“Право”|1.История государства и права

A. S. Koszhanov - candidate of legal sciences, associate professor,

of KEU

Orynbekov A.C. – master of law, lecturer of KEU

Karaganda Economical University, Kazakhstan

THE CONCEPT OF LAW

The theme "The concept of law" is one of the significant themes of the theory of the state and the law. In this article the authors examine the concept and essence of law, there is given detailed content of the law, reflects the basic, most essential features, the relation of law and the state, social purpose, function and values of law.

The society can not exist without rules which can order actions of people of different branches. Activities of a person are regulated with the help of social and technical norms. Social norm is a social and economical cleared and consciously formulated rule of people characters that regulates ways of people's life and social relationships.

Signs of social norms:

-subject of regulation is a social relationships;

-it has a form of community, they are formulated in the result of a self-conscious actions of people;

-subjective part is associated with people who are representatives of social groups. [1, 76 p.]

Social norms are divided into several types: legal, humaneness, religious, aesthetic, traditional, corporate and etc.

Humaneness norm is one of the types of the social norms that was formed in the outrage and kind society. Religious norm is a social norm that is nominated by religious superstitions and have an essence of obligation to religious consumers. Traditional norm regulates relationships of people in the society and historically formulated according to its geographic, national, economical factors, became a tradition handing over generation and one of the types of the social norms that was provided with effective measures of the society. Corporate norms are social norms that are bound to the members of the organization determined in regulations of the social organizations.

The basic theories about the appearance of the law: natural – legal, teological, normativistik, marksistik, psychological and socialogical.

Law fulfils an instrumental role and compose a real maintenance as a category of phylosophy and theory. There are different opinions in the science about the concept, origin, significance and maintenance of the law. But it should have homogeneous concept and opinion while using a law in the every day life. If the law refers to several meanings then it loses its value and role in the reconciliation and management of social relations. Defining the concept of law is definining of social relations and the beginning of discipline. [2, 18 p.]

Different views on the right leads to the democratization of society and the notion of pluralism.

Along with the objective and subjective factors, there are epistemological reasons of having a lot of opinions about the law. During the learning there can be an opportunity to get involved in only one phenomenon, consider it superior than the rest and cancel the other views. Therefore, there are different definitions of the law. If one definition is not intended to replace the other and strive to be named the only correct definition, then there would be no malice. Any definition is helpful to deeply understand the definition of the right. And there should be a whole concept of the law in order to use it in practice.

Law is a multilateral complex phenomenon. Therefore, the definition is multifaceted. Despite the fact that opportunities are listed or not listed in the law on the part of humanity and the traditional approach of the law (in general sociological concepts) is determined by the validity of actions and freedom.

Nowadays functional definition of the law based by economy points to the freedom of the people, normatively determined and provides protection in case of upbringing and assures us from damage with the help of the state forcing measures, performs the role of regulation of social relations, as well as determined by the regulatory systems as a tool of social arrangements while formation of the legal democratic country.

Law includes the following maintenances:

-it has a nature of freedom;

-it has a power of common obligations;

-Normative;
-formed and protected by the country;

-Systematical;
-performs a role of regulation of society relationships. [3, 41 p.]

The term "law" is used in two meanings, "subjective" and "objective", but the value of each of them is not fully defined. In the first meaning "law is a legal discipline of life, the totality of all the legal definitions secured by a country." In the second meaning, law is a private person who finds a particular panorama of the abstract definition of specific legal representation.

While determining the value of the law we should take into account two different views:

1. Class view, in this part law plays a role of norm systems guaranteed by a country which provides legitimate freedom of economic class;

2. According to general sociological views law settles relationships of different classes of the society.

However, its maintenance has a versatile shape as a concept of the law. Therefore, there should be noted values of religious, national, racial, and other laws. There are normative, natural and legal, historical-materialistic, social theories which determine the value of the law.

The main types of the law concept include the following:

-regulatory;
-social law;

-natural law theory;

-philosophical law concept;

Law is a system of norms which are formally defined and has a general obligation to specify the human society and the class character and the state freedom of society, a system of norms that are satisfied or authorized by the country, protected by the state forcing techniques and formally regulates social relations.

The right originates from the state and its performance is also ensured by the state. Therefore, the controversial thing is not how to understand a concept of a law, but how the value of it is accepted by the society, considers a legal scholar Rayanov F.M. [4, 63 p.]

Before telling about the notions of economy, politics and law, firstly we need to give a right definition to each of them separately. Economy is a method of production of a particular society, the totality of industrial relationships. Policy is an art of managing public relationships characterizing the relations of groups and classes according to governance. Above we have discussed the notion of the law. There are defined two different opinions about the relations of named phenomena.

According to the first opinion, there is no any phenomenon between them; they have the same obligations in the development of the society. Because the first factor of the origin and implementation of public relations is necessity of the people. In some cases, necessity is satisfied with the power of law, and then it will be transferred to other branches of sociological relations. In this case, we can say about the impact of the law on the economy.

By the second opinion economy determines the policy and the law. But the following will be dependent on the basis (production method). However, the superiority of the economy is conditional, because a policy and a law have the power to influence on development or deterioration of the economy. And in this case, politics is a tie of Economics and Law.

Relationship between politics and law is also different. In some cases, factors of influence can become a policy. [5, 69 p.]

The humanity is a system of norms and rules which regulate good and bad things, fair and injustice of human actions. The relationship between humanity and law appears while regulation of social relations. Demands on people's actions are largely the same:

-the most universal form among the social norms applies to all members of the society;

-objects of regulation are the social relations;

-it originates from the society.

Due to the fact that humanity and law are separate phenomena they have individual features:

-Different by the appearance. Norms of humanity arose with the emergence of the humane society and norms of the law have arisen together with the state;

-Objects of vision are also different. Humanity is in the mind of a man, and the law is in written form in the special state regulations;

-They are also various from each other by the scope of operation. If humanity can regulate all relationships in the society, the law covers only a special part;

-The term of introduction is special. If humanity is used after differentiation of consciousness, then the law can be used only after the entry into force of its utilization;

-Methods of ensuring are different. If humanity is provided by influential social practices, the law norms are provided by government forcing measures. Folk traditions and law. Labor traditions and law.

Currently, the definition of the right type is carried out in two objects. By the first view the form of the law type is determined by type of formation. The main measures of it are the social - economical signs. According to the authors named opinions basis (type of production relation) is decisive factor in the development of the society. By the type of economic base there were identified types of slave-owners, feudalism, bourgeois and socialist rights. These named views have advantages and disadvantages. It does not give an opportunity to reveal the specific historical, national - cultural and legal features of the right.

By the second opinion right is classified according to geographical, traditional, historical, religious and special legal peculiarities. According to the named measurements there have been identified the following types of the law:

1. National legal systems. This is a set of specific historical rights, legal expertise and exceeding legal ideologies of any country;

2. Legal family. This is a set of legal systems marked on the basis of similarities of historical roads of maintenance and the formation of the law. Types of legal family: general corporate, Roman - Germanic law, Slavic law, Islamic law, Indian law, etc.

An advantage of this opinion is that there were identified national, historical, specific geographical and technical - legitimate signs of the law. Disadvantage of it is that the roles of social - economical factors of the right were not fully appreciated as it should be. [6, 84 p.]

Factors of origin and possibilities of the law are considered to be original in the law. Such factors include creative legal actions of the state, the freedom of the nation and material circumstances of the society. The origin of the right is a term which is used during the learning of law. In this case, its content includes scientific works of lawyers, usage legal documents, legal practices, contracts - agreements, historical memorials of the law (Laws of Manu, Russian Pravda, and Seven Code of laws) and archaeological materials. The origin of the law also has values that are used in a narrow object. This is a document which is used to solve specific tasks during practice. It is characterized by an external object that characterizes the right of freedom of the state.

Object of the law is mandatory methods that have legal merits which participate in the organization of legal norms. Objects of law are defined by the following features:

-characterizes the normative strengthen freedom of citizens, grounded by social - economical basis;

-strengthen and ensure the political power of the people, serve for their benefit.

There are 4 types of law object: precedent, traditional law, normative statement and normative agreement. [7, 63 p.]

Precedent is a usage of state body decision on a specific case in consideration of similar cases. Precedent is divided into two types: administrative and judicial and it is used in the Anglo - Saxon legal systems.

Historically formulated traditional law passes on from generation to generation and appoints the State compelling force. At the present time it is largely determined in the - religious ritual systems (Muslim law, Judaic and Hindu law). At present according to the requirements of the market economy in the sectors of civil and banking law there was implemented the use of ritual turnover in Kazakhstan.

Normative legal act is an act taken by a certain rules of the state bodies aimed to strengthening, changing or removing legal norms. It is classified by two large groups: the laws and acts of subordinated to the law.

The law is the supreme representative body of the State or adopted by direct vote of the people (referendum), the normative legal act regulating the essential problems of the society and having the high legal power. Its signs:

-Law productive power is adopted by authorities or direct vote of the people;

-Conditions of the preparation and adoption are identified by the regulations of the Parliament and the Constitution;

-It must carry out the freedom and the need of the people;

-regulates strongly significant problems of the society;

-it has supreme legal force.

This is defined by the followings: 1) other legal acts shall begin from the base of the law and should not be against it, if there will be some contradictions in this case the rule of law will surpass; 2) the law does not require someone consolidation after its adoption by authorities; 3) no one besides the accepted authorities do not have a power to return or to change it. [8, 49 p.]

The law is divided into types by the power of their adoption: Constitutional law and laws. Constitutional law regulates the most important issues of the state and social structures and it will be adopted by a majority of vote of the Parliament (2 / 3 of the parliament).

Acts subordinated to the law is one of the forms of normative legal acts adopted in accordance with the law that covers power not settled by the law public relations and have the force of obligations. Its types:

-Statutes and judgments of the President;

-Government regulations, statutes of Prime – Minister;

-Ministries, departments and normative orders, instructions and rules of the State Committees;

-Regulations and decisions of local governments of the state;
-decisions, verdicts and regulations of local governments.

Normative agreements are legal object that performs the legal relations systems to subject’s needs which provide with the right way of life of every citizen of the society and define the obligations and rights of subjects. Normative agreement is an agreement that form new legal rules of subjects of legal creativity. They can be used along with the regulations.

Action of normative acts is circulated among the space, time and people. Action of normative acts in the space is defined by the value of the territory. Powers of the body are valid only in the territory where normative regulations were adopted. The territory of the Republic of Kazakhstan includes its territory on land, inland and territorial waters, air space and depth. However, the territory of the diplomatic representatives in foreign countries, commercial ships on the open seas, military and air ships belong to the territory of internal state. Therefore, jurisdiction laws and acts subordinated to the laws of the Republic of Kazakhstan are held in these areas.

Acting normative acts in the time interval are explained by the maintenance of its entry into force of the law and the separation from the law. Acting normative acts in the time interval is performed in three ways:

1. Direct act of the law. If there will not be identified other changes after the adoption of the law by the laws and regulations of the chambers of the parliament, the laws of the Republic of Kazakhstan will come into force within 10 days and begin to regulate relations arising in the society;

2. Reverse force of the law. Reciprocal action or reverse forces of the law referred to the laws which regulate relations in the society before and after its adoption and entry into force. But we should not use reverse force of the law. Reverse force of the law occurs in two cases. First, if you will be told that the law may be retroactive, secondly, if the law can mitigate or even eliminate the criminal responsibility in this case law can take the opposite effect;

3. Action of the law over time. In some cases, legal acts which lost their power may be used fully or partly before adoption of the new law. This case is usually used in civil - legal relations. But that can not be happened on the general discipline.

So normative acts may lose their legal force in these cases:

-At the expiration of the act;

-Adoption of a new statement instead of the previous statement;

-In decision about the destruction of a statement by the certain authorities. [9, 61 p.]

Action of the normative legal statement among peoples is closely linked with the told above problems.

Laws of the Republic of Kazakhstan are compulsory to all state bodies, enterprises, institutions, organizations, citizens of Kazakhstan, as well as temporary or permanent foreign inhabitants in the territory of Kazakhstan and people without citizenship. However, sometimes there can be exceptions. According to special acts the rulers of the state can have exterritorial law. They subordinate only to the laws of the state wherever they will be. Special workers of the diplomatic representatives and deputies can have a special immunity. Also political laws of the foreign citizens and people without citizenship are limited.

List of used literatures:

[1] Satershinov B., Syrymbetuly B., Mukhamedov M. History of political legal studies. А: Zan adebiety, 2007.

[2] Beissenova A.U. Theory of the state and law. А: Atamura, 2006.

[3] Baizhanova K.T. Theory of the state and law. Karaganda: Bolashak-Baspa, 2006.

[4] Ozbekuly S., Kopabayev O. Basis of the state and law theory. А: Zhety Zhargy, 2006.

[5] Mukhamedov M. History of political legal studies. А: Zan adebiety, 2007.

[6] Agdarbekov T. Problems of the state and law theories (textbook). А., 2006.

[7] Koszhanov A.S. Theory of the state and law of the Republic of Kazakhstan. Karaganda, 2008.

[8] Ibrayeva A.K. Human right is main principles of the state bodies activities of the law based state (author’s abstract). А., 2008.

[9] Zheksembekova K.A. The process of political modernization. А., “Poligrahia – Servis K”, 2006.