Questions related to the theoretical study of many legal categories are at the intersection of sciences - the theory of law, philosophy and logic. The correlation of the form of law and the source of law as categories requiring an adequate assessment from the standpoint of legal reality is important for a lawyer who sets as his goal the practical application of theoretical foundations, for example, in the field of rule-making. A correct understanding of the place of these general concepts in legal tools allows one to take into account deeper criteria for determining practical forms and principles of legal technology.
Form and content in legal science
Depending on the type of legal consciousness, the form of law and the source of law are correlated differently. The philosophical term “form” has received for many centuries a fairly deep theoretical study in the European tradition. Using philosophical roots, it can be noted that the form is a way of existence, expression and organization of some content. In this regard, in philosophical science it is customary to consider form in an inextricable connection with the content that is primary in relation to it, determines the existence of form as its external image. There is also a statement that the form can influence the content - in some cases, the new form causes corresponding changes in the content.
With regard to legal doctrine, to determine the relationship between the categories of “source” and “form of law”, one can draw such parallels with philosophical categories.
Jus est ars boni et auqui is a well-known saying of ancient Roman lawyers (according to some sources, it belongs to Celsus, and according to others to Ulpian). “The right is the art of good and justice” - they are now translating it into Russian. The Latin word ars has at least two meanings: “science” and “art”, which gives reason to translate this expression also as “law is the science of good and justice”. However, there is a third interpretation, suggesting that we are talking here more about the fullness of the law with value as an internal content, and not so much about its formal definition as art or science. The form of law in philosophical meaning is inextricably linked with the content, which, in turn, is defined in legal science in various ways.
Natural legal approach
The content of law in the natural-legal approach is objectively existing in relation to any formations, primarily state, natural rights and principles that form the legal consciousness in the ideal sense. Such contents are concepts, ideas, theories, feelings, people's ideas about the existing and desired order. Where, to a greater extent, the legal mind uses ideal concepts as an active, real legal principle, they become the source of law. In this case, the form of law and the source of law are correlated as a form and content in their philosophical sense.
Formal approach
With the predominance of the formal, positivist approach in legal doctrine, these or other forms of expression, methods of objectification of legal norms, are directly considered the source of law. It is about accepting both the form and, at the same time, the source of the law of law-making activity of the state apparatus, which is a means of exercising state power and will. Here, the ratio of the concepts “source of law” and “form of law” will be their complete coincidence in a logical sense.
Sociological approach
The third existing type of legal consciousness is considered to be the sociological (realistic) theory of law, which appeared as a negative reaction to the doctrine of positivist law. The focus of sociological jurisprudence is not the rule of law, but the conditions of their functioning, real life. The primary here is the law arising from social, practical relations, respectively, the source of law is reality itself. The concepts of “source of law” and “form of law” are somewhat separated and do not, in fact, have any common ground, since the legislator does not create norms here, but merely formulates them as an indirect subject. As follows from such an approach, any correlation between the form of law and the source of law is completely absent.
Practical value. European Court of Human Rights
Thus, the nature of the correlation of the source of law and the form of law in the full sense is determined by the prevailing type of legal understanding, the vector of awareness of the place-reason for legal regulation in public life. In Soviet-era domestic science, the second, formal approach, in which these concepts were largely identical, was predominant.
Pursuing the practical goal of studying the relationship between the form of law and the source of law, it should also be noted that the first of the above approaches, natural legal, is used in its activities by the European Court of Human Rights.
Thus, the court, as a support, a form of law, uses the norms of the Convention on Human Rights adopted by the Council of Europe. However, as a source of law in the decision-making process, the court operates with a much deeper content called “human rights and freedoms”. Studying the practice of the court, it can be noted that the motivating part of any decision goes far beyond the formal framework of the text of the Convention, since it uses as its content and source all those fundamental ideas and principles of freedom, equality, the value of a person’s life, respect for his rights, which were formed by the legal doctrine and society throughout the XVII-XX centuries.
Conclusion
In the modern theory of state and law (TGP), the ratio of form and source of law is of great importance for the formation of the quality and depth of the worldview. Certainly, there are no eternal ideas that would not need to be faceted by the practice and experience gained as a result of contact with an ever-changing, evolving reality. In legal science, this rule is important to maintain the adaptability and flexibility of legal instruments - so that it meets its time and its practical realities. At the same time, it is important to understand the connection with legal sources, the inseparability of which serves as a factor streamlining practical relations, giving them the basis for the natural stability of their movement and development.