One of the important conditions for the effectiveness of the law is the mastery of all modern methods of creating the norms of law, concluded in various legal acts. The system of certain requirements for the process of creating laws and bylaws have been developed over the centuries by various states and are concentratedly formulated in such a branch of legal knowledge, which is called legislative technology.

The requirements of legislative technology are enshrined in regulatory legal acts, or they can exist in the form of customs, scientific and methodological recommendations.

As a rule, the requirements of legal technology are regulated mainly in special laws and by-laws. In a generalized form, such requirements are contained in the Law of the Republic of Kazakhstan "On Normative Legal Acts" dated March 24, 1998 No. 213-1 (with subsequent amendments, as well as in the Law "On the Parliament of the Republic of Kazakhstan" and the status of its deputies dated October 16, 1995 No. 2529 (with subsequent amendments).

Also, the rules of legal technique are contained in the regulations of the Chambers of Parliament and instructions for office work and documentation.

It must be said that at the end of the 19th - beginning of the 20th centuries, legal scholars paid great attention to the issues of legislative technology, considering it as one of the classic elements of law.

Let us recall the book by R. Iering "Legal Technique", published in St. Petersburg in 1905 and which is part of a larger work on Roman law in 1883. According to the scientist, "what should convince every layman of his ignorance ... is the legal method ... it is exactly what creates the lawyer. "

In the subjective sense, "technology" means the legal art of finishing legal material, in the objective sense - the mechanism of law. French professor Fr. Shezh devoted a long article in 1905 on legislative technique in modern civil law codifications. The reason was the completion in 1896 of the processing of the German Civil Code.

The foreign experience of legislative technique is useful and very instructive. In many European countries, for many years, rules have been steadily applied, concerning not only the ways of formalizing legislative texts, but also their preparation from the point of view of the correct choice of the subject of regulation and the form of the act. The corresponding requirements have been universally recognized.

Thus, on June 10, 1991, the Federal Minister of Justice of Germany approved the "Handbook on the Compliance of Laws and Regulations with Applicable Law and Their Uniform Design".

The recommendations provide characteristics of the criteria for determining the subject of regulation, concepts, basic and auxiliary means, formulations of legal regulations, the procedure for drafting the primary law and the amendment law, legal regulations and promulgation of new editions of laws.

In Poland, France, Czech Republic, Hungary, technical and legal rules are in force, contained either in the regulations of parliaments, or in special documents of governments and ministries of justice.

A kind of unification in this area is facilitated by the recommendations of the European Association for the Promotion of Legislation, the Council of Europe glossaries on local self-government issues, etc.

Legislative technique is a system of rules intended and used for the cognitive - logical and normative - structural formation of legal material and the preparation of the text of the law. In this definition, six interrelated elements can be distinguished: cognitive - legal, normative - structural, logical, linguistic, documentary - technical, procedural.

Each of the elements contains a set of requirements - rules that must be strictly followed. Their application, taking into account the stages in the movement of the bill, should be consistent and interrelated.

The cognitive element means the definition of the subject of legislative regulation, the selection and analysis of processes, phenomena and relations that may be subject to legislative influence. It is justified to proceed from the following range of legally regulated relations:

Their high social significance for society, state and citizen; b) stability; c) primarily - normative regulation;

The predetermination of constitutions;

Eligibility of the subject of legislative activity.

These components are also associated with the correct choice of the form of a legal act, taking into account its place in the legal system and classification signs, both official and doctrinal.

Legislative technique is based on the practice of lawmaking, and scientifically grounded means, rules and techniques for preparing legislative acts that are perfect in form, structure, style of presentation, ensuring the most complete and accurate correspondence of the form of regulatory proposals to their content.

In other words, legislative technique is the technique of preparing a legally high-quality draft law. In this sense, the legislative technique is the application of a proven practice, a scientifically grounded system of rules and techniques for the most rational design of a law in accordance with its nature and purpose.

As individual authors believe, a broader concept is the concept of legal technology - a set of tools, techniques and rules that are used to create and formalize both regulatory legal and enforcement, interpretation and other legal acts.

That is, depending on the types of legal activity, it is possible to distinguish between the types of legislative techniques.

So, in relation to law-making, we should talk about the legislative (law-making, law-making, rule-making) technique.

Legislative technique as a system of certain requirements contains:

Rules for the construction and execution of legal acts;

Techniques and means of formulating the norms of law and other regulatory prescriptions;

Language and style of the legal act;

Rules for promulgation (promulgation) and systematization

Another type of legal technique, law enforcement technique, includes:

Rules for the preparation and construction of law enforcement acts, ways of legalizing documents;

Methods and techniques for interpreting legal norms and acts;

Methods for resolving conflicts in law and overcoming gaps;

Methods of procedural - procedural registration of legal practice.

Conventionally, legislative technique is divided into:

The technique of presenting the will of the legislator;

The technique of documenting it.

Thus, one should agree with the opinion that the concept of legal technique is broader than legislative technique, since the latter contains only techniques and rules for the adoption of laws and other legal acts. Whereas the legal technique also presupposes the rules for the systematization of legislation, the rules for the registration of law enforcement acts, etc. But most often, legislative and legal techniques are considered synonymous in the literature.

It is clear that the legislative technique is not limited to the technique of drafting a bill. It permeates all stages of lawmaking, and also provides activities to streamline legislation. Therefore, we will use an established understanding of the legislative technique. At the same time, we agree that the legislative technique as a technique for working with (normative) legal acts is the most developed, formed type (section) of legal technique, denoted by the traditional, commonly used term

The culture (quality, perfection) of legislative technique is evidence and indicator of the general and professional legal culture of the society. The level of legislative technique largely determines the quality of laws, and through this, the state of legality in the country, the effectiveness of the law, the degree of guarantee of the rights and freedoms of citizens.

Following the principles and rules of legislative technique allows formulating and formalizing legal norms in such a way that the will of the legislator (ideally, it should correspond to the general will - the general interest) is adequately reflected in the norms, and its true meaning does not differ from the textual formulations. Equipping an arsenal of legislative techniques eliminates the ambiguity, ambiguity, of such formulations, ensures their accessibility and recognition.

According to the toolkit, which is specific to the legislative technique, in its content such components should be distinguished as the choice of the external form of legal norms; choice of methods of legal regulation; technical means; techniques other components.

An element of the legislative technique is the normative structuring of the text of the law. This means a clear sequence of operations. These should include actions to develop the composition of an act, establish its constituent parts, formulate the names (titles) of legal regulations (norms), use references and other norms of "legal links", determine the methods and procedure for the entry into force of an act, cancellation and amendment of other legal acts. Let us explain what has been said in more detail.

Taking into account many years of practice and scientific developments, the following rules can be recommended for developing the structure of the law: to highlight in the law as its constituent parts the heading, preamble, regulations, final and transitional provisions. These can be chapters and articles; sections, chapters and articles; parts, sections, chapters and articles. Such division is predetermined by the volume of normative material, but on condition that the legal norm serves as the primary cell.

The mandatory requirements here are:

Normative structure, expressed in the structural organization of legal regulations (hypothesis, disposition, sanction), in the use of their various varieties ( regulatory, protective) etc.;

The legal structure is a typical model that reflects the legal state of the structurally organized phenomenon of legal life.

In other words, the content of the legal structure consists of the means and methods of legal influence built into a certain structure, which only in their systemic logical interaction ensure the achievement of the desired result. The necessary legal means are lined up in it, like atoms in a molecule, in a special sequence and interconnection, in a logically complete chain.

Among the methods of presenting legal prescriptions, the most widespread are abstract and casuistic, as well as direct, referential and blanket.

The issue of referrals is very important in the legislation. With their help, systemic links between norms and acts are provided. In practice, unfortunately, many mistakes are made in defining the types of references.

References to the norms of the law are permissible when it is necessary to provide a connection between its general and specific, special provisions. References to legal acts of a higher legal force are justified when it is necessary to identify the legal source of a given law. There may be references to international acts ratified and approved by Russia and imposing obligations on it, requiring the adoption of domestic acts for their implementation. References to acts of lower legal force are justified when it is necessary to lengthen " legal connection " and determine the grounds for the issuance of a new law or instruct the adoption of a by-law.

In terms of their scope, references can be made to a specific law as a whole or part of it, to a law in a broad sense, to legislation. They relate to both current and proposed legislation. Moreover, in all cases, it is necessary to observe the measure, avoiding mistakes in the choice of their types, as well as redundancy, ignoring or underestimation.

It is very important to remember that a legal structure becomes efficient if, in its content, the subjective rights of the participants in the future legal relationship are balanced by legal obligations and guaranteed by the possibility of applying adequate legal responsibility.

Documenting technique

The documenting technique assumes the structural organization of the legal text and the registration of official details. For this, sentences are combined into logically related paragraphs, parts of articles, articles, paragraphs, chapters, sections and parts. The purpose of such a structural rubrication of a normative legal act is to give it compositional completeness and clarity, which allows you to quickly navigate the content. To a certain extent, this is also facilitated by the preambles of major normative acts. They formulate the main goals and objectives of the adoption of the act, explain its specificity.

Attention should be paid to the specifics of legal and technological methods in different branches of legislation. Their distinction is due to the unequal object and methods of legal regulation.

For example, in constitutional legislation, norms - definitions, norms - goals and norms - principles are more applied, and the norms themselves often consist only of dispositions. In civil and criminal law, a strict and detailed structuring of institutions and norms is traditional.

The official nature of a legal act is confirmed by the allocation of certain details: the name of the act, its title, date of adoption and enforcement, serial number, signatures, seal.

The conclusion that we can draw is that the rapid and large-scale development of the legal sphere of society leads to a sharp increase in the volume of the regulatory and legal array. Citizens and their associations, state bodies and business entities are in daily contact with the law.

However, the quality of laws remains low, and to a large extent, because of the obvious underestimation of the role of legislative technique. As a result, in the process of lawmaking and law enforcement, there are many legal conflicts that could be prevented. But the overwhelming majority of civil servants, deputies, specialists and experts still do not know the techniques of legislative technique, and they are not taught this. However, the technology of law-making itself requires a serious renovation today.

It is not for nothing that in modern literature on the theory of law, legislative technique is traditionally considered in the context of lawmaking as one of its elements. In general, legislative technique is recognized as an important factor in the optimization and efficiency of legislation.

Lecture 13. Language of the law

Legislative technique also includes such an element as the language of the law. We are talking about a broader phenomenon of the language of law as a special logical and lexical structure of speech. This problem has been developed in the legal literature. This is the understanding of the legal language as specific, the words in which form sentences that make up capacious legal formulas. Brevity, concentration, unambiguity, ease of understanding are the most important requirements for this kind of language. On the other hand, one should strictly observe "linguistic prohibitions" - avoid metaphors and figurative expressions, archaisms and dialectisms, foreign words and terms, simplifications and conditional phrases. It is better to express prescriptions by means of prescriptive and statutory prescriptive means.

The culture of legislative activity presupposes a logical consistency in the presentation of the text of the law, a strictly consistent professional style and language of the law, and at the same time its simplicity and accessibility to the most ordinary people. Violation of the logic of the law, inaccuracy of its wording, uncertainty in the use of terms give rise to the need for its interpretation and clarification, lead to distortion of the meaning of the law and abuse.

The text of the law cannot be unfinished, leaving the possibility of its arbitrary "addition" or "expansion". Other features of the style and language of the law are its directiveness and formality. The directiveness of the style of law also embodies its formality, which consolidates the sovereign will of the state.

The main object of the legislative technique is the text of legal acts, the informational embodiment of legal prescriptions. When adopting them, it is important to take into account that the content of such prescriptions (spirit) and form (letter) correspond to each other, so that there is no ambiguity or ambiguity. The legislative technique is designed to structure legal material, improve the language of legal acts, make it more understandable, accurate and literate. In many ways, it is the level of legislative technique that symbolizes a certain level of legal culture of a particular society.

The technique of presenting the will of the legislator presupposes the observance of syntactic, stylistic, linguistic and terminological rules. This is due to the fact that the main, dominant way of expressing legal norms is written speech.

The original unit of the text, consisting of separate words and phrases, is a sentence. It is the sentence that is able to express a complete thought. Its design should be neither unnecessarily complex (overloaded with participial and adverbial phrases, complex sentences, etc., which complicate the perception of the legislator's will), nor artificially simplified. All members of the proposal must be agreed among themselves.

The text of a legal act should be distinguished by simplicity of style, clarity and brevity of wording, the presence of stable phrases ("unless otherwise provided ...", "in the manner prescribed by ...", etc.). The language of the text must correspond to the established method of influencing the addressee, which implies the appropriate use of obligations, permissions and prohibitions.

Legal acts are characterized by directiveness and formality of style. Therefore, the language and style of normative, interpretive, law enforcement and other legal acts should not differ from each other.

When setting out legal regulations, three types of terms are used: common, special-technical and special-legal. However, despite this diversity, all terminology should be clear to the addressee, generally recognized, unambiguous, stable, tested and adequately reflecting certain concepts. Unlike common expressions, terms should have limited semantic specialization, contractual unambiguity, and semantic accuracy.

Within the framework of the concept of law, the "set of concepts" that are supposed to be used is important. These are, first of all, scientific and legal concepts developed by legal science and necessary for the correct construction of the law. Underestimating and ignoring them leads to errors and legal contradictions.

Thus, the language of the law is the only way to express the thoughts of the legislator, and law-making thinking lies at the basis of legislative activity. Language is the main means of formulating a legal norm. Not a single legal norm as a result of legal thinking can be constructed without a specific system of concepts that give a legal norm a logical meaning, condition its logical movement in practical application.

The system of state requirements for the language of the law is an essential guarantee of its quality. The language of the normative act must be understandable and generally used, at the same time, it must be clear and clear, concise. Consistency of the text of the law - a general requirement for the rule-making process is achieved through the clarity of the language of the law. It should be so simple that every citizen could accurately and correctly understand the rights and obligations that a legal norm generates for him, the general meaning of a legal prescription, and have a clear set for its implementation. But here there is a danger of excessive simplification of the legal language, which can lead to its vulgarization, become an obstacle to the correct verbal expression of some of the subtleties of legislative regulation. The accessibility of the language of the law can be expressed through two main criteria:

I. Everyone must accurately and correctly understand their rights and obligations, which are generated by the law.

2. Everyone should understand the general meaning of a legal prescription in connection with its purpose in the system of social norms.

Laconicism is another basic requirement for the language of the legislator. The law must have a strict regulatory content, since its goal is to develop regulations governing human behavior. The legal language does not tolerate verbal repetitions, complicated phrases, unnecessary epithets. But the laconicism of the prescription should not run counter to the full reflection of the state will, which is achieved through the use of a conceptual (terminological) apparatus.

The requirement for the accuracy of the language lies in the most complete and correct reflection of the essence of the legal prescription. Accuracy presupposes the stylistic and grammatical correctness of the legal language, the correct use of words and the connection between them.

For a clearer idea of ​​a perfect legal language, one should refer to the definition of the legal definitions themselves that constitute its basis. Legal definitions should adequately reflect the essence of the phenomenon being defined.

This determines the value of such a logical technique as generalization from a regulatory and legal point of view. The difficulty lies in the fact that, as a rule, it is not possible to cover absolutely all the features of the phenomenon under study, and the legal definition being developed must be correct, i.e. do not disagree with objective reality, reflect it optimally and fully.

Unfortunately, the legal definitions in the current legislation are not always distinguished by scientific excellence. There are, in particular, definitions that are logically inconsistent, insufficiently fully or incorrectly reflecting the essence of this or that phenomenon.

The need for legal concepts is not in doubt, despite the difficulties of understanding them for non-specialists. Therefore, one should not unnecessarily overload the test of the law with legal concepts if they are easily replaceable, do not distort the essence and meaning of the law. It is impossible not to take into account the fact that legal concepts are only a means of legislative technique, with the help of which the prescriptions of the law are expressed. Therefore, the task of the legislator is to achieve maximum accuracy and accessibility for understanding the prescriptions of the law by everyone to whom they are addressed.

At the same time, the simplicity of the statement of the law should not be at the expense of its completeness and accuracy. The law often regulates complex social relations resulting from the implementation of political and legal reforms, as well as in cases where international obligations are included in the legislative framework, and, therefore, new concepts and terms appear. In short, the professionalization of the legislative process is due to the diversity and ever-increasing complexity of social ties.

The law often uses definitions of legal concepts, they are set out either in the general part of the code, or in the general provisions of the law, which is very correct. At the same time, legal concepts and definitions revealing them should be based on a certain consensus. Words and expressions that have legal significance must be used in the same sense in all legal acts.

In the field of legal relations, disagreements in the definition of concepts are not permissible, this would undermine all the criteria for the legality of the formulation and application of legal norms, which becomes especially important at the present stage of reforming the legal system, when many new legal concepts appear, old forgotten terms are revived. However, this does not mean that all legal concepts should be enshrined in legislation. Certain legal terms of fundamental importance have long been established and are contained in all textbooks. That is, many legal concepts can successfully function on the basis of generally accepted definitions contained in qualified scientific commentaries, theoretical works of lawyers - scientists.

The situation is much more serious when translating the texts of legislative acts into the state (Kazakh) language. It is no secret that almost all laws and other laws and regulations are written in Russian and then translated.

In this situation, there is a need to create a serious terminological dictionary of legislation in both the state and Russian languages.

By the way, there is already such a first experience. The terminological dictionary-reference book of the legislation of the Republic of Kazakhstan in Russian was published in Astana in 1998. Its compilers are Candidate of Legal Sciences Idrisov K.Z. and Isaeva V.S., who worked at that time in the apparatus of the Parliament of the Republic of Kazakhstan.

Often, laws use too many specific legal concepts without an extended definition. Therefore, it is important to determine the technical methods of presenting legal definitions in laws. In the practice of applying laws, difficulties often arise due to the definition of terms that have legal significance, such as "large family", dependents ", relatives", "family members", etc.

There is an opinion that all legal concepts of key meaning should be subject to legislative definitions without fail, i.e. concepts with the help of which both the general target meaning of a specific legislative action and the operational meaning of its logical components are comprehended.

General legal concepts should be sufficiently abstract and at the same time sufficiently specific. The most general are constitutional concepts of general generic meaning ("sovereignty", "the right of the nation to self-determination", "property", "freedom of speech", etc.), less general - intersectoral concepts, followed by sectoral, to some extent private concepts. Another necessary requirement for legal definitions is that they must be discursive, i.e. being in a common logical "linkage" with the previous generally accepted definitions.

All legal concepts, one way or another, are interconnected. Some concepts can be compared in their semantic meaning, others can intersect in a certain way, others can be subordinate, etc.

Each concept is in continuous logical movement, which is due to semantic refinement, change. The task is to find, in accordance with the set goal, such a definition that would consistently reflect the most essential features of a particular phenomenon and, therefore, guarantee its reliable use in the law enforcement process.

At present, the use of the words "as a rule", "taking into account that", "usually", "appropriate", etc. has become a rule in the legislation.

These expressions, embedded in the legal context, even before the application of a legislative act open up wide opportunities for its violation or misinterpretation in advance.

Instead of a broad enumeration of exceptions, the need for which may be quite justified, there is scope for the subjective interpretation of the law. Naturally, there are no specific criteria for assessing the clarity of a legislative act. In a number of cases, this issue is decided by the body or person who will apply the law, but the limit of this subjective understanding of the law, the possibility of its situational interpretation by the law enforcement officer, largely depends on the legislator. It seems that by means of legal definitions it is necessary to clearly and clearly state the requirements of a normative act, which in many respects will predetermine its future life.

In a word, we are talking about the fact that in order to achieve the accuracy of the legislative text, it is necessary to use the rules of legislative technique concerning the language of the law, to use terms that have a strictly defined meaning.

INTRODUCTION

This teaching material of the course "Legislative Technique" is designed to give students initial information on the technique of development, writing and execution of texts of regulatory legal acts, as well as the technique of organizing and implementing the legislative process in legislative (representative) government bodies. In the classroom, taking into account the material presented in this publication, students will be expected to work practically with the texts of draft laws being considered by the State Duma.

The presentation of the material corresponds to the concept of legislative technology as a set of rules, methods, means and techniques (tools) used by the subjects of the legislative process to organize and implement legislative activity. At the same time, there are three main types of legislative technique: the technique of conceptual development of draft legislative decisions, the technique of writing and drafting the texts of draft laws, as well as the technique of organizing legislative activity. Each of these types corresponds to a special section of the textbook.

Almost all factual material is based on examples from federal law. At the same time, the basic rules, methods and techniques studied in this course, carried out in legislative activity, have a universal character and are related to work (development, consideration, adoption and publication) of practically all types of regulatory legal acts issued in the Russian Federation. This also applies to different levels of rule-making activity: federal, subjective, municipal.

It is advisable to use teaching materials as a basis for studying the discipline "Legislative Technique". A list of literature, as well as normative legal acts, necessary for a deeper study of the course, is given in addition. Since there are very few textbooks on the subject "Legislative Technique", a wide list of literature is used in this teaching material and is recommended for independent study by students.

LECTURE No. 1

Legal technology as a science, as a methodology and as an academic discipline

Concept, object, purpose and content of legislative technique.

The development of the new system of legislation of the Russian Federation is proceeding rather complicated and contradictory in the context of the ongoing political and socio-economic reforms. The current situation imposes special requirements on the effectiveness of lawmaking, on the quality of the adopted laws and the entire system of legislation. The growing role of legislation is an objective regularity due to the complexity of the tasks facing Russian society.


A special place in the theory of law is occupied by the issue of the content and purpose of legislative (legal) technology, as well as the issue of the quality and effectiveness of individual legislative acts and the entire system of legislation. Legislative technology is based on a system of basic provisions, principles, while it is based on the laws inherent in other sciences: management science, logic, sociology, etc.

In the present UMK under legislative technique means a set of rules, methods, means and techniques (tools) used by the subjects of the legislative process for the organization and implementation of legislative activity. Considered only in relation to laws. The toolkit of the developer of regulatory legal acts (hereinafter referred to as the developer) is classified by subject (list of tasks and issues to be solved), purpose and content. Classification on these grounds allows us to distinguish three main types of legislative techniques: the technique of conceptual development of draft legislative decisions; writing and registration of texts of bills; implementation of legislative activity. Specialists also distinguish additional types of legislative techniques: the technique of making changes and additions to the current legislation; systematization of legislation; the publication of laws and some other types.

Along with the term "legislative technique" in the specialized literature, the term "legal technique" is also widely used. The concept of legal technique, with all the variety of existing definitions, should be attributed to the technique of writing and formatting the texts of regulatory legal acts. The toolkit used in legal technology is the most universal and practically applicable to any type of regulatory legal acts. The rules, methods and means of legislative technique are aimed at achieving all aspects of the quality of laws: legal, managerial, political and social. The toolkit of legal technique is aimed primarily at ensuring the legal quality of laws.

Objects of legislative technique are the texts of draft laws, as well as accompanying documents (explanatory note, financial and economic justification, etc.).

The subject of legislative technique are: the structure and technology of the legislative process, including the composition, content and sequence of its stages, stages and tasks, the conditions for their implementation, as well as requirements for the content and quality of their results; organizational structure - the composition and competence of the subjects of the legislative process; tasks, functions and organization of the legislative process management system, including such elements as goal-setting, regulation of procedures, planning of legislative work, coordination of actions of participants in the process, analysis of efficiency and improvement of the process; functions and organization of the system for supporting the legislative process, including legal, information and analytical, documentary, organizational and technical and other types of support; tasks and organization of the official incorporation of legislation - the publication on behalf of the competent state bodies of collections of current legislative acts, systematized in chronological, thematic or other order.

The purpose of legislative technique is to ensure the efficiency of the legislative process as a whole, i.e. compliance with the requirements for the effectiveness and consistency of legislation, as well as the optimal combination of its stability and the timeliness of introducing objectively necessary changes, subject to a number of conditions and restrictions related to the organization of the process itself, such as the completeness of the implementation of the constitutional rights of the subjects of legislative initiative, compliance with the officially established procedures, etc. The content of the rules, methods, means and techniques of organizing legislative activity synthesizes the achievements of legal sciences, primarily the general theory of law, state (constitutional) law, and sciences that study general issues of organizing complex activities, such as the theory of organizational systems, management, sociology etc.

The basic principles of legal technology include:

general principles of regulation (management) in relation to lawmaking:

a) the adequacy of the legal impact the essence of the problem situation and its compliance with state policy in this area of ​​public relations. To act in accordance with this principle means to ensure: compliance of the subject of legal regulation with the content and boundaries of the problem situation; provision of the necessary rights and the establishment of sufficient requirements for the subjects of legal relations; compliance of legal regulation with state policy in this area of ​​public relations;

b) completeness, non-redundancy and specificity of regulation... The application of this principle is intended to ensure the comprehensive satisfaction of the need for legal regulation, the absence of gaps and omissions in it, as well as unnecessary provisions in the texts of laws, which can be dispensed with;

v) minimization (absence or tolerance) of side effects as a result of legal regulation. The action of this principle is aimed at preventing (minimizing) the consequences (primarily negative) that are not directly related to the solution of this legal problem;

G) timeliness of regulation, which means the introduction of a legal act (its individual provisions) into force at the right time;

e) feasibility of legal impact or the availability of legal mechanisms, organizational and other appropriate resources;

principle of systematic regulation is intended to ensure compliance with the accepted structuring of the law to industries, sub-industries and institutions, as well as the established relationship of legal acts in terms of their legal force; consistency in purpose and consistency in the content of new and existing legal acts, compliance of the type of legal act with the competence of the authority that issued it; the presence of changes in the current legal acts related to the adoption of this legal act;

principle of precision, certainty and clarity the content and form of the established legal relationship: the adequacy of the expression in linguistic means of the essence (concept) of a legal decision, ensuring accurate understanding (interpretation) of the provisions of a legal act by all subjects of legal relations; the correctness of the execution of the act as an official legal document;

principle of creativity to the process of development, writing and registration of draft legislative acts. It is no coincidence that the process of developing draft normative legal acts is also called "rule-making", and the legislative technique in the 19th century. in Russia it was called “art of law”.

Despite the fact that the set of techniques for using linguistic means to express certain ideas in lawmaking is seriously different from expressive techniques and means in fiction, the text of a law is a work, i.e. product of creative thought and work of its authors.

Within the framework of the general requirements of legislative technique, the author of a bill can choose any words, the order of their arrangement, use different legal constructions and ways of presenting legal prescriptions. From this point of view, for the legislator, there are practically no rules of legislative technique, which he must strictly observe. Most of the rules of legislative technology are actually recommendations, and only a small part of them are mandatory requirements, since they were formulated as such in regulatory legal acts.

To implement the principles of developing legal acts in lawmaking, various elements of legal techniques are used, including such as:

application of certain modes (methods) of legal regulation, types of norms and the logical structure of norms. For example, such legal regimes as permissive, permissive, are characteristic of public and private law, certain branches of law and are focused on certain methods of legal regulation - permissiveness, obligation, prohibition;

the use of various ways of presenting prescriptions, classified according to the degree of generalization of the normative material, according to the completeness of the use of elements (hypothesis, disposition, sanction) of a legal norm, according to the "specialization" (definitive, evaluative, dispositive, etc.) of a particular article, according to the use internal and external links;

following the laws and rules of formal logic. The basic laws of logic (identity, consistency, excluded third and sufficient reason) are used in lawmaking for the construction of both legal acts in general and their individual parts and provisions;

use of a formal business style. Despite the fact that the texts of legal acts must comply with the general norms of the modern Russian language, the functional and stylistic features of the language of law presuppose an official character, documentary character, maximum accuracy, expressive neutrality, impersonal non-individual character, clarity and simplicity of linguistic expression of the provisions of a legal act; economical use of linguistic means, the predominance of the dynamic rather than the static side of phenomena;

compliance with the requirements for the terminology of legal acts, such as unity, semantic unambiguity, stylistic neutrality, consistency of terminology; prevalence and generally accepted, stability, availability, correctness of the terms used;

the use of legal structures, stable schemes and models that establish the relationship between the rights, duties and responsibilities of the subjects of legal relations;

adherence to certain rules for the use of details and registration of a legal act as a whole, as well as its structural parts, the use of additional structural and semantic elements, such as notes, tables, etc. So, at the beginning of legal acts, it is customary to place general provisions that can establish goals, objectives and basic principles of regulation, definitions of terms used. The final articles of regulatory legal acts include provisions on the timing and procedure for the enactment of an act, on the cancellation, amendments and additions of existing acts in connection with the adoption of this regulatory legal act.

3. Each specific object or phenomenon has a certain number of properties, the unity of which is its quality. In contrast to the philosophical approach to the category of "quality", which is characterized by neutrality in terms of value, the interpretation of quality in law has an evaluative character - high or low, appropriate or inappropriate quality of a legislative act, etc.

It seems expedient, in addition to the categories “quality of law” and “legal quality of law,” to single out as an independent scientific category “technical and legal quality of law”, which allows focusing the attention of scientists and specialists on various aspects of the legal quality of laws.

Even the great French philosopher Charles L. Montesquieu in one of his main works "On the Spirit of Laws" (1748), defining the concept of law as " necessary relationship arising from the nature of things”, Argued that the laws prevailing in public life should not be a product of the legislator's arbitrariness, but obey certain requirements.

A modern normative legal act, and in particular a law, is not a mechanical structure consisting of separate parts, but an integral and inseparable unity of qualities - legal, social, political, administrative. An analysis of the currently known rules and means of legislative technique testifies that legal science and lawmaking practice have developed the appropriate toolkit for the legislator, providing all aspects of quality law, and not only legal.

Thus, the technical and legal quality of a law is a set of properties of the form of a legislative act, which determine their compliance with the content and regulatory nature of the law.

The legal quality of an act largely depends on the quality of the activities of its developer (s). At the same time, the complexity of the legislative process, the presence of many stages, a large number of participants bring the problem of unification of rules to the fore... Otherwise, the draft law will change depending on the views of each next participant in the legislative process on the rules of legislative technology.

The quality of the law is characterized by the following properties and characteristics, so-called quality indicators2, such as:

functional suitability, i.e. normal operation of the law in accordance with the scope of its application;

reliability (safety, justified durability, the possibility of making changes). Security as a state of impossibility of the onset of harmful consequences for citizens due to the application of the law;

environmental friendliness as the impossibility of the onset of environmentally hazardous impacts from the application of the act;

law enforcement characteristics containing elements of legal and managerial quality (normativeness, consistency, consistency, clarity, accessibility, completeness of regulation, non-profitability, lack of psychological rejection);

aesthetics of the form and presentation of the content (compliance with the requirements of the modern Russian language, compactness, etc.);

ease of use of the act;

operational profitability - a reasonable level of costs in the process of applying the act.

At the stage of the development of the act, all these indicators are a common and permanent technical and legal goal of the legislator and their achievement should be ensured by strict implementation of all the rules and methods of legislative technology.

Legislative technique is the most important component (along with law enforcement technique) of legal technique, which is a set of specific means, rules and techniques for the most optimal legal regulation of social relations.

Legislative technique - a set of tools, rules and techniques for the development, execution, publication and systematization of regulatory legal acts.

Legislative technique includes means, methods and techniques:

  • - expressions of the will of the legislator (linguistic, logical and technical and legal techniques). Here we are talking primarily about terms, constructions, symbols, irrefutable presumptions and fictions;
  • - formation and expression of the content of legislative material in the articles of the law. We are talking about abstract and casuistic ways of presenting norms, about the most optimal ratio of a rule of law and an article of law, etc.;
  • - structural construction of the rule of law and normative legal acts. From this point of view, the rule of law regulating the behavior of people must necessarily include a hypothesis, disposition and sanction. Major pieces of legislation include a preamble or other introductory provisions. Codes, as a rule, are divided into General and Special parts; laws are usually divided into articles, and those, in turn, into parts; acts of the President of the Russian Federation, the Government of the Russian Federation, federal executive bodies, acts of the constituent entities of the Russian Federation and local governments - to the points;
  • - procedures for the adoption of draft laws (draft regulatory legal acts). This refers to the stages of rule-making activity, procedural methods of voting, the first, second and third readings of the bill, etc .;
  • - publication and entry into force: terms, methods and place of publication, the procedure for the entry into force of the adopted normative legal acts, the retroactive force of the law, etc .;
  • - systematization of legislation. In the strict sense of the word, this is no longer a legislative technique, but the methods, means and rules of systematization are very close to lawmaking and are associated with the subsequent processing of normative legal material. We are talking about the rules, techniques and means of codification, incorporation, consolidation.

All the methods, means and rules of legislative technique that we have named are discussed in detail in the corresponding topics of this textbook. Therefore, we will characterize only the linguistic, logical and technical-legal means, methods and techniques of expressing the will of the legislator: nothing else is said about them in this course, and they are little covered in the educational literature.

Legal terminology. Legal terms (from lat. terminus - limit, border) are words or phrases that accurately denote a certain legal concept.

The terminology used by legal science and legislation is very heterogeneous. All legal terms are divided into three groups.

  • 1. Common terms - words of the usual literary language ("living quarters", "share", "capture", etc.). Without them, neither legal science nor legislation can exist, since without common words one cannot express thoughts, make legislation and jurisprudence understandable.
  • 2. Special legal terms - these are terms reflecting the characteristics of the state and law as specific social phenomena and arising in the process of jurisdictional activity. These, for example, are: "legal relationship", "defendant", "plaintiff", "prosecutor", "prejudice", etc. It should be noted that many special legal terms in modern law came from distant past legal systems (" alimony "," claim "," contract "," legal capacity ", etc.).
  • 3. Special non-legal terms - these are terms that belong to other (non-legal) sciences and industries and are used in legislation and legal science ("transportation", "cybernetics", "epizootics", "venereal disease", etc.).

To understand their meaning, one must refer to those branches of knowledge to which they belong.

Legal terminology must meet the following requirements: accuracy in the designation of a particular concept; unity (unambiguity, when a term has one, not several meanings); brevity, clarity and simplicity.

The language of the law should be sufficiently expressive and at the same time devoid of emotional coloring. "The law needs an even, calm tone of presentation, not colored by subjective experience, not depending on the nature of the subject being treated, without magnificent solemnity, nervous excitement, romantic elation or everyday groundedness."

For legislation, for example, the term "state" is familiar, but the words "fatherland", "homeland", "power" that are close to it in their meaning are not used. The legislator uses the term "death", but does not use the words "doom", "death", etc.

According to the figurative remark of the famous Russian jurist S.V. Pakhman, "for someone who has already become familiar with legal science, its dryness does not repulse him, on the contrary, its strict and accurate beginnings and without any coloring of a social or political nature will be for him as attractive as number formulas are to a mathematician. " The same idea, but in other words: "for a lawyer, words-terms are the same as conventional letters for an astronomer; both those and others have to become familiar to those who begin to study."

Legal construction - a specific construction of normative legal material for a particular type of connection between its elements.

Legal constructions are the fruit of many years, and often centuries of thought activity, and are brought into being by the objective needs of regulating human relations.

The scope and features of public relations regulated by law also determine the type of connection of normative legal material, in other words, the originality of a particular legal structure.

For civil law, which deals mainly with property relations, such legal constructions as "contract", "property right", "bona fide owner", etc. are typical. Criminal law, which has a crime and punishment as its subject, operates with structures of corpus delicti , exemption from criminal liability, etc.

Like the norms of law, legal constructions model social relations with specific legal means and thereby significantly reduce, simplify and stabilize the process of legal regulation of a diverse social life.

For example, in the case of a crime, the person conducting the preliminary investigation proceeds from the structure of the crime: subject, subjective side, object, objective side. This design clearly defines the program and procedure for the actions of the interrogator, investigator or judge, relieves him of unnecessary work that is not relevant to the case.

The design of a civil contract (for example, sale and purchase, donation, etc.) uniquely determines the position of the parties, their rights and obligations.

By "applying" legal constructions to certain social relations, people streamline their social life, satisfy various interests, and normalize social order. Well thought out and efficiently working legal structures are a necessary condition for the stability of the legal system.

Legal symbols - these are conventional images, enshrined in legislation, used to express certain legal content.

Symbols are a kind of means of formalizing legal content in order to give it clarity, definiteness, lapidarity and imagery. Symbols as a variety of artificial, substitute signs have a number of features. They often represent material, tangible objects, although they express abstract content; symbols must be understandable to those who use them; symbols, as a rule, are designed for sensory, emotional perception.

In domestic law, for example, a number of symbols are legislatively enshrined and thereby acquire a legal character. Such, for example, are the coat of arms, flag, anthem - as symbols of the state, standing up of those present in the courtroom when the composition of the court appears as a symbol of respect for it and respect for justice. The same purpose is for the judicial robe introduced by the new legislation, the oath taken by the President of the Russian Federation - as a symbol of service to the people, etc.

The use of symbols in legislation frees from the need to give or repeat a description of certain legal phenomena, gives legislation, along with laconicism, rigor, a certain imagery.

The role of symbols in law was especially great during the period of its inception. Then, symbols-actions prevailed, which was explained by the underdevelopment of the legal form, the low level of thinking and language. "Each symbol was a necessary and natural expression of thought and had a sacred-historical meaning. What after that remained only a symbol, then in ancient times it was the very matter of action or content."

Numerous examples of legal symbols can be found in ancient law, and some of them are mentioned in the Old Testament: “Before there was such a custom in Israel during the ransom and exchange to confirm a case: one took off his boot and gave it to another, and this was the testimony of Israel. "

In ancient Rome, the symbolic rite of acquiring property - "copper and scales" was widely known. In the presence of five witnesses - adult full citizens and one more - a sixth, holding the scales, the acquirer touched the acquired property with his hand, simultaneously hitting the scales with a piece of copper or one coin in the other hand, and then immediately handed the copper to the expropriator of the property (seller).

Apparently, in even more distant times, when money was measured by weight, this rite was not formal (symbolic), but was an actual act of sale and purchase.

A peculiar rite of determining grain for a killed dog existed among the Anglo-Saxon peasants. If a dog was killed, then it was necessary to hang it by the tail so that it touched the ground with its nose, and sprinkle wheat on it until the grain completely covered the dog. At the time of the birth of land ownership, a block of land was brought to the court and the litigants entered into a struggle over it.

With the development of legal systems, the improvement of the legal form, symbolic actions gave way to legal concepts, constructions, terminology.

Legal presumption - an assumption (in the field of law or only in connection with the law) about the presence or absence of certain facts based on the connection between the alleged facts and the facts in hand, and confirmed by previous experience.

An essential feature of a presumption is its presumptive nature. Presumptions are not credible generalizations, but probable generalizations. However, the degree of their probability is very high and it is based on the connection between objects and phenomena of the objective world and the recurrence of everyday life processes.

The role of presumptions in law is great, and it would be wrong to see in them only a means of legal technique.

Some general legal presumptions have acquired the significance of legal principles: presumption of knowledge of the law; the presumption of the integrity of the citizen, the presumption of innocence of the accused, etc.

Only irrefutable presumptions can be attributed to the means of legislative technique. By their nature, they also have a probable nature and, in principle, could be refuted, but the law excludes the possibility of refuting them.

So, in accordance with Art. 20 of the Criminal Code of the Russian Federation, persons who have reached the age of sixteen at the time of the commission of a crime are subject to criminal liability, and for some types of crimes (grave and especially grave and some others) - from the age of fourteen.

This norm is based on the presumption of a lack of understanding of the public danger of his act by a person who has not reached the age at the time of the commission of a crime, after which criminal liability is possible. This presumption is irrefutable from the point of view of its legal significance. This means that even if for some reason (early mental development, for example) the juvenile offender realized the social danger of his act, he still will not be prosecuted, since the law does not establish such a possibility. The presumption in this case will not be refuted, its refutation has absolutely no legal significance and meaning.

Similar, as a technical and legal method, is the presumption of incapacity of a person who has not reached a certain age in civil law.

Fictions are a very original device of legislative technique.

Legal fiction - a non-existent provision, recognized by the legislation as existing and which, by virtue of this, has become generally binding.

Fictions are deliberately untrue statements. However, they are widely used in various fields of knowledge. Once enshrined in legislation, fiction becomes legal (legal).

Legal fictions were used already in ancient legal systems. Such, in particular, was the fiction of Roman law on the recognition "by fiction" of a foreigner as a Roman citizen if he acted as a plaintiff or defendant in civil transactions.

Fictions are also known to domestic law. So, part 3 of Art. 45 of the Civil Code of the Russian Federation establishes: "The day of death of a citizen declared deceased is the day on which a court decision enters into force on declaring him dead."

Is it true that the day of death of a citizen is considered the day of the entry into force of a court decision declaring him dead?

Of course not, because it does not correspond to reality. Moreover, it is safe to say that it is not even likely. And if sometimes the day the court decision comes into legal force may coincide with the day of the actual death of a citizen, then this will be a completely random coincidence.

Consequently, the norm establishes a position that is deliberately devoid of truth, i.e. is recognized as existing that which in fact does not exist.

Fictitious provisions are also enshrined in Art. 42 of the Civil Code of the Russian Federation, establishing the time of the beginning of the unknown absence of a person, in Art. 118 of the Code of Civil Procedure of the Russian Federation, which determines that in the absence of a message to the court by the persons participating in the case about the change of their address during the proceedings, the summons is sent to them at the last place of residence known to the court and is considered delivered, at least the addressee no longer lives at this address and is not.

The provision of criminal legislation, by virtue of which a person's conviction is recognized as non-existent, if it is removed or canceled in accordance with the procedure established by law, etc., is also fictitious.

The need for fictions in domestic law and in other legal systems is due to the fact that they bring clarity and certainty to the regulation of social relations, to the legal status of an individual.

Recognition of a citizen as missing, deceased, unconvicted and other similar circumstances are legal facts associated with the emergence, change or termination of subjective rights and legal obligations. And any uncertainty in their presence or absence is unacceptable. Therefore, the fictitious legislative establishment and consolidation of such provisions is not only justified, but also necessary in the legal system.

  • Language of law / ed. A. S. Pigolkina. M., 1990.S. 29.
  • Pakhman S.V. About the modern movement in the science of law. SPb., 1882.S. 67.
  • Efimov V.V. Dogma of Roman law. SPb., 1897.S. 19.
  • Moroshkin F.O. On the continuing education of legislation. M., 1832.S. 128.
  • Old Testament. The Book of Ruth, 4.7.
  • Feuchtwanger L. Sons // Feuchtwanger L. Sobr. cit .: in 12 volumes, vol. 8, Moscow, 1966, p. 495.
  • Post A.G. The beginnings of state and legal relations. M., 1901, p. 13.

E.O. CHINARYAN, Candidate of Legal Sciences, Associate Professor of the Department of Family and Juvenile Law of the Russian State Social University The science of legal technology is based on the foundation of a general methodology, based in its totality on the philosophical branches: ontology, epistemology, axiology and logic. At the same time, it has specific features, which are such methods of creating law as novelization, tradition, codification and reception.

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UDC 340.113.1

Magazine pages: 3-7

E.O. CHINARYAN,

PhD in Law, Associate Professor of the Department of Family and Juvenile Law of the Russian State Social University

The science of legal technology is based on the foundation of a general methodology, based in its totality on philosophical branches: ontology, epistemology, axiology and logic. At the same time, it has specific features, which are such methods of creating law as novelization, tradition, codification and reception.

Key words: philosophy of law, methodology of lawmaking, methods of legislative technique.

Legislative techniques

The science of legal techniques relies on the foundation of common methodology, based on a set of philosophical branches: ontology, gnosiology, axiology and logic. At the same time, it is distinguished by the use of such methods of lawmaking as novelization, tradition, codification and reception.

Keywords: legal philosophy, lawmaking methodology, legislative techniques.

It is indisputable that without general scientific concepts of lawmaking, which summarize the results of the abstractive work of thinking, not a single branch of legal science can fruitfully develop questions of its special area of ​​knowledge. However, although the role of general philosophical concepts is enormous, they, of course, cannot replace the study of legal reality with other methods, which, in comparison with them, are of a more specialized nature and which concretize the dialectical method in the process of application.

The methods of cognition can be classified into several types. The most important is the allocation of empirical and non-empirical methods. The most important non-empirical method is undoubtedly the philosophical method. In the concepts of philosophy of law, developed from the standpoint of jurisprudence, with all their differences, as a rule, legal directions of research dominate. The philosophical profile of law is due to the need for its philosophical understanding. Like general philosophy, philosophy of law has its own branches: ontology, epistemology, axiology and logic.

Legal ontology determines the nature (essence, being) of law. From an ontological standpoint, the extremely wide scope of the concept of "legal norm" deserves attention. We are talking about a qualitative change in the role and content of the norm "in the general direction of transforming the relationship between law and power, juridizing the meaning and essence of official rule-making in the framework of the socio-historical process of transition from absolutism, authoritarianism and totalitarianism to the rule of law and legal statehood."

The leading idea of ​​legal epistemology is a cognitive attitude to current law, an attempt at a theoretical (philosophical, legal, scientific) understanding of its nature, role and purpose. The epistemological approach makes it possible to identify the correlation and difference between the formation of law, which is objective by its nature, and the subjective, power-willed process of creating a law; interpretation of the problem of the generally binding nature of the law, its provision with state protection.

Legal axiology determines what values ​​are legal, that is, what values ​​the law should implement, what is their nature, relationship. In legal axiology, we are talking about assessing the legal meaning and significance of law and the state, about their legal quality and compliance with the goals and requirements of law. Law and the state are valuable only as legal phenomena and are significant to the extent that they are involved in law, express and implement the goal of law and are legal.

The importance of the axiological method is great for lawmaking and for legal technique, since in the course of lawmaking it is necessary to determine the values ​​(goals) that the law is designed to implement. In addition, the axiological method is important for determining the effectiveness of law and its change, which, in turn, is one of the types of creation of law.

The logical method has several manifestations. First, it is dialectical logic that reveals the laws of the cognition process: the stages of cognition of a single fact, phenomenon; generalizations; cognition of the internal laws on which judgments are expressed, to what extent the investigated corresponds to its general form. Secondly, formal logic, which studies the forms of thought - concepts, judgments, inferences - from the side of their logical structure. Thanks to formal logic, it is possible to determine the structure of concepts, the relationship between them, on the basis of which the interpretation of certain terms is given and it is possible to develop a certain conceptual-categorical apparatus.

In addition to philosophical methods that study law in itself and answer the questions: what is law (ontology), how law is cognized (epistemology) and what is the value of law (axiology), dogmatic, normative and sociological methods study law as a real phenomenon that exists at a given time, as well as the methods, rules, techniques of its creation, interpretation, classification, systematization, commenting, etc. We are talking about the ideological and normative content of law and its normative structure, which obey their specific laws and have a special logical status ...

The dogmatic method is used to understand the specific content of law, its semantic meaning. Each rule of law is both an essence and a phenomenon; it expresses a single meaning, or a systematized collection of meanings, linked in such a way that they form a whole. For interpretation, it is not enough to establish the essence of individual signs or any aggregates, since a semantic phenomenon is at the same time a kind of semantic whole, in which each meaning is in a certain connection with other meanings that influence each other. For the formation of a complex unity of the rule of law, it is necessary that several meanings be interconnected in a certain way. Otherwise, only a pile of meanings arises. The dogmatic method is used to cognize a certain aspect, an element of law as a normative phenomenon, to cognize the content, study concepts and establish the thought (idea) contained in the norm (hermeutics). The subject for the study of which the dogmatic method is used are signs that express the ideological and conceptual content of a legal norm, the interpretation, within the framework of the norm itself, of those elements that form it.

The normative method consists in identifying and highlighting individual features and elements in the rule of law by comparing, analyzing and other logical operations. He establishes that each norm consists of a hypothesis, a disposition, a sanction, and that only the connection of these of its constituent parts ensures the realization of the position and the fulfillment of a social function. With the help of the normative method, in a logical way, general legal concepts are separated from specific ones, a broad concept is created that includes this general and specific in the part that is a common part for them. The normative method also serves to arrange concepts in accordance with the degree of their generalization, as well as to systematically classify legal norms in accordance with their content.

The ratio of theoretical and practical activities is of particular importance in the creation of law. This is primarily due to the fact that law reflects objective reality. The sociological method of cognition is used in different areas of law: in the field of studying the social side of law by observing social phenomena and processes and within the framework of the dogmatic-normative method, when it is used in the field of legal technology in the creation and application of law. The sociological method explores the relationship between society and law, the impact society has on law, its content and functioning, as well as the impact of law on society, in the course of which law focuses on a certain form of behavior of members of society. The sociological method makes it possible to establish which interests are in a state of conflict, which interests need to be protected, helps to reveal the causal links between human behavior and the achievement of the goals of law, the dependence of these links on the linguistic and logical structures of the rule of law. Law itself is an expression of social reality. In the process of creating law, the legislator transforms ordinary reality into legal phenomena suitable for the implementation of the function of law. This process, requiring professional means, methods, methods and techniques, has gradually improved over the long history of law, but reality is always richer than its reflection in law, and therefore requires tireless close attention. The social interests protected by the norm cannot be identified in a purely logical way, since they are social phenomena. From a logical point of view, it makes no difference what interest the given norm protects. Therefore, the logical method is replaced by the sociological method of studying the rule of law.

However, along with this, it is necessary to use the logical method. Law, as noted, consists of elements (norms, concepts), between which there are logical connections. They allow you to understand the meaning of the rule and law in general. The legislator should constantly remember that his creation must be correctly understood and interpreted in the process of implementation.

Each general or special method is not a mechanical combination of rules, principles of cognition, but a holistic education - the methodology of law. The methodology combines all types of methods used for theoretical and cognitive or cognitive purposes. However, it is obvious that the methods of cognition differ from the practical methods of transformation. This circumstance underlies the separation of the methodology of cognition of law and the methodology of the practical creation of law, which is called legal technology, and its methods, respectively, legal and technical methods (or methods of legal technology). The fact is that in the process of cognizing the world, mankind has accumulated various knowledge, depending on which the methods of cognition are determined. Philosophical knowledge determines philosophical methods, special knowledge - special methods. The former are of fundamental importance and widespread use, while the latter are of a narrower, subsidiary significance. The relationship between them is the relationship between the general and the particular. General methods provide the key to understanding the world as a whole, private methods (techniques) - to understanding individual aspects and disclosing specific patterns.

The general categories of lawmaking that make up its methodology do not exhaust the entire complexity of lawmaking. They interact with narrower special categories - methodological, which reveal how, in principle, social life and social relations are recreated in the legal norm, how the legal norm relates to the reality and worldview of the legislator. The methods of lawmaking are inseparable from the general methodology, and this is quite understandable, since the legislative method is the practical implementation of the goals and objectives of the methodology. The relationship between the methodology and methodology of lawmaking is nothing more than the relationship between content and form, due to the fact that legislative reality is a simultaneous process of searching for legal content and an adequate legal form. On this dialectic of content and form, the well-known history of lawmaking is based on four methods of creating law: novelization, tradition, reception and codification.

Novelization (from the Roman legislative novellae) as a method is associated with the creation of fragmentary laws, new both in content and in form. This method is based on the composition of new laws due to their absence or the impossibility of using existing legislation. The creation of laws takes place on the basis of a deep preliminary study of social relations as a subject of legal reflection, generalization of the practice of applying law, morality and customs. Formed on the basis of novelization, the law must be the most perfect and adapted to solve the problems that put forward the needs of social development before the law. This is its value. However, the lack of prior experience and practice of applying the new law makes its effectiveness problematic.

Tradition is associated with continuity in the development of law. With tradition, the preservation of old legal forms occurs with a complete change in content in accordance with the needs of the changed historical conditions. Interpretation and judicial precedent play a huge role in adapting the old law to the new realities. It is they who distort the original content of the old laws, interpret them in their own way, and all this leads to the fact that from the old law remains a legislative fiction, designed to legalize and legitimize the fruits of interpretation. Due to the interdependence and organic unity of content and form, new content requires a new form.

The essence of the reception method is reduced to borrowing the legislation of another state (legislative compilation). The use of reception is possible due to the commonality of the historical development of states, in which it is advisable, in order to save manpower and resources, to mechanically transfer the action of the legal laws of one state to the territory of other states. The method of reception, despite the relative ease and simplicity of implementation, is unproductive, since it does not allow the law to reflect the socio-economic, national and other characteristics of a particular country.

Codification as a legislative method consists in a systematic reassessment and processing of existing legislative material in order to create a new law. On the basis of codification, a new source of law is created, replacing all previous codified legislation. Codification lawmaking consists in revising all previous legislation, in revising the sources of current law as a whole or in a particular branch, in harmonizing them with each other. Often, as a result of codification, the entire legal system changes, the old legislation adapts to new historical conditions.

The process of creating law is a very complex process, therefore, in practice, individual methods intersect and complement each other in a dialectical combination of two, three, and sometimes all four methods and their varieties, with one sometimes acting as a technical device for the implementation of the other.

The choice of a specific legislative method has methodological significance for solving all technical issues of lawmaking. So, codification as a legislative method in relation to the methodology of lawmaking as a whole plays the role of a methodology, but codification itself acts as a methodology in relation to technical, technological methods included in the codification legislative method.

The methods of legal technique are not directly contained in the theoretical and cognitive methods; they must be creatively derived from scientific laws. Such a creative process often means the discovery of something new that cannot be implemented, since the implementation technique has not yet been developed. "The creative significance of technology is determined by the fact that it is the development of science down to the details that are important for the practical activities of people." Each specific science has its own method, the specificity of which is determined by the research subject of this science. The method of legislation technique is a private scientific one, therefore its specific features are determined by the nature of the subject, and first of all by the goals and tasks facing the legal technique. The subject of the study of legislative technique is the form of legislation, its presentation. Therefore, the source of the study of the form of legislation and the development of the rules of legislative technique is the study of the shortcomings of the legislation identified during its application. According to A. Vinavera, the identified shortcomings must go through two more stages of processing before becoming material for the development of legislative techniques: “II. We classify error samples obtained as a result of the previous operation according to certain types and types. As a result of such a classification, a rather complete diagram of subtle and dangerous places will be obtained from a motley picture of individual blunders, errors and ambiguities. III. Typical mistakes are presented in a coherent scheme, which can be used to develop the rules of legislative techniques. "

Thus, the private scientific method is a set of methods for studying the form of criminal legislation, determined by the tasks of the technique of criminal law. The research methods that make up the method include:

1) the accumulation, systematization and generalization of the shortcomings of the criminal legislation revealed during its application;

2) analysis of historical monuments of Russian and foreign criminal legislation and legislative practice;

3) study of the achievements of the legislative technique of foreign legal systems of our time;

4) the study of the achievements of legal science in the field of legislative technology and the identification of trends in the development of forms of criminal law.

The combination of the above research methods forms private scientific methods or their own method of criminal law techniques, which ensures the development of new technical means.

At present, the attention of lawyers to the logical-semantic, logical-structural analysis of regulatory prescriptions, legislative and law enforcement acts has noticeably increased. The end result of such a study comes down to the development of techniques, methods of formalizing regulatory material and the use of modern computer technology to solve legal problems in law enforcement. Considering specific sociological methods as a means of overcoming the one-sidedness of the logical-normative and logical-dogmatic methods, scientists conducted a number of fruitful studies, during which the epistemological nature of these methods was revealed, the specificity of their application in law was revealed, and the subject of specific sociological research was determined. The role of mathematical, cybernetic methods and automation tools for searching legal information, processing materials of social and legal statistics, modeling the phenomena and processes under consideration is becoming more significant. Since the 60s of the twentieth century, legal scholars have been focusing on the problems of applying the systemic-structural approach to understanding legal phenomena. Based on the specifics of systemic connections inherent in the content and form of legal phenomena, two types of systems are distinguished: summative (a simple conglomerate of elements) and organic (interaction of parts leading to the formation of a qualitatively new phenomenon), which, in turn, are differentiated into syntactic and hierarchical chemical.

The system of methods of scientific and practical (specifically sociological) knowledge of legal phenomena and processes is not limited to the named methods. The fruitful solution of questions about the epistemological possibilities of the methods of legal science should correspond to the modern level of scientific and technological progress. Here special studies are needed to: 1) establish the correspondence of the method of legal science to its subject and level of theoretical knowledge; 2) determining the range of general and particular methods of cognition of the subject of legal science; 3) concretization of general and special methods in relation to the specifics of the research; 4) the formation of communication and the limits of the use of general and private methods in the study of specific legal phenomena and processes. It seems that only such an approach will make it possible to develop a system of methods of scientific knowledge. The process of developing this system is practically as endless as the process of developing theoretical knowledge about legal phenomena.

Bibliography

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2 See: V.M. Syrykh Method of legal science: basic elements, structure. - M., 1980. C. 17-18, 519-520.

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6 See: A. Vinaver Legislative Technique // Law and Life. 1926. No. 2-3. S. 6-7.

7 See: I.I. Karpets. Punishment: social, legal and criminological problems. - M., 1973; Kudryavtsev V.N. Causes of offenses. - M., 1976; He's the same. Law and behavior. - M., 1978; Yakovlev A.M. Crime and Social Psychology. - M., 1971; He's the same. The subject of social and legal research // Soviet state and law. 1970. No. 8; Yavich L.S. Sociology and Law // Jurisprudence. 1970. No. 4.

8 See: Legal information / Ed. A.F. Shebanov. - M., 1974; Pashkevichus V.A. Application of mathematical and cybernetic means in legal research. - Vilnius, 1974; O.A. Gavrilov Application of mathematical methods in legal science // Soviet state and law. 1980. No. 2.

9 See: V.M. Chkhikvadze, Ts.A. Yampolskaya. On the system of Soviet law // Soviet state and law. 1967. No. 9; Alekseev S.S. The structure of Soviet law. - M., 1975; Kudryavtsev V.N. Causality in criminology. - M., 1968; Kerimov D.A. Philosophical problems of law. - M., 1972; B.L. Nazarov Socialist law in the system of social relations. - M., 1976.

10 See: V.M. Syrykh General principles of the internal organization of legal phenomena as systems of organic and summative type // Uchen. tr. VNIISZ. 1973. Issue. 1.S. 35-46.

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CHAPTER 1. SUBJECT AND METHOD OF THE TRAINING COURSE "LEGISLATIVE TECHNIQUE"

Before proceeding directly to the study of legislative technology, it is necessary to first determine what the training course includes. For, unfortunately, in our country there is still no common opinion on this issue. Often, the very need to study the techniques and methods of creating, improving and systematizing regulatory legal acts is questioned. Legislative technique is a completely new academic subject, despite the fact that in some legal universities it is already included in the curriculum, the traditions of its study have not yet developed, the range of topics, their content, and the method of study remain a controversial issue. There is not even a single point of view about its name (it is called "Legislative technique", "Legal technique", "Legal technique", etc.). The range of issues studied, the methodology of their study, the place of the course in legal science, its relationship with other disciplines are not defined. It is not formulated who should study this course, what the preliminary training of trainees should be All these gaps need to be filled

A correct and accurate definition of the essence of legislative technology and its role in legal regulation is the key to completeness, consistency and accuracy of research in this area and training in legislative technology.

1.1. The value of the training course "Legislative Technique

The course "Legislative Technique" is one of the newest in the domestic system of higher education. For a long time, the legislative technique in our country was practically not studied in the course of training in higher educational institutions. The need to study the methodology for creating a system of lawmaking was practically not even mentioned. Only in recent years, in some universities in Russia, the teaching of the training course "Legislative Technique" has begun.

There are many reasons for this disdain for this vital legal discipline. The result was insufficient professionalism of domestic legislators, lack of systemic knowledge about the technique of writing laws, insufficient understanding of the essence, meaning and basic rules for creating normative legal acts and systematization of legislation and, as a consequence, imperfection of the domestic system of legal regulation. It is not a secret for any of the legal scholars that modern Russian legislation suffers from many shortcomings, which are the result of purely technical flaws that complicate the process of legislative regulation of the lack of professional training of participants in the process of creating a system of normative legal acts.

The current Russian legislation, unfortunately, remains largely unsystematic, contradictory, incomplete, vague, declarative (or, on the contrary, casuistic), inaccessible for full awareness. It also suffers from the lack of legal mechanisms for the effective implementation of the instructions contained in it, gaps and collisions between regulatory and legal acts of various levels. In the system of domestic legislation, a lot of acts continue to operate (especially many - among bylaws) of the Soviet era, which have lost their relevance and regulatory necessity in the new socio - economic situation, and have become contrary to objective social reality. Their replacement with new legal regulations is far from always timely. And the normative legal acts that are being created are quite often anti-legal in nature, their action contradicts the defining interests of public life and development. In addition, legislation is often incomprehensible or vague and cannot be fully used to accurately and uniformly define their behavior by those to whom its requirements are addressed. Gaps in legislation, contradictions between normative legal acts issued at different times and by different bodies often confuse the subjects of public relations. The situation is aggravated by the ever-increasing pace of legislative activity (especially of the executive authorities, which issue by-laws in colossal volumes).

All this leads to a significant decrease in the effectiveness of the new system of law, to failures of legal reform, to disappointment in it, to unwillingness (because of the impossibility) to live according to the law, to such a sad phenomenon of modern Russian society as legal nihilism. The ever-growing volume of normative material can simply confuse even a legally competent participant in legal relations and greatly complicate his lawful behavior - to say nothing of a common man in the street. The abundance of complex and constantly changing legal regulations makes it very difficult to assimilate the requirements contained in them (as well as in novels, additions and changes) not only by ordinary citizens, but also by professional lawyers, as well as, which is especially bad and often tragic, by officials. The situation is further aggravated by the incompleteness of legal reform, when a number of institutions, sub-branches and, even, branches of law have not yet been built, the current legislation does not sufficiently comprehensively and systematically reflect all of the legal norms included in them. But public relations do not stand still, they are dynamically progressively developing, constantly causing the need to create new normative legal acts and their formations, complicating the system of legislation.

It can be said with good reason that the ill-conceivedness, unsystematic nature (often turning into causality) of laws and by-laws, the lack of a scientific basis for the activities of the participants in the legislative process have largely caused the fact that in Russia it is becoming more and more difficult to live by the law, that there are more and more opportunities for the arbitrariness and abuse of officials, what is increasingly unstable and insecure feels like a law-abiding person. Many researchers note with bitter sarcasm that the Soviet legislation, which is so actively criticized, subjected (both deservedly and undeservedly) to attacks and criticism, was much more professionally created from a technical point of view and was distinguished by much greater efficiency and viability than the one that replaced it.

In these conditions, the professional basis of the lawmakers' activities acquires particular importance, which would allow them to optimize their work and help improve the quality of the normative legal acts being created (both individually and in the system). At first glance, it may seem that the main thing in a normative legal act is its content, the form of presentation is secondary. Unfortunately, such views are common not only for ordinary people, but also for lawyers and, even, which is especially tragic, for participants in rule-making activities. This opinion is fundamentally wrong. In a normative legal act, both its content and the form and way of presenting its text are equally significant, which largely determine its effectiveness. It's not enough to know what to prescribe what variant of behavior to define as obligatory, you need to be able to do this, to know how to prescribe , in what form, what means and methods to use in this case. It is not enough just to understand the goals of the legal impact on public relations. It is equally important to express this prescription in a textual form accurately, fully, clearly and in an executable form, to ensure logical and semantic unity between the essence of the prescription and the text of the normative legal act serving to express it. Scientific support of this is the main task of the science of legislative technology. In-depth study of the problems of lawmaking, systematization of knowledge about this process, about the factors determining it, about the specifics of the presentation of legal norms in articles of normative legal acts and is the purpose of studying the course "Legislative technology". Getting an idea of ​​the system for creating legislation allows you to more fully reveal the essence of legislative regulation and more accurately understand the meaning and ways of achieving law and order.

Insufficient attention to the formulation of legal prescriptions inevitably leads in practice to unsystematic, cumbersome, vague, declarative, contradictory and unclear texts of normative legal acts and, ultimately, to difficulties in legal regulation, to the ineffectiveness of such regulation.

It is no coincidence that in the scientific legal literature, the idea of ​​the need to change the attitude towards the design of normative legal acts, the need for the scientific development of the technique of their creation and systematization, the comprehensive teaching of legislative technology as mandatory for a specialist - a legal scholar of legal discipline, has been quite persistently lately. Moreover, attempts (and not unsuccessful ones) are being made to consolidate the well-known rules for formalizing law-making decisions in legislation, using scientific developments and foreign experience.

All these circumstances determine the need for a systematic and regular study of a set of principles, techniques and methods for creating and improving the system of normative legal acts.

1.2. The subject and content of the training course "Legislative Technique"

The main subject of this curriculum is legislative technology as a science, i.e. a system of knowledge about the techniques, methods, methods, rules and principles of creating laws and by-laws and their systematization ... In the course of studying this training course, future specialists should get a clear idea of ​​the existing methods and means of lawmaking technology, the methods of creating a system of law as a single regulatory mechanism, the theoretical foundations of this process and the methods of their implementation. In the system of legal knowledge, legislative technique occupies a very important place, characterizing the essence and functional purpose of the system of legislation as a mechanism for regulating social relations. Studying the legislative technique, the jurist gets the opportunity to study the mechanism for creating normative legal acts and the system of legislation in general and making changes to the legislative mechanism for regulating public relations. All this helps to understand the genesis of laws, their organic connection with objective social reality, their role and place in the life of society.

In addition, in the course of studying the course "Legislative Technique", students should study the system of legal norms governing the process of forming a unified system of legislation.

In the course of studying legislative technique, the following main issues are investigated:

· Fundamental principles and rules for the creation of normative - legal acts;

· Main types and forms of regulatory legal acts;

· The main stages of the legislative process;

· The meaning and rules for the preparation of draft laws and their examination;

· The main social factors influencing the rule-making process;

· Forms of people's participation in lawmaking and the specifics of this process;

· Language, logic and style of laws and regulations;

· The main methods of creating normative legal acts, the techniques used in this case, methods, as well as the principles that determine this process;

· Logical system and structure of legislative acts;

· The main processes accompanying the creation and change of the legislative system;

· The concept and meaning and features of the legal culture of legislators and other participants in the legislative process;

· Meaning, basic forms, methods and ways of systematizing the system of legislation.

It would be wrong to believe that the study of legislative techniques is necessary only for future participants in the work on the system of normative legal acts, for potential legislators. The subject of legislative technology covers a huge range of legal phenomena. Lawmaking, activities related to the creation or amendment of regulatory legal acts are embodied in the activities of a huge number of people and organizations. Lawyers may face the need to know the rules for the formulation, arrangement, formal expression and systematization of normative legal prescriptions in the course of work in the spheres of life, seemingly not directly related to the work of legislative bodies of state power. Practically all civil servants, judges, corporate lawyers, legal scholars, as well as many other subjects need knowledge of legislative techniques. Lawmaking, activities to create and improve the system of normative legal acts require the direct or indirect participation of a huge number of people, often not connected at all with jurisprudence. And therefore, modern society needs a large number of specialists in the field of legislative technology, capable of effectively and professionally participating in the improvement of legislation at any time and in any form.

Systematic training of people acting as participants in the legislative process (and there are a lot of such subjects - both those who directly work on the creation and adoption of laws and by-laws, and those who help them in various forms), the principles, forms and methods of creating and systematizing regulatory legal acts, the creation and improvement of legislation is necessary. It will affect the state, efficiency, legal nature and, which is very important, the consistency of the array of normative legal acts, very positively. However, for lawyers whose work is related to the implementation of legislative requirements, such training will also be very useful.

There are a lot of arguments in favor of organizing the systematic development of legislative techniques. The mastery of a complex of well-known rules of lawmaking by a wide circle of lawyers makes it possible to increase the professionalism of domestic legislators, introduce uniform principles into their activities, and unify it. In addition, the assimilation of this subject can be of great service in terms of improving professional qualities and for persons formulating corporate norms (charters, various internal rules) regulating the behavior of members of various communities, both having the status of a legal entity and having an informal nature. Studying the principles, rules, techniques and methods of forming and improving the system of legislation makes it possible to revive scientific research in this area - such training creates a large personnel reserve for replenishing the ranks of researchers dealing with the problems of legislative technology, giving them basic knowledge. And the teachers themselves, in one way or another, will strive to supplement and improve the scientific material available to them through analytical work - at least based on the desire to improve their work.

In connection with the above, it seems very useful, for example, to include in the program of higher legal education such a subject as legislative technology (however, another name is also possible). At the moment, in some higher educational institutions of Russia, attempts are being made (and, it happens, not unsuccessful) to introduce the study of techniques and methods of creating and systematizing regulatory legal acts into the number of taught disciplines. However, unfortunately, usually, legislative technique is studied as an optional discipline, the state educational standard does not contain instructions on the compulsory study of it by future legal scholars.

In addition, it may be useful to introduce an advanced course in legislative techniques as part of special training for certain categories of civil servants. For example, this is highly advisable for employees of legal departments of ministries and departments that are the most active participants in lawmaking activities, for employees of the Presidential Administration of Russia, the apparatus of the Government of Russia, parliamentary structures and similar civil servants of the constituent entities of the Federation. In addition, special training of specialists - experts in the field of legislative technology is possible.

The introduction of a special purposeful study of legislative techniques will provide invaluable assistance in overcoming almost all the problems of modern Russian legislation and increasing the professionalism of domestic lawyers, as well as provide invaluable assistance in the further development of domestic legal science.

1.3. Goals and objectives of the training course "Legislative Technique"

The purpose of studying the discipline is to understand the role of lawmaking in the process of legal relations, in getting future specialists - legal scholars of the idea of ​​the rules for the formulation of regulatory legal acts and the formation of an integral system of legislation, in the assimilation of knowledge about a single integral system of writing laws and by-laws, as well as their systematization ...

The need for special training of people directly involved in lawmaking, for inclusion in the curriculum of law schools of a special course on legislative techniques is currently indisputable.In modern conditions, when social relations regulated by law are distinguished by extraordinary complexity, when the dynamics of social development necessitates constant improvement of the system of lawmaking, specialists involved in the direct writing of laws and by-laws need system knowledge about the features of the rule-making process, about the techniques, methods and methods of legislative activity, as well as about its basic principles and rules. Their professionalism, their special training are a prerequisite for the creation of an effective system of legislation, understandable and suitable for full and effective legal regulation of normative legal acts.

The professionalism of the participants in the rule-making activity presupposes:

They have systemic knowledge in the field of law (best of all - legal education), possession of legal technology;

The high level of their legal culture, the presence of such a specific form as the culture of lawmaking;

Good knowledge of the subject of legal regulation, that is, possession of information that allows you to accurately and fully determine the objective necessity in a particular area of ​​public relations;

Possession of technical techniques for creating normative and legal regulations, techniques, methods and ways of presenting the norms of law in the text of normative legal acts;

Proficiency in the professional language of lawmaking, the ability to use the logic and style of the law;

Knowledge of the technique of systematizing normative material, so to speak, “systemic feeling”, constant striving to systematize existing norms (however, this “systemic feeling” is necessary for almost any lawyer);

Efficiency, punctuality and accuracy, because rule-making is hard, painstaking and monotonous work that does not allow relaxation and even the smallest mistakes and shortcomings.

The professionalism of rule-makers, in addition, invariably presupposes the skills of cooperation between the participants in rule-making activities with specialists in a wide variety of fields of knowledge, the existence of a certain methodology for such cooperation. The officials themselves, who formally develop and adopt normative legal acts, do not completely determine the process of lawmaking, the decisive role belongs to those who draw up the drafts of these acts. These are professional lawyers, economists, sociologists, political scientists and even specially attracted experts in the field of natural sciences. One person is not able to understand at the proper level in all issues subject to legal regulation, therefore, entire teams of specialists are working on drafts of normative legal acts, each of whom does his own job. The task of the legal experts is to organize the unity and complex nature of their work, and this is also a question of their professionalism.

Professionalism, a regular scientific basis for the activities of participants in the legislative process are designed to ensure the legal nature of their activities, the compliance of legislation as a result of this activity with the interests of society, conditioned by the interests of social life. Normative legal acts issued by specialists with special training act as a factor contributing to the achievement of public good, progressive positive social development. The method of cognition of the true meaning of the norms of law to be embodied in legislation is also included in the subject of the course "Legislative Technique".

It largely depends on the special training of the rule-makers and the effectiveness of the legislation they create. Comprehensibility, clarity and clarity of the prescriptions expressed in regulatory legal acts, the possibility of their use, determining the reality of their impact on human behavior, are achievable provided the authors possess special techniques for imparting these qualities to laws and bylaws. In addition, the realism and enforceability of the prescriptions, the availability of a mechanism for their provision - all this also depends on the special training of the subjects of legislative activity.

In addition, the professionalism of rule-makers is a guarantee of the constitutionality of rule-making, the unity and consistency of the legislative system, full and unambiguous regulation by legislation and by-laws of all those social relations that, by virtue of their importance, are subject to such regulation.

The main objectives of the training course include:

- the formation, development and consolidation of the trainees of new legal thinking, general, legal and legislative culture, high professionalism, as well as other qualities required by a lawyer for competent actions in modern conditions when creating a regulatory and regulatory system;

- understanding by students of the role of legislative regulation of social relations in the life of society and the need to bring a scientific basis for the process of forming a system of legislation;

- assimilation of the basic principles, techniques and methods of the lawmaking process.

- mastering the achievements of leading domestic and foreign lawyers in the field of legislative process and legislative technique.

Knowledge in the field of legislative technology makes it possible to more effectively implement regulatory legal acts. Possession of the technique of formulating legal prescriptions and translating them into textual form allows one to correctly interpret laws and by-laws, immediately grasping their meaning. A correct understanding of the essence of a legal regulation is ensured, among other things, by knowledge of legislative technology.

Knowledge of legislative technique is essential for any specialist wishing to work in the field of jurisprudence. Studying the course of legislative technique allows you to more fully and clearly understand the essence and structure of the regulatory - legal system, the main factors influencing its formation, functioning and changes, to study the dynamics of the development of the legal system and its dependence on the development of social relations. The study of legislative techniques makes it possible to understand the main factors that determine the genesis of legislation, to penetrate into the essence of the normative - regulatory impact on human behavior and on social relations in general.

Knowledge of the techniques and methods, the study of which is included in the course of legislative technique, can be used not only in the course of work on bills and in the creation of by-laws, but also in the creation of systems of corporate norms, that is, regulatory prescriptions operating within the corporation - associations of people created to achieve a common goal, which are the vast majority of legal entities (various internal regulations of organizations, regulatory agreements, etc.). The basic principles of the presentation of normative prescriptions, the basic techniques and methods of their creation and systematization are the same for all types of norms. Very often, even in small commercial organizations, problems arise with the creation of various kinds of internal corporate rules due to the inability of authorized persons and bodies to clearly, clearly and systematically set out these instructions in the text of internal corporate acts. In non-profit organizations (especially political ones), this problem is even more acute. The ability to formulate norms, to prescribe to the participants of public relations a certain variant of behavior is necessary for a specialist in the field of law who intends to take part (in any form) in the regulation of public relations.

The lack of professionalism of the participants in the legislative process is very expensive for the entire system of legal regulation, life and development of society. The inconsistency and inconsistency of legislation, the unconstitutionality of its elements, gaps, the unlawful nature of laws, their contradiction to public interests, incomprehensibility, the impossibility of accurately, fully and unambiguously clarifying the meaning of legal instructions contained in regulatory legal acts, cumbersomeness, casuistry, violation of basic legal principles (constitutional and sectoral) - all these phenomena, destructive for the effectiveness of legal regulation, are largely the result of the unprofessionalism of the authors of normative legal acts.

The professionalism of the legislator is primarily expressed in the possession of legislative techniques, which are necessary for all participants in the legislative process, without exception. It is the professionalization of the activities of the participants in the rule-making process, the acquisition of the necessary skills for creating, changing and improving legislation that is the main goal of the training course "Legislative Technique".

1.4. Methodology of the training course "Legislative Technique"

It should be especially noted the significant specificity of the methodology for studying the course, due to the novelty of science and its applied nature.

The assimilation of the curriculum for the course "Legislative Technique" is ensured through the use of a rich arsenal of didactic means: lectures, seminars, workshops, testing, student's independent work. The latter involves the development of theoretical material (textbooks, scientific monographs, articles on legal topics published in newspapers and magazines), the study of legal documents in preparation for seminars, preparation of scientific reports, writing term papers. Unfortunately, at the moment in our country there is a certain lack of unified complex scientific monographs in the field of legislative technology (at least, those that would be understandable to students and could be used as a scientific and theoretical basis of the educational process). Domestic scientists are mainly limited to the deep and detailed development of individual elements of this science, without creating a unified and comprehensive scientific concept that could be used as a scientific and methodological (and with them regulatory and legal) basis of legislative technology as an academic discipline.

Much better in domestic legal science (and scientific literature) is the situation with the development of practical technologies and techniques in the field of legislative technology. Domestic practitioners - lawmakers have developed quite a lot of practical recommendations on the process of preparing normative - legal acts. Unfortunately, while most of these practical developments and conclusions, being created as a result of an empirical study of rule-making practice, are casual in nature and, as a result, suffer from fragmentation, lack of completeness and lack of consistency. Such practical developments are in dire need of analysis, scientific and practical substantiation and generalization, which would make it possible to single out and study their essence, the fundamental principles that unite them.

The study of the course "Legislative technique" by students of law faculties of universities seems appropriate after they study the course "Theory of State and Law" and "Constitutional Law of Russia" and the fundamental branch legal disciplines. Perhaps a more in-depth study of legislative technology as a special course by students of state and legal specialization, taking into account the experience of lawmaking in other states after studying the course "Constitutional Law of Foreign Countries"

The basis for studying the subject, taking into account the above-mentioned features, should be a course of lectures. The lecture course is the main form of students gaining knowledge of this training course. During the lectures, students should receive not only information about the rules, techniques and methods of lawmaking, but also their scientific justification, information about various scientific views on certain problems. It is recommended that during the preparation and conduct of lectures, more actively use practical examples from the current Russian legislation.

The procedure for conducting seminars, practical and individual lessons is subject to development in the corresponding department plans and private methods. As a feature of the methodology of the training course "Legislative Technique", one can single out the special role of practical training, which is due not only to the creative - theoretical, but also the applied nature of the study of legislative technique. In the course of studying this course, it is necessary to use the method of scientific and educational modeling as widely as possible. In the course of practical classes, students should, under the guidance of a teacher, consolidate the knowledge gained, applying it in the course of creating models of concepts of lawmaking, normative legal acts, and their systematization. If possible, one should try to stage-by-stage simulate the entire process of lawmaking aimed at the conditional regulation of a certain complex of social relations that need it.

Students should be assigned as assignments to prepare for practical exercises:

Find gaps in existing legislation, identify relationships that require legal regulation;

Determine which acts should regulate these relations, answer the question whether their regulation requires the adoption of a new normative legal act, or whether it will be enough to make changes or additions to existing laws (by-laws);

Model the concept of a future law;

Think over and sketch out the structure and semantic system of the future legislative act;

Analyze the provisions of the current legislation, determine what techniques and methods the legislator used, draw conclusions about the validity of the use of these techniques and methods;

To compose the text of individual articles of the law using links (both to existing and to imagined, planned regulatory legal acts);

As a final task - to instruct to draw up a draft law (in this case, students should be especially encouraged who have drafted regulatory laws and codes).

Such a practical test of the assimilation of the material allows not only to consolidate the acquired knowledge, but also to create among students a creative attitude to the process of legal regulation, and, possibly, to find a solution to existing practical problems.

In the course of practical work, the teacher should pay special attention to the consideration of specific cases of violation of the rules of legislative technique, as well as to the analysis of the causes and consequences of such violations. This makes it possible to more clearly demonstrate to students the effect of the rules and principles of legislative technique, as well as to give students tasks to develop proposals for the practical improvement of both specific normative legal acts and the entire system of domestic legislation. A special practical lesson can be devoted to students' proposals for improving both individual regulatory legal acts and their complexes.

In addition to students, this course can be recommended for study by employees of legal departments of ministries and departments, employees of legislative authorities and other participants in lawmaking. At the same time, the level of their knowledge in the field of law should be taken into account and in this regard, a special program should be developed.

The proposed methodology for studying the course "Legislative Technique" was successfully tested in the course of studying the subject by students of the Moscow Institute of Humanities and Economics as a compulsory discipline in 2003-2007.

CONTROL QUESTIONS:

1. What is the reason for the need to study the legislative technique? Who needs to study it regularly and systematically?

2. What is legislative technique as a curriculum? At what stage of the study of jurisprudence is it possible to study it?

3. What is included in the subject of studying legislative technology? What are the main questions to be explored in this training course?

4. What is the main goal of studying legislative technique? What signs of achievement (or non-achievement) of this goal can be identified?

5. What are the specific features of the methodology for studying legislative techniques?

6. What are the main problems in the study of legislative technology in modern Russia?


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