Коваленко Тетяна Олександрівна

Коваленко Тетяна Олександрівна

д.ю.н.

Тлумачення та застосування норм права

Interpretations and application of law

3 parts:

1. What is law?

2. Interpretation of law.

3. Application.

Exam

Lectures & seminars

Коваленко замість Калашніка ці два тижні.

Law understanding. Праворозуміння law thinking

Concepts, psychology, levels

1. The essence of the term law understanding

2. Phycology of law understanding and it's criteria

3. Levels of law understanding

Law of Ukraine 2011 number 1

Право України 2010 номер 4

Law право

Legislation законодавство

Statue Закон

Right суб'єктивне право

Natural concept

Positivistic

Phycological розуміння людини

Sociological лише в застосуванні

Law understanding - the talent as the understanding of legal reality through the prime of legal theories doctrines concepts. Form of knowledge about the essence, nature and role of law in the regulation of social relations.

Characteristics of law understanding:

1. Specific idea of a person about what law is. This idea is expressed in emotional perception сприйняття of phenomenon that we call law

2. Is rather complicated intellectual activity

3. Belongs to the sphere of subjective. Subject is human. Law belongs to the sphere of objective. So law understanding is impossible to measure. All people are different.

4. Important and separate component in the structure of legal system.

5. Dynamic phenomenon.

6. Historical.

Stages of law understanding

1. Perception

2. Display відображення

3. Interpretation

4. Synthetics узагальнення

5. Systematithaition

6. Nomination of Certain hypotetis and ideas

7. Proving of hypotetis and ideas або спростування

8. Justifying of personal law understanding обґрунтування

Law understanding - The essence of knowledge of a person about what law is, what is its content purpose of its existence value and functions in the society

Value of law understanding.

1. Directly effect the human behavior of a person and forms his/her evaluation of the behavior of other persons in the society.

2. It helps to determine the nature and content of legal theory наповнює юр теорію

3. It helps to form legal practice as the specific field of activity of professional lawyers

Classification of law understanding:

- depending on the subjects:

1. Individual

2. Collective. Groups. Teens. Criminals

3. Social in general

4. Universal. Of a humanity as whole. To basic values like justice equality.

- depending on the nature of professional activity

1. Professional

2. Non-professional

- on mechanism of law understanding formation

1. Rational or logical. Based on studies of a person, specific knowledge.

2. Empirical is based on a personal experience of a person.

3. Emotional based on stereotypes that were formed based on the influence of the environment. Self conscious

Types of law understanding - image of law which reflects the most significant characteristics of law based on ideological positions on the subject of law understanding.

- depending on the attitude to the fundamental Q of philosophy - the correlation of matireal and ideal

1. Materialistic type of law understanding. Legal positivism,

2. Idealistic. Natural, theological

- on the attitude of different nations and civilizations to law

1. European or Christian

2. Muslim or Islamic

3. Hindi Buddhists

4. Chinese confusion

5. Japanese

- on the differentiation of law and legislation

1. Positivistic

2. Non-positivistic

- on basic ideas that define the content of law understanding

1. Natural law type of law understanding

2. Positivistic or normative

3. Sociological

Home task - to describe the difference between the types

Levels of law understanding

3:

1. everyday level

Subject - ordinary people. Source - no specific. School, media, practice, Internet, consult.

Does not have clear separation from moral and other norms

Finds out in External expression in relation attitude of a person to some legal phenomena

Hard for a state to influence

2. Professional

Subjects - professional lawyers. Sources - special education, legal practice

Influence on the application of law

Different in 2 legal families

3. Scientific or theoretical

Of the most essential aspects qualities relations of law. The knowledge on this level is in a form of legal theories or concepts. The subject - scientists.

THE MAIN THEORETICAL CONCEPTS OF LAW UNDERSTANDING

1. The essence of law understanding in accordance with concept of natural law

1.1 emergence and development of the natural law concept

1.2 the main approaches of natural law concepts to the interpretation of term law

1.3 current trends in law understanding in natural law theory

2. Understanding of the nature of law in the concept of legal positivism

2.1 emergence

2.2 main approaches

2.3 current trends

3. Law U in the sociological theory

4. Approaches to law U in the historical concept

5. Features of Marksist legal U

6. Integrative theory of legal U

Natural law

Aristotle, Cicero, Thomas Acvinas, Кант

Was formed in Ancient Rome

Routes - Ius gentium право народів

Then - Middle Ages based on the idea of god as the begging of everything. Influence of Catholic Church. 2 parts of law: created by god and set by people.

17-18 centuries law mast guarantee natural basic people's rights.

19 historical school of law

After WWII the revival of natural law concept

4 tendencies of natural law

Neothomism неотомізм

Phenomenological direction

Екзистенціoналізм

Герменевтичний

The main features of law

1. The are main basic rights of a human

2. Basic form of law existence - is public consciousness

3. Natural law and rights are obligatory to all people and belong to everyone regardless of positive law

4. There's a direct separation of law and legislation. Priority - law. Legislation is a form that contains natural law provisions and rights

5. Law is not a text of a statute but the system of ideas about obligatory norms rights prohibitions and obligations ways of their emergence and implementation which exists in social consciousness and have been oriented on moral values.

6. All law provisions should be based on some objective basis independent from the will of individual state or society.

7. Positive law is constantly evaluated from the position of morality. Unjust statute is not a statute.

Positive:

1. Human oriented

2. Independent from a state

3. Law limits intervention of a state into rights of individual

4. Use of principles

5. Law must me fair and just.

6. Differentiation of law and legislation

7. Obligations for the state to create positive law in accordance with natural law

Weaknesses:

1. No list of natural rights

2. Interpretation of basic values is different.

3. Natural rights are formulated in rather abstract form. Hard in interpretation

4. What's the source of natural right.

5. Court not a person decides whether a statute correspond with law (Ukraine)

6. Basic values are not that common

Modern tendencies - home task

Legal positivism

19-20 centuries

Ogust Cont

Positive knowledge of studying social phenomenon separately (without moral religion etc)

2 periods: classical and modern

Classical - based on a fact - order of a sovereign head of a state. So it's obligatory for every member of society that has to obey to legal provisions prescribed

Modern - legal provisions are not so obligatory before the rule of recognition is used. Justice moral values

2 sub directions: soft and hard positivism

Soft - legal rules as a criteria of the validity can contain some moral principles. Norms can be evaluated from position of morality

Hard - No connection between law and morality

Positive:

1. Clear relation between law and a state. We know a source of law - a state.

2. Great attention is given to some formal aspects of passing of legal act

3. Ideology and law are separated

4. Specific rules to avoid conflict of laws, fill in gaps, systematization of legislation

Weaknesses:

1. Almost no connection between law and morality

2. The biggest power is given to a statute in spite of statute can have unjust norm. State is the only creator of law

3. Priority of positive law over personal rights of a human.

Modern tendencies - home task

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