The functions of law-making are the direction of activity associated with the

establishment, change or abolition of legal norms, the creation and development of

legislation.

Law-making process is a system of interdependent procedures (stages) in the

adoption, modification of both laws and by-laws.

Stages of law-making and legislation-making process:

1. Pre-project stage;

2. Project stage;

3. The stage of adoption of the draft normative legal act is inherent in the

collegial law-making body;

4. Approval stage;

5. Informational stage.

Theme 19. A concept and essence of legal relations as a special type of

social relations.

Plan

1. A concept of legal relations.

2. Attributes of legal relations.

3. A structure of legal relations.

References:









49


Консум, 2006. – 656 с.


К. Президент, 2006. – 197 с.



Харків, 2002. – 583 с.



432 с.



Паливода А.В. 2007. – 176 с.






Legal relations are public relations, which are regulated by the law, their

participants have subjective rights and legal duties, which are guaranteed by a state.

Basic attributes of the legal relations are:

1) arise up on the basis of legal rules;

2) have sides (parties) that have subjective rights and legal duties;

3) legal relations are the type of public relations of a natural person or a legal

entity (person), organizations and communities;

4) a state controls and guarantees realization of subjective rights and

observance of legal duties in legal relations.

There are three elements of the structure of legal relations:

1) a subject;

50

2) an object;

3) contents of legal relations.

Subjects of legal relations are participants, which have subjective rights and

legal duties.

It is possible to devide them into:

1) a natural person and a legal entity;

2) a state and public organizations;

3) different communities (labour collective, nation, etc);

4) a civil society.

The subjects of legal relations must have legal personality. This is ability to

have rights and duties, use them and to be a subject of legal responsibility for

offences.

Legal personality consists of legal capacity and legal capability.

Objects of legal relations are social things that satisfy interests and necessities

of people. They are divided into material, spiritual welfares, actions of subjects of

legal relations, result of their activity.

Contents (a composition) of legal relations are characterized by combination

of actual and legal.

Theme 20. Concepts, mechanisms and forms of implementation of law.

Law enforcement.

Plan

1. A concept of implementation of law.

2. Forms of implementation of law.

3. Law enforcement (application) of legal rules as a complicated of form of

their implementation.

4. A concept of an act of legal rules application (law enforcement act).

References:

51










Консум, 2006. – 656 с.


К. Президент, 2006. – 197 с.



Харків, 2002. – 583 с.



432 с.



Паливода А.В. 2007. – 176 с.






Implementation of the rules of law is the implementation of the rules of legal

norms in the lawful behavior of subjects of law, in their practical activities, it can be

regarded as a process and as a final result.

52

Forms of implementation of law:

Compliance consists in refraining from actions prohibited by legal norms, strict

adherence to the established prohibitions.

It assumes the passive behavior of the subject.

Execution consists in the obligatory execution of active actions, which are

punishable by the rules of law in the interests of the rightful party, in the performance

of both cases.

It assumes the active behavior of the subject.

Use is to use the opportunities provided by legal norms in the exercise of

subjective rights to satisfy their own interests.

It assumes both active and passive behavior.

Law enforcement (application) is carried out in the procedural manner by the

power-organizing activity of competent state bodies and officials, which consists in

the individualization of legal norms in relation to specific subjects and specific life

events in the law of application of the rules of law.

Application of the rules of law can be simple and complicated.

A complicated procedure for the application of rules of law, as a rule, consists

of three stages of enforcement activity:

1) establishing actual circumstances of a case;

2) establishment of the legal basis of the case in the form of the choice and

analysis of legal norms (otherwise: legal qualification of factual circumstances);

3) resolution of the case and documentary approval of the decision.

An act of the application of the rules of law (law enforcement act) is an

individual legal act is expression of the will (decision) of the authorized legal entity

(competent public authority or official), which establishes (changes, terminates) on

the basis of legal norms of law and obligations of the participants of concrete legal

relationship or measure of liability of specific persons for their committed offence.

Theme 21. Interpretation of rules of law.

Plan

53

1. A concept of legal rules interpretation.

2. Types of legal rules interpretation.

3. A concept of an act of legal rules official interpretation.

References:










Консум, 2006. – 656 с.


К. Президент, 2006. – 197 с.



Харків, 2002. – 583 с.



432 с.



Паливода А.В. 2007. – 176 с.





54


Interpretation of the rules of law is the intellectual activity of a subject,

associated with the establishment of their exact meaning (content).

By the subjects and legal consequences are distinguished:

1). official interpretation is clarification of the content and purpose of legal

norms, which is formulated in a special act by the authorized body within its

competence and has a legal binding force for all who apply the clarified norms. For

example, the only legal interpretation of the Constitution of Ukraine is the

Constitutional Court of Ukraine. Its interpretation is compulsory, legal.

2). unofficial interpretation is clarification of the content and purpose of legal

norms, which proceeds from persons not having the official authority, and therefore,

does not possess legally binding force. For example, the interpretation of an article by

professor of law contributes to legal practice and can affect the official interpretation.

However, it is not mandatory, it is not legal.

There are three ways to interpret the volume.

1). literal (adequate);

2). spreading (expanding) interpretation;

3). restrictive interpretation.

An act of official interpretation of the rules of law (an interpretative and

legal act) is an act document that contains an explanation of the content and

procedure for the application of the legal norm formulated by the authorized body

within its competence and is binding on all who apply cleared rules.

Theme 22. Offence. Legal liability.

Plan

1. A concept of an offence.

2. Attributes and types of offences.

3. A concept and types of legal liability.

4. Functions and grounds of legal liability.

55

References:










Консум, 2006. – 656 с.


К. Президент, 2006. – 197 с.



Харків, 2002. – 583 с.



432 с.



Паливода А.В. 2007. – 176 с.






56

An offence is a publicly dangerous or harmful, guilty, wrong act of a subject,

who has legal personality, this type of conduct breaks the legal ruls.

An offence has such attributes:

- this is a publicly dangerous or harmful act;

- this is an illegitimate act (action or inactivity), which conflicts with the rule

of law;

- this is a guilty act, which foresees guilt of a person, who has done an

offence;

- this is a legally punishable act, which foresees legal responsibility for

violation of the legal rule;

- causal connection between an offence and consequences. It is impossible to

accuse a person in an offence, if there is no such a connection.

There two types of offences:

- misconducts;

- crimes.

An offence has a composition of an offence, which includes such elements:

- an object of an offence;

- an objective side of an offence;

- a subject of an offence;

- a subjective side of an offence.

Liability (responsibility) is a duty of a subject to be responsible for his or her

legitimate or illegitimate conduct.

Legal liability is divided into positive (perspective) and negative

(retrospective).

Negative (retrospective) legal liability is consequences for an offence.

There are such types of negative (retrospective) legal liability: criminal,

administrative, civil, disciplinary, constitutional, international, etc.

Functions of legal liability are main directions of legal influence both on

offenders and on other people with the aim to defence the law and order and to

educate subjects of legal relations, who have done or can make an offence.

57

Functions of legal responsibility are: preventive, informative, educational,

repressive, compensative.

The ultimate goal of legal liability is to decrease offences and liquidate

them at all in a country.

Legal grounds (reasons) of legal liability are conditions at presence of which

it is possible to punish an offender. They are:

1) presence of a legal rule that foresees a composition of an offence;

2) legal fact;

3) legal personality of a subject of an offence;

4) presence of a legal document about an offender’s liability that entered

into legal force.

Theme 23. Lawfulness and order.

Plan

1. A concept of lawfulness.

2. Principles of lawfulness.

3. A concept of legal order.

4. Attributes of legal order.

References:










Консум, 2006. – 656 с.

58


К. Президент, 2006. – 197 с.



Харків, 2002. – 583 с.



432 с.



Паливода А.В. 2007. – 176 с.






Lawfulness is a complex (principle, method, mode) social and legal

phenomenon, which characterizes the organization and functioning of a society and a

state on a legal basis.

Principles of the mentioned above are as follows.

1. The rule of law regarding all legal acts.

2. General.

3. Unity of understanding and application of laws throughout their territory.

4. The inadmissibility of opposing legality and expediency.

5. The inevitability of liability for an offence means timely disclosure of any

unlawful act.

6. The rule of law by the regime of democracy, which provides for strict

adherence to two types of legal regulation.

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Legal order is a part of a system of social relations regulated by the law and

protected by it and by a state. It is established as a result of adhering to the rule of law

in a society. If legitimacy is a principle, a method of activity, a regime of actions and

relations, then legal order is their result.

Attributes of legal order are based on its nature id est it:

1) is laid down in legal norms in the process of law-making;

2) is based on the rule of law in the field of legal relations;

3) is established as a result of the implementation of legal norms, that is, the

implementation of legality in the implementation of law;

4) creates favorable conditions for the exercise of subjective rights;

5) implies the timely and full implementation of all legal entities;

6) requires the inevitability of legal liability for anyone who committed an

offence;

7) establish a strict social discipline;

8) implies a clear and effective work of all state and private legal bodies and

services, especially justice;

9) creates conditions for the organization of a civil society and the regime for

the promotion of individual freedom;

10) is provided by all state measures, up to coercion.

Theme 24. Legal awareness and legal culture.

Plan

1. A concept, types and functions of legal awareness.

2. A concept of legal culture of a society.

3. A concept of legal culture of a person.

4. A concept of legal culture of a lawyer.

References:



60








Консум, 2006. – 656 с.


К. Президент, 2006. – 197 с.



Харків, 2002. – 583 с.



432 с.



Паливода А.В. 2007. – 176 с.






Consciousness is one of the forms of social consciousness.

Consciousness is a relatively independent sphere (area) of consciousness:

• public;

• group

• individual.

61

Legal awareness is a system of ideas, ideas, emotions and feelings that

express the attitude of the individual, group, society to the current, past and desired

law, as well as to the activity related to the law.

By actors (carriers) of legal conscience distinguish the following forms of legal

conscience:

1) individual is a set of legal views, feelings, sentiments and beliefs of a

particular individual;

2) group expresses the attitude to law, legal phenomena, their assessment by

social groups, formal and informal groups, reflects their common interests and needs,

their relation with the interests of the whole society;

3) social expresses the attitude to the law of all society, reflects its interests.

The depth of the reflection of legal reality justice can be:

1) everyday, unprofessional is a vital, sometimes superficial judgment of the

human right that encounters the right in everyday labor, family, social and other

spheres of life;

2) professional is specialized legal knowledge used in the work of lawyers. It

includes:

а) scientific (theoretical) legal consciousness of scientists, teachers of higher

educational establishments;

b) practical legal awareness of judges, legal advisers, lawyers, prosecutors, etc.

The legal knowledge of a lawyer implies a high level of legal thinking, which is

largely deterministic law.

Functions of legal consciousness are the main directions of its influence on

legal phenomena, the legal system as a whole.

Basic functions are:

1) cognitive (cognitive, informational) involves knowledge of law, awareness

of normative acts, the content of legal norms; without information about the law,

there can be no relation to it.

2) law-creating (value, emotional) involves a valuable attitude to the law, the

correlation of legal norms with their views on the legal, obligatory, necessary. This

62

function indicates that normative legal acts act as an external expression of the legal

consciousness of the society and legislative bodies of the state;

3) regulatory involves the ratio of human behavior to the current in the society

system of legal orders; motives and instructions regarding the behavior regulated by

law in accordance with legal permissions and prohibitions.

Legal culture of a society is a kind of general culture, which is a system of

values, achieved by humanity in the field of law and relates to the legal reality of this

society.

The main functions of the legal culture are:

1) cognitive is assimilation of the legal heritage of the past and present

(domestic and foreign);

2) regulatory is ensuring the effective functioning of all elements of the legal

system and the creation of unwavering law and order;

3) normative-aceologic is an assessment of the behavior of the person, the level

of development of legislation, a state of law and order in accordance with the law of

the state and international standards.

Legal culture of a person is due to the legal culture of a society, the degree

and nature of the progressive legal development of the person who ensure its

legitimate activity.

Legal culture of a person includes:

1) knowledge of legislation (intellectual cut). Awareness has been and remains

an important channel for the formation of a legal mature person;

2) conviction of the necessity and social utility of laws and by-laws (emotional

and psychological cut);

3) the ability to use legal instruments those are laws and other acts in practice

(behavioral cut).

Legal culture of a lawyer is seen in the critical creative understanding of legal

norms, laws, legal phenomena in terms of their humanistic, democratic and moral

content.

A professional lawyer’s culture implies:

63

1) knowledge of legislation and opportunities of legal science;

2) a belief in the necessity and social utility of laws and by-laws;

3) the ability to use legal instruments those are laws and other legal acts in

everyday activities, to resort to the use of all the achievements of legal science and

practice in the adoption and formulation of decisions.

Theme 25. Legal systems of the present.

Plan

1. A concept of comparative jurisprudence.

2. A concept of “a legal system” and “a leal family.”

3. Types of legal systems and their subtypes.

References:










Консум, 2006. – 656 с.


К. Президент, 2006. – 197 с.



Харків, 2002. – 583 с.

64



432 с.



Паливода А.В. 2007. – 176 с.






Comparative jurisprudence, or legal comparative studies (Latin

comparativus – comparative), is a science that studies the general and specific

patterns of the origin, development and functioning of modern legal world systems.

A term “a legal system” expresses specifically the historical, real-life

complex of interconnected legal means and phenomena of a state.

A term “a legal type (family)” is a generalizing theoretical model of legal

content that has an artificial character. It is the result of a scientific classification

(typology). The type (family) of legal systems reflects the general and specific

features of specific national legal systems, the similarity and distinction of which are

determined according to the indicated criteria.

Concepts “a type of a legal system” and “a family of a legal system” are

identical concepts.

Classification of legal systems by the following types:

1. Roman-Germanic type of legal system or the system of continental law

(countries of continental Europe: Italy, France, Spain, Portugal, Germany, Austria,

Switzerland, etc.). Inside the Romano-Germanic-type type of legal system there are

two subtypes, or two legal groups:

65

- Roman (France, Belgium, Luxembourg, Holland, Italy, Portugal, Spain, the

leading national group in France);

- Germanic (Germany, Austria, Switzerland, etc. The leading national group in

this group is Germany).

2. Anglo-American type of legal system or the system of common law

(England, Northern Ireland, USA, Canada, Australia, New Zealand, to some extent -

former colonies of the British Empire (now 36 countries are members of the

Commonwealth), etc.). Within the Anglo-American type of legal system, there are

two subtypes or two groups:

- English General Law (England);

- American law (USA).

In addition, the division of the Anglo-American type of legal system is possible

in two groups:

- European Common Law (England, Ireland);

- Non-European Common Law (USA, Canada).

The law of every country outside of Europe has acquired broad autonomy

within the Anglo-American type of legal system.

3. A mixed type of legal system emerged at the junction of two classical types

of the legal system: Roman-Germanic and Anglo-American-speaking and has

specific features.

Within this type, you can distinguish two groups:

- Nordic (Scandinavian) legal systems (Denmark, Sweden, Norway, Iceland,

Finland);

- Latin American legal systems (Argentina, Paraguay, Uruguay, Chile, etc.).

4. Religious-traditional type of legal system has several subtypes:

- Religious community (Muslim, Hindu, Jewish, Christian groups).

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