On correlation between objective and subjective factors defining the law making process in the Republic of Kazakhstan

Zharbolova Aigerim Zhaksylykovna – candidate of legal sciences, assistant professor of the department of theory and history of state and law, constitutional and administrative law, al-Farabi Kazakh National university

Law making activities has been under the influence of certain objective and subjective factors. Objective basis and subjective factors trigger law enforcement process and influence the laws’ content. Although law making activities of the Republic of Kazakhstan parliament results from conscious activities of deputies, it is subject to numerous other factors. These factors may depend on consciousness and will of the lawmaker, but also might exist independently. Objective factors that impact the law making activities are the conditions independent from human consciousness and will, but are decisive and grounding conditions (climatic and geographical conditions, social, economic basics, etc.), underlying that type of activities.

Subjective factors of law making process are conscious activities of law making activities participants. Considering them as a whole we see that objective factors are the lever of the law making activities and influence the law project formation, while timely cognition of objective factors and well-timed adoption of due law results from subjective factors, or conscious human activities. Category «objective factor» gives an opportunity to understand that historical events are defined by objective regularities irrespective human consciousness and establish to what objective side of history depends on humans, their consciences and actions.

Objective factors in comparison with subjective factors are initial and defining. Thus, lawmaker actions concerning the law making process are objectively grounded. Lawmaker dose not select external objective conditions underlying lawmaking process by his own choice. He is always bound to certain objective causes and is dependent on objective necessity.

Subjective factors of lawmaking change, develop, and are in permanent links with objective foundations. Therefore, economic, social-historical and other objective foundations influence consciousness of deputies, government members in realization of their rights of lawmaking initiative.

Conscious deputies’ activities as well as other subject participating in lawmaking process depend on public life, economic development of society зand other objective conditions. Therefore, subjective factors of lawmaking are connected with the objective foundations. The connection of objective and subjective factors with objective foundations is analyzed by prof. Kenzhaliev, who emphasized specifics of political power in the Kazakh society: “In that society political power acts with other regulating public forces. Regulatory powers of nomadic society – customary law, public consciousness nomadic lifestyle and natural conditions were closely interconnected. State power and state organs of traditional Kazakh society were to take into consideration their basic regulatory public forces. They were to count the limits and conditions of the systemic interrelations of the above-mentioned factors”/1/.

Thus, old practice shows that political power evolved in close connection with objective foundations, in that case with natural-geographic and natural-public conditions. Therefore, we can conclude that development of subjective factors is determined by objective conditions. But that opinion pointing to the role of objective basics does not envision that subjective factors are not the basic one, but are derivatives and supplementary forces, as subjective factors in their turn develop or alter corresponding objective foundations. Thus, they generate considerable changes in social life by adopting laws.

Impact of subjective factors on the objective ones in transitional period when the society enters a new stage of development might be dominating, as objective factors may counterbalance each other. For example, Kazakhstan during the transitional period from the socialist society to a new type of society built its economic system on a new foundation, i.е. destroyed the socialist economics and built a new one. Respectively, due to liquidation of socialist property that was the foundation of socialist economic relations it ceased being an objective factor. New types pf property emerged. Objective economic factors of the old society could not impact the state activities, especially the lawmaking in the new society, because objective factors during the radical historical social transformation are deprived of the objective influence.

Naturally, they do not disappear on their own, as they are influenced by subjective factors. In that case, we can trace dominating role of subjective factors. During the radical transformation, subjective factors come to the fore. As in that period new economic basics are being formed under the influence of subjective factors. But well established they on the contrary start effecting the subjective factors. For example, the state recognized private property, and fixed that in the constitution and other legal acts. Thus, subjective factor generated an objective foundation. Further a law of reverse force starts working. If the analyze that example, then private property forces the state to take certain measures – the state adopts laws on private property protection, creates conditions for its development. Therefore, we can conclude that these two categories (objective foundations and subjective factors) are interconnected, integral and are two sides of the historical development.

Corresponding to the social development, correlation between objective foundations and subjective factors in lawmaking must match each other. Conscious activities of lawmaker musty originate from such actins as cognition, comprehensive study, and analysis of objective factors. In other words, law maker in his lawmaking process must rest on real objective basics – real economic, cultural, social levels of society, but not on his belief, ungrounded prognosis and take as basics the cultural specifics, national mentality, Kazakh customs and then take laws.

Deputies are humans that express people’s will and legalize people’s will by adopting laws. Will of the people is always connected with own, but not alien natural-public achievements (customs, traditions, culture, forms of labor and lifestyle, etc.). therefore, lawmakers in taking laws must not give up different influences to reach within short time big achivement, they must operate resting on social conditions, not to inflict harm on values, that were accumulated for a long historical time. Lawmaker within the process of law making must not separate himself form the people what is has aggregated within a long period of time, and must view them in holistic way, as an integral part. Оfor that end, lawmaker must know customs, traditions of his people and national mentality. Ignorance of the abovementioned by a lawmaker might have negative outcome. In connection with that we must agree with the opinion of Kazakhstani scholar S.Ozbekuly: «We know from history what negative consequences for the people followed from the adoption of legal norms that did not correspond national consciousness and psychology of our people during the communist totalitarian system of Bolsheviks» /2/.

Thus, the history demands the parliament to take laws considering specifics of people’s psychology, traditional foundations, natural-climatic, social, economic conditions of the state.

References:

1. Kenzhaliev Z.Zh. Some aspects of the Constitution of the Republic of Kazakhstan and legal political issues // Herald of the al-Farabi Kazakh national University, №2, 2002. – 45 p.

2. Ozbekuly S. Idea of the Kazakhstani legal-political historical issues and its principles // Lawmaking process in the Republic of Kazakhstan. Almaty, 1997. – 143 p.