Topic 2. The basic concepts of theory of law 1. The essence of law Legal law - is a system of norms, which defined, established and guaranteed by state. This norms regulates public relations and acting as criterion lawful (permitted) or illegal (forbidden) behavior. Objective law – is a system of norms, directly issued by a state or admitted by state as regulators of social relations in specific cases. Subjective law – is a possibility for certain action or behavior which is provided by state and which belong to every individual law subject (owner right, entrepreneur, voting right). Subjective law is based an objective law.
LEGAL LAW established by the state to express state will of political actors, which has state power reserved by state is as regulator of social relations Characterized by: formal definiteness; normalization; systematization; dynamism. has binding character
2. Function of law – are the directions through law makes influence on social relations General social functions 1. the humanistic; 2. the organizationallyadministrative; 3. the informative; 4. the ideologically-educational. Special legal functions Protective function – is carried out by imperious legal influence on subject of legal relations for the purpose of maintenance of their rights and freedoms inviolability from outside offenders, protection of their property, state and society protection as a whole Regulatory function – directed on settlement of a public order by fastening of desirable behavior in that or other branches of public relations
3. Social norms. Kinds of social norms Legal norms Moral norms Social norms Religious norms Cooperate norms Custom and traditions
Social norms – are general rules of people behavior in a society, cost by an objective law, regulating relations of people. Identifying feature: 1. Social norms – are typical models of person behavior, they are directed as regulation of public relation. 2. Social norms have general character, so they can be used many times. 3. Execution of social norms is provided by social levels. Kinds of social norms: 1. Legal norms – obligatory, formally defined, established by the state as a rule of behavior provided with a state compulsory force. 2. Moral norms – are the norms, which express society rules reflecting peoples assumption about major moral categories (honor, good, evil). 3. Religious norms – representation of peoples about God and the person relation to the God. 4. Cooperate norms – the rules of behavior established and provided with association of the people (developed passing from generation to generation the rules political bodies, parties). 5. Custom and traditions – spontaneously of ordinary behavior ( New Year and other).
Common feature by legal norm and moral norm 1. Regulate peoples relations. 2. Rules of general application. 3. Directed to established the order in social relation. 4. Consider in content when legal norm are adjusted with moral norm. Differences between legal norm and moral norm 1. Depending on the source of norm: Moral – development in society; Legal – adjusted by state. 2. Depending to a scope: Moral – are universal regulations; Legal – regulate the most important spheres of social relations. 3. Depending on a level of detalization: Moral – mostly contain a general principles of human behavior; Legal – is specified responsibility for infractions.
The legal norms of law and its structure Legal norm – is established or protected by the state , rule of behavior that defines rights and responsibility of a person in regulation social relations. Structure of the norm of law Hypothesis Part of norm that point to particular circumstances which it should be execute (art 264 of Civil code of Ukraine) Disposition Part of norm containing the rule of behavior that point the right and responsibility of sides of social relations Sanction Part of norm that provides a measure of punishment which can be applied to perpetrator
4. Source of the law – it is proceeding from the state form of expression and fastening of norms of the law and way of their registration in the form of corresponding legal certificates, documents. The basic sources of the law: 1. Legal custom; 2. Legal precedent (judicial or administrative); 3. Law-making treaty; 4. Legal act. Legal custom – usual rule of behavior authorized by state. Legal precedent – is a decision of competent body of the state, to which is appropriate a formal compulsion at the decision of all subsequent similar judicial or administrative affairs. The law-making treaty – objectively formally obligatory rules of behavior of the general character which is determined on the agreement of two or more subject and also are provided by the state. The legal act – is the decision of competent bodies which is published in the order established by the law, has general character, appearance of the official document in the writing form, is provided with the state and general legal consequences.
5. System of law – is a system of norms, institutions and branches of law and their interconnections or the internal structure of the law. Norm of law Legal institute – is a separate parts of law branch and aggregate of legal norms that regulate specific type of social relations. Branch of law – is an independent part of system of law, an aggregate of legal norms that regulate specific sphere of similar social relations. Sub-branch of law – it is a large group of law consisting of a number of institutions, which regulate similar social relations.
Depending on a place and role of legal system of branch of the law, share on basic and complex. Basic branches creates fundamental massif of the law in the law system of state. Among them allocate main (traditional), remedial and special branches. Main or traditional – creates a legal base, an obligatory part of system of the law (they concern constitutional, administrative, civil and criminal law). Special branches - branches, which developes the basic branches of the law and provides a special regime for a certain kind of public relations. Complex branches – superstructure over the basic branches, regulate considerably narrow sides of public relation (copyright law, insurance law). Remedial (procedural) branches fix an order of application of various norms of the law. Administratively-procedural law – regulates an order of application and realization of norms of administrative law. Criminally-procedural law represents system of norms which regulate an order of opening and judicial consideration of criminal cases, carrying out of inquiry and preliminary investigation performance of a sentence and other judgments. The civil-procedural law – system of the norms regulating an order of judicial consideration and awarding judgments in civil, labor, housing, land other disputes and affairs. The economic-procedural law – system of rules of the law which regulate application of norms of economic law and an order of definition of bankruptcy of the enterprises.
6. Law and by-laws normatively legal acts Law – legal acts, which are published exclusively by a legislature, have the higher legal force and regulate the major public relations in the state. All laws are divided into: Constitutional; Simple or current. Constitutional law – determines basis of public and political system, and serve as the basis for flowing laws: constitution and laws, which make change and additions. By-laws – are the statuary acts, which are published for concretization of the laws. By-laws as well as law posses a necessary legal force, but their actions are limited by laws, the can't fall outside the limits of regulation. Their norms have secondary character, they are based on laws. By-laws can't change or cancel norms of the law.
Allocate such types of by-law: 1. Decisions and other certificates of Verchovna Rada of Ukraine. 2. Decrees and orders of the President of Ukraine. 3. Decisions and orders of the Cabinet of Ministers of Ukraine. 4. Orders, positions, instructions and other regulatory legal acts of the ministries, departments. 5. The international contract of Ukraine. 6. Normatively-legal acts of department, managements and other services of local bodies of the state executive power. 7. Statutory acts of heads of enterprises. 8. Decisions and conclusions of the Constitutional court of Ukraine, the Supreme court of Ukraine, the General Public Prosecutor of Ukraine. 9. Other statutory acts.
