Most of the processes that occur in the relationship of people at the level of civil society, in business, in politics, are regulated by legal norms. Their development is a procedure, the course and content of which depends on very many conditions - on the specifics of the historical and cultural development of the state, its political system. The international factor is also significant.
By what mechanisms can the creation of legal acts reflecting the relevant norms take place in practice? What fundamentally different laws of the constitutional level from ordinary? What are the legal norms in terms of their classification? What does the principle of separation of powers have in terms of their development?
What is a legal norm?
Let's define the terminology. What is the concept of a legal norm? According to one of the common interpretations, it means a rule that is mandatory for a group of subjects to execute by force of law. That is, sanctioned by the authorities, as well as protected by him in the aspect of possible violations. Note that the terms "rule of law" and "legal rule" modern Russian lawyers consider synonyms. Although permissible variations in the interpretations. For example, a rule of law can be understood not as a rule established by the state, but as a habitual, normal from the point of view of perception by society or some particular group of its behavior, not necessarily codified in laws.
What are the distinguishing features of legal norms? First of all, it is worth noting the fact that they are characterized by a social orientation. The object of regulation is either society as a whole, or its individual groups, in the extreme case - job categories. Personal orientation is not characteristic of legal norms, based on their content, of course, and not on application.
The main principle, within the framework of which the legal norms of the Russian Federation and other states are in force, is a generalization of properties that most representatively reflect the current development of relations between objects of regulation. That is, this or that source of law is called upon to equally efficiently realize the interests of a group of people or, as we have already said, the whole society.
The legal norm is aimed at regulating the activities of those objects that have similar characteristics, based, for example, on the profession, social category, age, etc. If we are talking about society as a whole, then here, as a rule, it means the citizenship of the people or the territory in which they live.
The problem of the correlation of theory and practice
The main difficulty for the legislator, which issues legal norms, is the need to ensure compliance with the provisions contained in the sources, the realities of society. Or that part of it that is relevant to the essence of the law. In legislative systems of almost any country in the world there are imperfect legal norms. Examples of such are found in Russia. Also among lawyers (both those related to practices and those engaged in scientific research in the field of law), a discussion has opened on the subject of choosing the main methodology for understanding law.
There are those who believe that the reading of legal norms should be carried out (if possible). That is, you should adhere to the meaning of the wording present in the texts of laws, in the generally accepted meaning. But there are lawyers who are closer to the interpretation of legal norms. They believe that one should not read what is written in the laws, literally. More precisely, this can be done, but only if there is no substantial reason to doubt the relevance of the actual state of affairs set forth in legal acts.
Law and morality
Regarding the second aspect: when there is an interpretation of legal norms, a prominent role, as many lawyers believe, is played by such a category as morality. The person responsible for the application of certain rules set forth in the laws is guided by the personal perception of the current state of affairs in the field falling under regulation. And therefore, it interprets the provisions of the law, proceeding, first of all, from personal convictions, and not because of their semantic content.
There are areas in which morality may not be a very appropriate component of the practical application of laws. For example, financial and legal rules governing the activities of banks should be as little as possible interpreted. Their specificity involves strict reading, working with numbers.
Types of legal norms
Lawyers divide legal norms into three main types - binding, prohibiting, and also empowering. The border between them can be quite arbitrary. For example, some financial and legal norms, if we continue to talk about them, may in some provisions give the Central Bank the right to verify commercial credit and financial structures, and on the other, oblige the Central Bank to do this if there is a corresponding reason. In many cases, the structures of regulatory legal acts presuppose a certain sequence of conditions under which authorizing provisions can be applied as a matter of priority, and only if a certain set of conditions are binding. The reverse situation is also possible.
There are other reasons for the classification of legal norms. They, by the way, can successfully complement those that we just named. We are talking about the division of legal norms into dispositive, optional and peremptory. Those that belong to the first allow some kind of freedom for the subject responsible for the application of legal provisions. He may ask himself a question: should any norm be implemented or is it permissible not to use this opportunity? Optional norms presuppose a certain alternative scenario, but not a refusal to apply the provision. Imperative, in turn, do not imply other options than those prescribed by law. How do both classifications correlate? Everything is very simple. As a rule, binding and prohibitive norms are imperative or optional. Authorized are most often dispositive.
The rules of law are accepted by society
In democratic regimes, there is a procedure in which the signs of a legal norm include such a parameter as the social character of origin. This means that the adoption of a law by a direct or indirect method is initiated by society. It agrees that its activities will be regulated by legal norms. Examples when a society participates in their establishment itself is a referendum, a popular gathering. If we are talking about an indirect way of public participation in the development of relevant standards, then this is most often the delegation of legislative powers through parliament.
Systematic legal norms
The totality of legal norms adopted at the level of state institutions with the participation of society forms an appropriate system. It may include sources that control processes at the level of a variety of social groups, in some cases completely unrelated. However, the norms of legal acts, standards and procedures for adopting laws, criteria for their effectiveness in this case will have a systemic nature. The latter is common for regulatory sources with different sectoral or social orientations.
Legal norms and state
How does the state participate in the construction and support of the functioning of the system of legal norms, not counting the provision of mechanisms for their adoption? You can answer this question by looking at the principle of separation of powers. Only one of the three branches is involved in the development of legal norms - the legislative. But there is also an executive, as well as a judicial. Accordingly, the role of the state is not only in the publication of legal norms, but also in ensuring their implementation, as well as in the judicial resolution of possible disputes regarding the interpretation of certain regulatory provisions.
One of the key mechanisms in the framework of which the interaction of all branches of government is carried out (and especially those that provide the function of the executive branch) is the law of coercion. The state obliges to fulfill the requirements of the laws of all those for which they are relevant. In countries with a developed legal system, it is not allowed to substitute the law with other rules that originate outside the institutions of power (with the exception of cases when the legal rules themselves allow this). Examples can be found even in Russian practice. In particular, the Civil Code of the Russian Federation contains a norm according to which the signing of civil contracts in accordance with established forms and standards can be replaced by a business custom, the essence of which is not clearly defined anywhere - it is based on the national traditions of a particular region of Russia. But in the general case, civil law norms are the primary source of standards of behavior for society or for its individual groups.
In some states, the leading role in the legal management of public processes is played not by the executive and legislative branches, but by the judiciary. With what it can be connected? First of all, with the specifics of the legal system operating in a particular state, the essence of which, in turn, is determined most often by the cultural and historical features of the country's development. What are these systems? Consider them.
Romance and Anglo-Saxon Law
Laws in different countries can work within dissimilar systems. However, in the modern world, each of the national aggregates of standards that determine the essence and operation of legal norms, one way or another, reflects one of the global systemic concepts of lawmaking. If we talk about developed countries, then two corresponding systems are popular in them - the Romano-Germanic and the Anglo-Saxon. What are the features of each of them?
Within the framework of the Roman-German system, codified sources are at the heart of the functioning of national legal systems. That is, laws that should sufficiently, and ideally, in an exhaustive form, prescribe certain objects of regulation to behave within the framework of certain rules. These may be general civil law norms set forth in a separate code. Or, for example, the provisions governing relations in specific sectors of the economy. Any criminal law rule is also codified in the Roman-German system.
The mechanism by which laws are passed here implies the dominant role of parliamentary and executive institutions. Legal acts are issued only upon passing through a series of discussions and approvals specified by other laws.
What are the features of the Anglo-Saxon model? The fact that the main source of law in it is judicial precedent. The fact is that the law, as we said above, is adopted either by society itself through a referendum and similar mechanisms, or through the delegation of its powers by society to parliamentary structures. But judicial precedent has completely different conditions for entry into force. The entire legislative process boils down to a court hearing. As soon as the relevant decision is made, it becomes a source containing full, enforceable legal norms. Examples of countries where the Anglo-Saxon model works are the USA, England, Canada.
The judicial precedent indicates, in the same way as in the law, the object of regulation. As a rule, this is a social group that has similar characteristics with those involved in the trial - the plaintiff, defendant, or the accused. Consider an example.
A certain person walked down the street in the evening and accidentally entered the territory of Jacksonville Municipal School. The guard called the police, and the citizen was arrested on suspicion of intent to inflict some damage on the school. A court was held in which the corresponding intent was not proved, however, the person was found guilty of violating existing rules prohibiting encroachment on municipal property. As a result, there was a precedent of the following nature - in Jacksonville it is unacceptable to enter the territory of municipal schools in the evening. A binding legal norm appears. Now the inhabitants of this American city are forced to be especially attentive during evening walks in the area of the relevant educational institutions. Of course, judicial precedents exist in the Romano-German system of law. However, they do not have the force of law, and therefore cannot be used outside the courts. They are not generally binding, as in those countries where Anglo-Saxon legal traditions are strong.
Many lawyers have noted that the boundaries between the two systems of law in question tend to be erased. In the USA, for example, it is precisely the laws that are becoming more and more important - those passed by state parliaments, or, if we talk about the federal level, by Congress. In many European countries, judicial precedents, in spite of their secondary importance when comparing with laws, begin to play an increasingly important role in resolving disputes in the aspect of law enforcement practice, and de facto often perform the functions of official normative acts.
Legal norms and international relations
Within the framework of which systems do international legal norms operate, provided that at the national level completely different legislative models can work on key principles? Actually, the main emphasis here is on the unification of procedures. One of the key principles of international law is the imperative of norms that equally adequately reflect the development of the entire world community as a whole or of individual regions of the planet, between which relations are built in one or another sphere.
Another feature of international acts is the integrity of the enforcement mechanism. It successfully complements the imperative in question. Generally binding for several countries at once can only be those acts whose execution logic is the same for all cases, that is, complex.
One of the main documents regulating international law is the Vienna Convention of 1969. In it, in particular, it says that relations between countries should be built on the principle of paramount importance of legal norms established at the global level. National legislation should either comply with international provisions in the areas where it operates, or imply the priority of the latter in the course of law enforcement practice. If the state, building a law-making policy, does not comply with this principle, then it can be excluded from the appropriate environment for the interaction of countries in the legal field.
Another major document is the Declaration on the Principles of International Law, adopted in 1970. It, in particular, is a striking example of a normative act in which there is an integrity of principles. The Declaration states that participants in international relations should interact, when it comes to the development of regulatory provisions, within the framework of common universally accepted approaches. The document contains principles that states should not be guided by. Consider them.
1. The principle of abstinence from the use of force of one state against another.
The territorial integrity of the countries of the world, as well as their political sovereignty, must be guaranteed by international law. Possible military intervention in their affairs should be agreed upon at the UN level.
2. Settlement of disputes in ways that do not harm the international community.
Military action as a method of resolving disputes should not be an end in itself. States undertake, as a matter of priority, to resolve conflicts peacefully.
3. The principle of refusal from the interference of some states in the affairs of others that can solve problems within their own competence.
If a country is able to cope with difficulties alone, then international law assumes that others will not impose their help on it.
4. States should show a desire for mutual cooperation.
This principle implies compliance with the relevant provisions of the UN Charter.
5. Peoples have the right to self-determination, as well as to equal status.
This wording is understood by many lawyers as endowing ethnic groups with a resource for the formation of new independent states.
6. Sovereign countries build relations with others on the principles of equality.
It is assumed that one state cannot have unconditional priority in resolving some controversial issues. This can only be established by an international court.
7. States must fulfill their obligations assumed in the framework of interaction with others in accordance with UN standards in good faith.
An important nuance: all of the above principles should be considered in a single context. And therefore, a state that conducts international activities in accordance with the UN Charter and other sources of law adopted in this organization cannot choose which principles to follow and which not.
Constitutional aspect
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The classification of constitutional norms adopted in Russia provides for a wide variety of relevant regulatory acts. However, for each of them, any of the above items applies.