Lavrinenko O.V., Candidate of Jurisprudence,
Senior Lecturer, Donetsk Legal Institute of Lugansk State University of
Internal Affairs of E.A. Didorenko
Aksiologichesky Aspects of the Doctrine About Law Principles in Modern
Conditions
Results spent by the author of
the given publication of researches [1-8] became the basis for following
conclusions and generalisations. The problem of principles of the law directly
is connected with understanding of the maintenance and essence of the law. In
this sense its decision has initial and key value for treatment practically all
other legal phenomena. In the concept of socialist positivism dominating in
recent time the law is considered generally only in its historical reality and
an objective reality and never – according to independent sense of the
concept and existence. According to this, as a matter of fact, especially
applied treatment of the law under law principles it is accepted was to
understand the certain beginnings of the is standard-legal regulation which is
carried out by legal norms, containing in the positive law created by the
state. It is natural, that at such approach both the positive law, and its
principles appeared in position of the passing and changeable phenomenon,
called to reflect an objective historical reality. Accordingly, for law
principles in the given legal doctrine the certain general ideas allocated by
means of abstracting activity of legal thinking from this of the positive law
actually stood out. In this sense that in our country by tradition called law
principles, actually represented only exclusively subjective product of
scientific consciousness received by the analysis of the current legislation.
Actually principles to recognise law it is necessary not simply general, and
the initial and defining ideas making a basis of occurrence, development and
functioning of the law. From this point of view law principles should be
considered not only in aspect positive, but also the natural law. From here
follows, that as the conceptual base of the decision of a problem of principles
of the law the recognition of unity and interosculation natural and a positive
law acts. On such conceptual basis law principles cannot be considered as
especially subjective any more and is abstract-general thought under the form
which maintenance is received by means of reflexion of a certain historical and
passing legal reality, they should be defined as primary and at the same time
«final identity» ideas of the law and law life. Thus, at the present stage of development
of jurisprudence «the law principle» is considered simultaneously as the basic
and supervising idea which contains immemorial and together from themes final
identity of concept of the law and its reality, i.e. the law in itself and the
law in its available life. Such conclusion, in our opinion, as a whole
corresponds to the known philosophical thesis – as initially existing the
law represents that inherent in each person «experience of the natural law»,
i.e. The natural sense of justice, which value was neatly characterised in due
time by the known thinker I.A. Ilyin: «...it lives in a shower and when
still there is no positive law, when there is no even neither «the law», nor
«custom» when any «the authority» has not expressed yet about «the law», true
behaviour. Naive, semiconscious, direct belief what not all external acts of
people are equally admissible and «are true», that there are absolutely
«intolerable» acts and there are «fair» outcomes and decisions, is the belief
which yet is not knowing about distinction «the law» and «morals», lays in the
basis of everyone «the law» and «custom» and genetically precedes everyone
activity on law working out».
«Principle» is the beginning, a
basis, basic position of any theory, the doctrine, a science, outlook. In the
wide plan as it understand any basis from which it is necessary to proceed and
to which need to be guided in informative and practical activities. Principles,
as well as laws and categories, should be elements of the scientific theory
equal in law. They are a basis for knowledge of the objective validity, are
connected with categories and laws. Their feature – to be the precondition
of methodological functioning of various levels of knowledge and to provide
generalisation. Constant use of principles of a science develops system of
knowledge. They help to investigate contradictions in reality, between cash
knowledge and necessity of the successful decision of theoretical and practical
problems. N.G. Chernishevsky in due time fairly underlined, that at whom
principles «in all logic completeness and sequence», at that not only «in a
head confusion, but also in affairs nonsense are not realised!». «It is vain to
argue with those who denies principles» – wise men fairly confirmed. The
category «principles» has important value and in jurisprudence and activity on
application of positions of a positive law. The essence and social appointment
of the law reveals and concretised in its principles and functions. Law
principles, on the one hand, reflect its objective properties caused by laws of
development of the given society, all scale of interests historically inherent
in it, requirements, contradictions and compromises of various classes and
levels of population», and with another – in law principles its subjective
perception by members of a society, their moral and legal sights, feelings, the
requirements expressed in various doctrines, theories, directions legal
understanding is embodied. Therefore law principles should be considered with
the account as unities, and features of both parties, from positions developed
in legal and philosophical sciences of the general representation about
objective and subjective in the law.
Literature
1. Lavrinenko O.V. Ideas and Principles of
the Labour Law: questions of the general theory and methodology /
O.V. Lavrinenko // Nauka і Studia: zbirnyk
naukowych pracji / redaktor naczelna prof. dr hab. Slawomir Gorniak. –
Przemysl: Nauka і studia, 2007. – №3. – Tym 3. – Str. 104–125.
2. Lavrinenko O.V. Research of theoretic–methodological bases
of a formulation of branch principles of the labour
right and keep separate them from adjacent legal categories / O.V.
Lavrinenko // Nauka і Studia: zbirnyk naukowych pracji /
redaktor naczelna prof. dr hab. Slawomir Gorniak. – Przemysl: Nauka і
studia, 2008. – №5. – Tym 1. –
Str. 31–41.
3.
Lavrinenko O.V. Application of a principle of an optimum combination
of unity and differentiation of legal regulation
of service–labour relations of persons
of ordinary and commanding structure of law–enforcement bodies of Ukraine: questions
of the theory / O.V.
Lavrinenko // Современный научный вестник: научно–теоретический и
практический журнал / гл. ред. Н.Х. Корецкий. – Белгород:
Руснаучкнига, 2008. – №14. – С. 3–29.
4. Lavrinenko O.V. The modern concept
of delimitation of principles of the right and system of intrabranch
principles of personnel certification: debatable
approaches to interpretation of their maintenance
and character of a parity / O.V.
Lavrinenko // Perspektywiczne opracovania nauki i techniki – 2008: materiäly IV
Мiedzynarodowej naukowi–praktycznej konferenсji, (Przemysl, 07–15 listopada
2008 roku). – Przemysl: Nauka і studia, 2008. – Volume 9. – Str.
66–70.
5.
Lavrinenko O.V. Principles
of the right and the mechanism of legal regulation
of labour attitudes: ontologic–legal aspects
and points of convergence / O.V. Lavrinenko // Оралдын гылым
жаршысы: Казакстан жене шет ел галымдарын енбектерін жариялау / бас ред.
М.Ф. Хабибуллин. – Меншік иесі: «Уралнаучкнига» ЖШС (Орал к.), 2009. –
№1. – С. 47–61.
6.
Lavrinenko O.V. Research of essence and value of a principle
of legality as regulator of labour activity
of civil servants in a context
of the analysis of modern scientific development / O.V.
Lavrinenko // Kluczowe aspekty naukowej dzialanosci – 2009: materiäly V
Мiedzynarod. nauk.–prakt. konf., (Przemysl, 07–15 stycznia 2009 r.). – Przemysl:
Nauka і studia, 2009. – Vol. 9. – Str. 38–42.
7.
Lavrinenko O.V. Research
of the role and value of terminological and historical
principles in research of structural elements
of the mechanism of legal regulation
of labour attitudes of serving
internal affairs bodies
(IAB) / O.V. Lavrinenko // Современный
научный вестник: научно–теоретический и практический журнал /
гл. ред. Н.Х. Корецкий. – Белгород: Руснаучкнига, 2009. – №2. –
С. 62–74.
8.
Lavrinenko O.V. Research
of modern process of transformation
of the conceptual device of the doctrine about principles of the labour right / O.V.
Lavrinenko // Современный научный вестник: научно–теоретический и
практический журнал / гл. ред. Н.Х. Корецкий. – Белгород:
Руснаучкнига, 2009. – №4. – С. 5–17.