CONCEPT OF SOURCES AND LEGAL FORMS OF THE GERMAN AND RUSSIAN PHILOSOPHY AND THE THEORY OF LAW FROM THE END OF XVIII TILL THE BEGINNING OF XX CENTURY
Journal Title: Право та інновації - Year 2014, Vol 4, Issue 8
Abstract
Problem setting. Theoretical problems of sources and forms of the right were investigated throughout many centuries by outstanding representatives of philosophy and the legal theory. At the same time, so far discussion about concept and a ratio of these phenomena isn't ended, unities of opinions of scientists isn't observed. Considering that fact that in Soviet (in fact – Marxist-Leninist) to the analysis of views of pre-revolutionary foreign and domestic philosophers and theorists-lawyers for this problem not enough attention was paid to the theory of law, and estimates of their approaches had the unilateral and ideologized character, it is represented actual for modern law to address to their scientific heritage. Analysis of recent researches and publications. The author of the article sights of opinions the German philosophers and lawers (I. Kant, G.W.F. Hegel, F.C. Savigny, G. Pyhta, K.H. Marx, G. Ellinek, H. Kelsen), and also Russian pre-revolutionary philosophers and theorists of the law (B.N. Chicherin, S.A. Muromtsev, N.L. Djuvernua, N.M. Korkunov, E.N. Trubetskoy, G.F. Shershenevich, L.I. Petrazhitski, V.M. Hvostov, I.V. Mikhaylovskiy, N.N. Alekseev). Target of research. Eventually the similar analysis taking into account achievements of the Soviet and modern theorists of law will allow to develop and prove author's treatment of concept and distinction of forms and sources of the right. Article’s main body. Legal forms in narrow sense are ways of external expression (fixing) of norms of the objective law. Respectively it is possible to allocate two main forms of the objective law: written and unwritten. In the most general sense the legal source can be defined somehow, from where results, the right is scooped. Synthesis of the previous development of scientists-theorists and philosophers allowed the author to allocate six meanings of the concept "legal source". Conclusions and prospects for the development. Legal sources and legal forms are multiple-valued and nonidentical concepts which in the scientific purposes are expedient for considering in various meanings. Legal forms in a broad sense are understood as various ways of external expression and life of the right in its various meanings and intrinsic manifestations. Legal forms in narrow sense are ways of external expression (fixing) of norms of the objective law. It is offered to allocate two main forms of the objective law: written and unwritten Legal source can be defined somehow, from where results, the right is scooped. For more accurate explanation of the category "legal source" on the basis of synthesis of development of predecessors its specification to six various meanings of this concept is proved. Key words: law, legal source, legal form, decree, legal custom, judicial precedent, contract.
Authors and Affiliations
Kirill Tomashevski
Keywords
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