Sources of law are documentary ways of expressing and consolidating norms of law emanating from the state or officially recognized by it, giving them legal, generally binding meaning.

The sources of law, therefore, represent the only “place of residence” of legal norms, the reservoir in which legal norms are found and from where we “draw them” (hence the name “sources”).

Sources of law are characterized by the accuracy of concepts (law, decree, etc.). Sources of law, like positive law in general, have an official, public character; they are recognized by the state, which predetermines the state’s support for the norms they contain and their state security.

Sources of law are practically given an official, public character in two ways:

Through lawmaking, when regulatory documents are adopted (issued) by competent government bodies, i.e. come directly from the state;

By sanctioning, when government bodies, such as courts, in one form or another approve social norms (customs, corporate norms), giving them legal force.

There are three main types of sources of law, corresponding to three forms of positive law (conventionally called: “law of the legislator”, “customary law”, “law of the court”).

1. Regulatory legal acts - official documents containing legal norms (as well as provisions that cancel or amend existing norms). These in Russia include laws, regulatory decrees, resolutions, and other regulatory documents of the President, Government, and departments.

2. Sanctioned customs are rules that have become a habit, to which the state has attached generally binding significance and the observance of which it guarantees by its coercive force. The sanction of the state, which gives customs a legal, generally binding meaning, is given either by reference to customs in a normative act, or by actual state recognition in court decisions and other acts government agencies.

3. Judicial or administrative precedent - a judicial or administrative decision on a specific legal case, which is given generally binding legal significance.

Among other sources of law, it is necessary to highlight a normative agreement - an agreement of two or more entities containing generally binding, legal norms (for example, a federal agreement). According to its main legal features A normative agreement refers to normative legal acts.

Sources of law, even more than legal norms and legal relations themselves, are associated with practical activities lawyers, concern everyone who has to, one way or another, come into contact with legal issues in practice. And here it is necessary to keep in mind the essential point that laws and all other sources of law are not only general concepts and representations, but also a kind of legal realities - documents, texts, precise formulations of legal norms. Therefore, in this area, techniques and rules for handling documents, legal techniques, and knowledge of a purely practical nature are so important.

Now let’s take a closer look at the sources of law.

Types of sources (forms) of law

Custom as a source of law

Legal custom is understood as a rule of behavior that has developed as a result of its actual application over a long period of time and is recognized by the state as a generally binding law.

Custom was the main source of law in the early stages of the development of the slave and feudal system. For example, customs passed down from the clan system were known, such as talion (causing the same harm to the culprit as was done to him), vira (a fine for killing a person). A number of legal sources of that time were mainly systematic records of the most important legal customs. An example is Russkaya Pravda.

Approach to the concepts of “custom” and “customary law” in various scientific schools ambiguous. In domestic pre-revolutionary and modern Western jurisprudence, these concepts were not distinguished at all. The system of customary traditional law is understood as the existing form of regulation of social relations (for example, in the countries of equatorial, southern Africa and Madagascar), based on state recognition of those that have developed naturally and become a habit of the population social norms(customs).

Custom is the most ancient source of law, known to all legal systems, but if in the countries of Romano-Germanic and Anglo-Saxon law it plays only a secondary role, then in Africa it was and continues to be an important regulator of social relations, especially outside cities.

Some scholars view customary law as the original way of creating legal norms, which arose earlier than society was constituted in politically. In their opinion, the law established by custom was applied mainly at fairly early stages of the development of society, in archaic legal systems. However, this is not entirely true, since, as ethnographic science claims, customs are still used by some peoples today, and in addition, the process of creating new customs that reflect the ethnocultural development of society continues.

The peculiarity of a custom is that it is a rule of behavior that has become a habit. From a legal point of view, custom is an unwritten source of law, characterized by disorder, plurality and diversity. The reason for this is the large number of cultures inhabiting a particular region.

An appeal to the world experience of comparative law shows that the majority of scientists, a prominent representative of which is Rene David, believe that custom is not the basic and primary element of law, as the sociological school wants. It is only one of the elements that allows us to find a fair solution. And in modern society this element is not of primary importance in relation to the legislation. But its role, at the same time, is by no means as insignificant as legal positivism believes.

L.G. Svechnikova writes that “a huge influence in the formation of the national legal system belongs to national, religious and other characteristics inherent in a specific ethnic entity (or their combination), as well as those habits, traditions and customs that, repeated and consolidated in the minds of individuals, become norms behavior." Further, she writes that with the further evolution of the legal institutions of society, customs do not lose their significance, but continue to operate both at the everyday level and playing a significant role in the formation of a new legal system.

State-sanctioned custom is a very rare form of law.

In Art. 5 of the Civil Code establishes a new concept - “business customs”, which are recognized as established and widely used in any area entrepreneurial activity rules of behavior not provided for by law, regardless of whether they are recorded in any document or not.

Currently, the scope of application of business customs is mainly limited to foreign trade transactions, but it seems that the further development of market relations will require more detailed regulation of the customs that have developed in this area. The legislator is already following this path, establishing in Art. 427 of the Civil Code, the rule according to which the approximate terms of a standard (exemplary) contract can be recognized as an authorized custom.

As noted by the participants of the scientific and practical conference “Usually law and its role in the formation of modern legal culture” (Rostov-on-Don - Maykop, April 19 - 21, 1999), the problems of customary law and legal pluralism today add new aspects to the extremely interesting and the dramatic situation that is developing in Russia and in many other regions of the former Soviet Union.

The norms of local “unofficial” systems of customary and Islamic law, seemingly in a state of inaction for many decades, contrary to what is written in the textbook, turn out to be effective, and this phenomenon cannot be ignored in modern law-making.

Judicial precedent

The Legal Encyclopedic Dictionary defines precedent as behavior in a particular situation that is considered as a pattern under similar circumstances. Judicial precedent is a decision in a specific case that is binding on courts of the same or lower instance when deciding similar cases or serves as a non-binding example of the interpretation of the law. The essence of judicial precedent is to give a normative character to a court decision in a specific case.

Not the entire decision or sentence is binding on the courts, but only the “core” of the case, the essence of the judge’s legal position on the basis of which the decision is made. This is what experts in the Anglo-Saxon legal system call the “ratio decidendi”. As R. David rightly noted, English lawyers consider their law mainly as law judicial practice(cause low). Legal norms can gradually emerge from precedent. In countries where judicial precedent is recognized as binding, it is a source of law.

Judicial precedent is one of the sources of law in England, the USA, Canada, Australia, that is, where the common law system is adopted. All of these countries publish court reports from which information on precedents can be obtained.

It should, however, be emphasized that in different countries, even within the same legal family, judicial precedent is applied differently.

The rule of precedent in England, for example, is bound by the following provisions:

1) decisions made by the House of Lords are binding on all courts;

2) decisions made by the Court of Appeal are binding both for all lower courts and for this court itself (except for criminal law);

3) the decisions made by the High Court are binding on the lower courts and, although not strictly binding, are very important and are usually used to guide the various divisions of the High Court and the Crown Court. In the United States, the rule of precedent does not operate so harshly due to the peculiarities of the country's federal structure. First, the US Supreme Court and state supreme courts are not required to follow own decisions and can thus change their practice. Second, the states are independent, and a rule of precedent applies only to the jurisdiction of the judicial system of a particular state.

The authority of precedent is not lost over time. The actual strength of precedent even increases over the years, and courts are reluctant to overturn long-standing precedents unless they are clearly wrong. A precedent can be rejected either by law or by a higher court. In the latter case, it is considered that the previous decision being canceled was made as a result of an incorrect understanding of the law, and the legal norm contained in it would have never existed.

Recognition of precedent as a source of law enables the court to perform law-making functions, both in the absence of a corresponding law and in its presence; this postulate is characteristic of the entire common law system.

Legal doctrine

The opinions of leading legal scholars in most legal systems do not constitute law in the proper sense of the word. However, in the formation of the model legal regulation meaning scientific works in the field of law has always been quite large. The legislator often took into account the trends that were recorded in the doctrine. In the Romano-Germanic legal family, the basic principles of law were developed precisely within the university walls. The role of doctrine in modern conditions extremely important in improving legislation, in creating legal concepts and in the methodology of interpreting laws.

At the same time, the history of the development of law knows cases when legal doctrine is perceived as a direct source of law. Thus, in English-speaking countries, judges often justify their decisions with references to the works of English scientists. Muslim law is generally based on the principle of authority, and therefore the conclusions of ancient jurists, experts on Islam, have official legal significance. Extensive sets of rules of generally binding conduct, drawn from the works of eminent jurists, are known to Hindu law.

Religious texts

These are sacred books of various religions, the provisions of which have universally binding significance in the corresponding systems of religious law (Christian canon law, Hindu law, Judaic law, Muslim law). First of all, we should mention the Koran and Sunna (the Koran is a holy book, which is a collection of teachings, speeches and commandments of Allah; the Sunna is a collection of the biography of the Prophet Muhammad), which are the two main sources of Muslim law.

It must be borne in mind that the relevant religious law (Muslim, Hindu, etc.) is the law of the corresponding religious community (the law regulating the behavior of members of the community of believers), and not the national-state system of law.

Regulatory legal agreement

This legal act, based on the mutual expression of the will of the parties, which creates a legal norm. It acts as the main legal form in international law.

A contract is an effective legal tool for determining the rights and obligations, rules of interaction between citizens and legal entities. It is of great importance in relations between states. However, the contract is no less important as one of the main sources of law in the field of commercial relations and property turnover.

From a legal point of view, a contract is usually an agreement between two or more persons to establish, change or terminate civil rights and obligations. In the conditions of formation in Russian Federation In a market economy, the role of the contract as an instrument of self-regulation increases significantly. Freedom and equality of the parties presuppose free entry into contractual relations without any administrative dictate. The content of the contract is therefore mutually established legal rights and obligations.

The agreement is concluded on the following principles:

1) equality;

2) autonomy (independence) of the parties and their free expression of will;

3) property liability for violation of an obligation.

The peculiarity of a contract as a subordinate source of law is that the parties can enter into an agreement either provided for or not provided for by law or other legal acts. The main requirement for the form, content and subject of the agreement is that it does not contradict current legislation. One may get the impression that there is no legal regulation of the institution or contract in Russian legislation. However, it is not. One of the most important legal documents of our state, the Civil Code, devoted three chapters to the agreement.

The terms of the contract must comply with the norms contained in the legislation. Otherwise, it may be declared invalid. At the same time, the legislator established the legal priority of the agreement over the law adopted after the conclusion of the agreement (clause 2 of Article 422 of the Civil Code of the Russian Federation).

Basic principles and functions of law.

Under principles of law refers to fundamental ideas that are realized in the content and form of positive law (main guiding ideas, basic properties, requirements, features, spirit of law).

The principles reveal the essence of law and its significance for society.

The following principles of law are distinguished:

1. Principle justice(compliance of law with existing moral standards in society);

2. Principle democracy(democracy) (the law must express the interests of the majority);

3. Principle equality rights.

4. Principle humanism(philanthropy).

5. Principle freedom of subjects rights.

6. Principle legality.

7. Principle responsibility for guilt.

8. Principle mutual responsibility of the state and the individual.

9. Principle unity of legal norms.

10. Principle reality of legal norms.

Functions of law- these are the main directions of influence of law on society, through which the goals of law are realized. The essence of law is manifested in functions, as well as in principles.

Basic functions of law:

A) Social features rights:

1. Economic - consolidating a certain type of production relations.

2. Political - consolidation of relations regarding power.

3. Ideological - consolidation of a certain ideology or, on the contrary, pluralism of ideas.

B) Special legal functions of law:

1. The regulatory function of law is to indicate, with the help of legal norms, necessary, prohibited or permitted behavior.

2. The protective function of law is the establishment of liability for persons who violate prohibitions and do not fulfill obligations, and the protection of rights.

In order to use the rules of law in everyday life, you need to know where to “look” for these rules, how they (the rules) are expressed and in what ways they exist.

Source (form) of law- is a way of expressing (formalizing) and consolidating the rule of law in objective reality.

In the world there are the following types of sources of law:

1. Legal act- a document issued by the competent authority of the state and containing the rules of law (laws of parliament, acts of the head of state, ministries and departments, etc.). This type of sources of law prevails in countries with a continental (Roman-Germanic) legal system (Russia, Germany, France).

2. Legal custom- this is a rule of behavior that arose and exists in society and to which the state has given legally binding force. This group should also include customs and customs that have developed in the practice of the economic and political sphere of life of the society of the corresponding state.

3. Judicial precedent- these are court decisions on a specific case, which acquire the status of a generally binding rule for resolving all similar cases for all subsequent courts. In other words, a judicial precedent is a kind of model for the court to resolve all similar cases in the future. Judicial precedent as a source of law is most common in countries with an Anglo-Saxon legal system (Great Britain, Canada, USA, Australia).

4. Administrative precedent- decision of an administrative body on a specific case. In the future, this case serves as a generally binding model for the resolution of all subsequent cases of the same kind.

5. Regulatory agreement - it is a treaty between two or more countries that contains generally binding rules of conduct. Such treaties are valid on the territory of the signatory states.

6. Scientific doctrine- this is a legal theory of a prominent lawyer that has generally binding force (a religious doctrine is a religious teaching that contains rules of law or from which they are derived through interpretation).

7. Religious sources(scriptures and books sacred to those professing a particular religion, such as the Koran, Sunnah, Ijma and Qiyas for Muslims). These sources of law are recognized as the main ones in countries with a religious legal system (Afghanistan, Iran).

Types of sources of law of the Russian Federation.

The main sources of law on the territory of the Russian Federation are regulations. The entire system of regulatory legal acts can be divided into three relatively independent, but interdependent subsystems.

1. Regulatory legal acts of federal government bodies(President of the Russian Federation, State Duma of the Russian Federation, Federation Council of the Russian Federation, Government of the Russian Federation, etc.):

a) Constitution of the Russian Federation. It has supreme legal force, supremacy and direct effect throughout Russia. All other legal acts adopted on the territory of our country must not contradict the Constitution of the Russian Federation. The peculiarity of the Constitution of the Russian Federation also lies in the fact that it was adopted by a special subject - the people of Russia - in a national referendum on December 12, 1993;

b) federal constitutional laws are laws adopted in a special procedural manner (2/3 votes of deputies of the State Duma of the Russian Federation and 3/4 votes of members of the Federation Council of the Russian Federation) and only on those issues that are directly specified in the Constitution of the Russian Federation. For example, the Constitution stipulates that federal constitutional laws must be adopted on issues of referendum, states of emergency and martial law, citizenship, etc. An adopted federal constitutional law is subject to signature by the President of the Russian Federation and cannot be rejected by him;

c) federal laws are laws adopted by the Federal Assembly of the Russian Federation and signed by the President of the Russian Federation. This group also includes laws adopted in a referendum - popular vote. The peculiarity of laws adopted in a referendum is that they can only be changed as a result of another referendum. Federal and federal constitutional laws have supremacy throughout Russia and, according to general rule, supreme legal force in relation to all others regulations;

d) decrees of the President of the Russian Federation. They are issued by the head of state in pursuance of the powers provided for by the Constitution of the Russian Federation (Chapter 4 Section 1). Unlike laws, decrees of the President of the Russian Federation can be both normative and non-normative, i.e., not containing norms of law. The latter include decrees on awarding citizens with orders and medals, on granting citizenship, on the appointment and removal of senior officials. Decrees issued by the head of state within the limits of his powers and not contradicting the Constitution are binding on the entire territory of the Russian Federation;

e) decrees of the Government of the Russian Federation are issued in pursuance of the Constitution of the Russian Federation, federal laws and decrees of the President of the Russian Federation. They are binding throughout the country, but if they contradict the Constitution, federal laws and by presidential decrees they can be canceled by the President of the Russian Federation (Article 115 of the Constitution of the Russian Federation);

f) by-laws of federal government bodies (orders, instructions and letters from ministries and departments, state committees and federal services, Central Bank of the Russian Federation, resolutions of the chambers of the Federal Assembly of the Russian Federation). All acts of federal executive authorities affecting the rights and legitimate interests of citizens or of an interdepartmental nature are subject to state registration in the Ministry of Justice of the Russian Federation and must be in established by law order are published for public viewing. Any regulatory legal acts affecting the rights, freedoms and duties of a person and a citizen cannot be applied if they are not published (Part 3 of Article 15 of the Constitution of the Russian Federation).

2. Regulatory acts of the constituent entities of the Russian Federation:

a) constitutions of republics and charters of regions, territories, autonomous okrugs, cities of federal significance and autonomous regions;

b) laws of the constituent entities of the Russian Federation;

c) by-laws and legal acts of state authorities of the constituent entities of the Russian Federation (decrees, decrees, orders, instructions of governors, presidents of republics, mayors of federal cities, etc.).

3. Regulatory acts of authorities local government (decisions of representative bodies of local self-government and heads of administration (mayors) of cities, towns, districts).

4. Regulatory agreements.

Sources of law on the territory of Russia are recognized as interstate treaties ratified(approved) by the Russian Federation. According to Part 4 of Art. 15 of the Constitution, generally recognized principles and norms international law and international treaties of the Russian Federation are integral part its legal system.

A special type of regulatory agreements are agreements between constituent entities of the Russian Federation and federal government bodies on the delimitation of jurisdiction and powers.

Regulatory agreements also include collective agreements employment contracts between trade unions and employers.

5. Legal customs.

The Civil Code recognized in general form the possibility of applying business customs that do not contradict the law or contract to regulate relations between business entities.

Jurisprudence. Cheat sheet Afonina Alla Vladimirovna

10. Sources of law

10. Sources of law

The meaning of the concept “source of law”:

1) society and the state that accept legal norms to satisfy the need for it;

2) objective conditions in the country (political situation in the state, economic development);

3) a state document containing legal norms. It is the latter meaning that defines the source of law in the legal sense.

The source of law, as a law-forming factor, has the following principles:

Material (conditions of life, economic prerequisites that led to the emergence of law);

Ideological (legal views, doctrines on the basis of which law arose)

Formal legal – the form in which the law is expressed. It is in the official document that the will of the state is formalized. This document is a source of law in the formal legal sense.

Law as a system represents the unity of the norms of law (content) and the form of law (the source of law in the formal legal sense).

To give the source of law character normative document necessary:

1) or its publication by a government body with appropriate powers (legislative);

2) or sanctioning of a social norm by a government body (judicial authorities).

Main sources of law:

1) legal custom- the first form of law, a historically established rule of behavior. It must be taken into account that not only generally recognized customs, but also customs approved by the state become legal. It is the state that gives them binding legal force. For example, the Laws of the Twelve Tables in Ancient Rome, the Laws of Draco in Athens.

2) precedent(judicial, administrative) – court decisions, the principles of which courts are obliged to apply as a model when considering similar situations. Courts are obliged not to create legal norms, but to apply them. This form law (case law) has become widespread in a number of countries, namely in the UK, USA, Canada, Australia, etc.

3) regulatory agreement– an agreement between the parties containing rules of law. For example, international treaties, the Treaty on the Formation of the USSR of December 30, 1922, collective agreements between enterprise employees and the administration.

4) legal act– an official document issued in the manner prescribed by the legislation of the country by the relevant body, containing the rules of law (laws, codes, Government resolutions, Presidential decrees, etc.). It is adopted in compliance with the appropriate procedure, has the form provided for by law, comes into force in accordance with a certain procedure, and is subject to mandatory publication within the period specified by law from the moment of its adoption.