LAW: JUSTICE OR BENEFIT

Ishchanova Gulnar Tulemisovna,

The associated professor of theory of state, law

and constitutional law chair

Of the Kazakh National Pedagogical

University named after Abay,

Almaty, Republic of Kazakhstan

gulnar_tore@mail.ru

87779994379

In the environment of the English philosophers, such as Jeremy Bentham, John Stuart Mill, as well as in the framework of the powerful currents of modern American thought «usefulness» is regarded as the main criterion of all values in the field of knowledge and in the sphere of the actions. It, in General, is to achieve «maximize satisfaction» for the maximum number of people that belong to a certain social group, and that, to escape from unpleasant experiences and suffering. In this case, the purpose of law is the establishment of rules of conduct that can lead to «the greatest happiness of the greatest number of people» [1]. In order to connect the personal happiness and overall happiness, utilitarianism uses the moral criterion, the essence of which is reduced to the evaluation of the quality of actions regarding the consequences of this action for the life of the individual and the society as a whole. Despite the commitment to the ideas of liberalism and individualism John Stuart Mill praised the right of the state to intervene in the interests of the deprived class, right on the modification of the rights of ownership, cooperatives, political liberation of women [2, p. 67]. Для утилитаризма value is the spirit of entrepreneurship, competence, growth, in addition, it seeks to somehow compensate for individual or collective abuse.

Utilitarians contrasted with those who think that the right is not a «plant for the production of public order», but the art, which is characterized by adherence to the declared goals and that, in accordance with the tradition of Aristotle or St. Thomas Aquinas «the purpose of the law is justice»[3].

However, such an approach would require from the beginning to give the definition of «fair».Правовые standards are intended to always implement justice, which we imagine, at least in the form of ideas, the ideas of the fair. By and large, the right finds its contents, peculiar and specific to him, only in the concept of just - in this primary sense, limiting and elementary, imposing not only elementary provisions prohibiting harm to anyone or give everyone credit (on the merits), but also assuming more deep thought the need to strike a balance between the conflicting interests with a view to strengthening of order, providing support and progress of human society. It is known that justice in different ways is determined by the moralists and jurists. For some, it is a «permanent and constant desire to give to each one what belongs to him»: this definition of justice gave Cicero, and after him Holy. Augustine and St. Thomas Aquinas. Justice in this case is not limited to the duty, the implementation of which lies on the conscience of each individual; it is the bearer of its own domestic law is executed in itself, in the sense that it forces us to acknowledge himself by certain persons or organizations. For others justice is «the balance achieved through the coordination of the claims of the one and the obligations of the other» [4, p. 70]. In another approach, «the idea of justice is the idea of a higher order, which is to dominate the world and ensure the triumph of the most worthy of interests» [5, p. 88]. John Rawls, desiring to replace the utilitarian idea of theory of the higher justice, not so long ago made an attempt to revive the traditional theory of the social contract. It is based on the principle of equality in giving the «fundamental rights and duties» and the idea that the socio-economic inequalities are valid only provided «as compensation they create benefits for each and, in particular, to the most disadvantaged members of society». Thus, Justice is understood as equality, and injustice is like inequalities, which are applied not to all the people [6]. In our case, there can be no question about the fact, to explore the advantages of the many possible concepts of justice. You simply need to state their fragility and note, «that there is justice, which is not necessarily the justice of the laws» [7, p. 16]. Apart from the moral duty to be fair there is orientation, making a special emphasis on the social aspect: this orientation, affecting factors, characteristic of life in the society, carry special provisions. Justice implies a balance between conflicting interests; the question arises: is this balance of objectively calculated average value, an equality data of interest, or what is rightfully belongs to each of the parties, should be evaluated subjectively and in connection with the particular characteristic of the stakeholders?

It is important to recognize that there are many interpretations of the notion of justice and that, as the case may be, the right to resort to one or another of these interpretations. Therefore the analysis presented once Aristotle, then St. Thomas Aquinas, and even today may prove to be the most successful. There were three kinds of justice at that time, and the basis of such an analysis, «there were three kinds of differences between the two subjects». In case, when in the role of the subjects were independent from each other person, the relationship of justice, in which they entered, was taken to be called commutative. Where did these entities form a community and acted in the role of its members, as in the case of the state and the citizens, justice was the name of the distribution in terms of the responsibilities of the community in relation to its members, legal - in terms of members ' obligations in relation to the formed by their community. «A neat justice is justice, which establishes the arithmetic equality in the exchanges (between actors). Thus, some of the agreements suggest objectively equivalent of the obligation for its participants. «Distributive justice», on the contrary, has a view to the best distribution of property, rights and obligations between people, and sometimes to the detriment of the fair balance between the obligations of the parties. It is in this aspect one should understand the distribution of social obligations, due to, first of all needs of each (member of the society), and not share of contributions. Equal opportunities for all citizens in the enjoyment of social benefits irrespective of the number of paid their taxes; protection of the rights of tenants, employees also is the result of the influence of the idea of distributive justice in the sphere of positive law. «Legal justice» can be understood as the responsibility of all members of society contributes to the common good when considering the rights of the community to which they (the people) belong to. This principle finds expression in such responsibilities of citizens towards the state, as a duty to contribute to its protection by military service, to promote his life through the payment of taxes or through participation in public works... For this to be managed, the question is how to «obey the laws and lawful orders of the authorities»; for governing this means accurate and consistent performance of their functions. In a word, for everyone, including the state, it is about the implementation of the «social debt» and subject to the requirements of the public good [8, p. 320].

However, we have to note that the definitions of public goods and social debt remain vague and subjective. The choice between commutative and distribution types justice will inevitably controversial, and even arbitrary. In addition, we note that in the law there are various settings in relation to the concept of justice and that schematically, we can distinguish three such facilities.

In some cases, the right of indifferent in relation to any idea of justice: the extremely technical in their nature laws and institutions, such as the laws and institutions of civil society, or the laws and institutions that are inherent to public opinion, are not directly related to the idea of justice. In other cases, where the right to legal equality of citizens or, for example, prohibits usury, it is the execution of justice and the need for it. Finally, sometimes the right to reject any expediency of justice, preferring to order, safety, and the world. Exactly this explains the cases when the rights of one of the parties to the agreement, in accordance with the provisions of the law, are disadvantaged in favour of the security of transactions as a whole, or, because of the expiry of the «Statute of limitations», the rights of a creditor or the owner of the property in favor of the debtor, which has not made the payment, or in favour of the person, who misappropriated some property (the usurper).

Thus, the ideological basis of the legal system can be both the idea of the good, and the idea of justice, which may act in such a role, either sequentially or simultaneously.

THE LIST OF THE USED SOURCES:

1. See: Bentham Jeremy. Selected works. - t. 1. St. Petersburg, 1867.

2. Michael St. John Packe. The Life of John Stuart Mill, Macmillan, 1952.

3. See: Trachtenberg O. V., Essays on the history of philosophy and sociology of England of the XIX century. - Moscow, 1959.

4. G. Gurvitch, «Droit naturel et droit positif intuitif Arch. De Philosophie du Dr. et de Soc. Jur. 1933, № 3-4.

5. P. Roubier

6. J. Rawls, «Theorie de la justice» trad, en francais par C. Audard.- Ed. du Seuil.-1987.

7. Geny F. Science et technique en droit prive positif.- Paris, 1930.- T. 1.

8. Dahin J. Theoriegenerale du droit.-Paris, ed. Dalloz, 1969, 2 tomes, t. 2, p. 1020.