AUTHORITY OF LAW SYSTEM FORMATION: APPLIED ANALYSIS OF LEGAL SYSTEM UNITY.

Author:Tsurkan-Saifulina, Yuliia V.
Position:Report - Abstract
 
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INTRODUCTION

Authority of law is quite new phenomenon. Rarely does it become an object of direct study and search of its place in traditional chapters of theory of law. Conventional understanding of the process leads to that there appears possibility of stratification and complex definition of opportunities of distribution of certain legal systems. It supports authority of law in some regions and areas. In case of further development, legal system becomes successful and presupposes the establishment of such systems on neighboring areas. It allows talking about right choice of governance system and place. It is based on a legal family. Spreading from one country, they build not only relative according to legal families blocks but also complex regulation forms of social relations on the basis of coherence of legal fundamentals in society. In this connection, there is need to analyze mechanisms and historical periods of legal family distribution.

When studying approaches to legal system typologization, it is necessary to trace the development of an idea about association of world legal systems in certain legal families according to one or other criteria. The main task of the work is to study analytically basic views on authority of law on the basis of legal system typologization. Some introduced sources are firstly analyzed in national literature (Moller & Skaaning, 2014).

Legal system can be defined as formed under the influence of objective laws of development of certain social community association of legal phenomena, which are tightly connected with each other and with other social systems (Kaniowski, 2013).

Values, which lie in the basis of law system, define its character, peculiarities of functioning, and have social nature. They legitimize public governance, obligatory norms and rules, which function in the society, determine belonging of any individuals to corresponding society (Kataeva et al., 2016; Hirschmann, 2016; Fomicheva et al., 2017).

The issue of interconnection between law system and state is of crucial importance if one wants to understand the nature of legal system, its structure and laws of development. The point of view, according to which functioning of legal system is realized within state system as its subsystem, is considered wrong (Mack, 2002). The concept of legal pluralism gets more support. According to it, law is not defined only in terms of the relation to national legal system or through its direct inclusion in national legal norms. Law can exist in national, supranational and subnational dimensions. As a result, several competitive and interacting legal systems can function within one space (Levine, 2010).

Law requires special institution, which would control obedience to existing rules. Efficient solution to this issue becomes possible with the help of neutral (unbiased) and qualified public governance (Andreopoulos, 2018). According to tradition, performance of this function is the responsibility of state as the representative of society, which has necessary resources for this. In Eastern legal systems this function can be effectively performed not only by government but also by other subjects (communities). This aspect determines one of the main peculiarities of legal systems (Sajo, 2006; Baynova, 2016).

Normativity is an important characteristic of legal system, which is formed by means of repetition of social relations based on equivalence of exchange of activities, which are reflected in mutual rights and duties of their members (Borzel & Risse, 2009). An obligatory feature of normativity is that it relates to others (everyone), is formed and implemented in the public, and therefore, is guaranteed by public institutions. It allows restricting legal system from other social systems, to prove legal character of corresponding law systems: they differ from other systems in that they establish mutual rights and duties of members of social relations and are supported by public government. It is the question of regulation of the most significant social relations by normative means with the aim to ensure proper functioning of society.

METHODOLOGY

Methods of historical analysis, which presuppose factual basis and comprehensive fulfillment of the process of legal system development in state, were used in the work. Using historical method, it becomes possible to trace the genesis of development of legal system sources.

With the help of logic method, the introduced approaches to discovery of nature of legal systems and criteria of their association into legal families are generalized, and basic structural elements of legal system are defined. An important role in the study plays such logical technique as classification that allowed to determine place and role of concrete legal system on legal world map and to forecast ways of further development of both separate legal systems and their association. Alongside with classification, methodological potential of typologization was used, which represents the process of legal systems association based on theoretical model (type). Typology allowed showing comprehensive knowledge of an object and opening up its systemforming connections, significant features and traits of the whole system.

The use of systematic method and appeal to theory of social systems allowed to define features of legal system as a kind of social system, to determine its role and function peculiarities as subsystem of society. Formal-legal method was used during the study of religious texts, which have status of law resources in religious legal systems, and also practices of European court of human rights concerning cases related to freedom of religion or belief etc.

Comparative legal method was used at all the study stages. With its help the analysis of basic world legal families was carried out, what allowed to establish general and distinctive features of legal systems?

RESULTS AND DISCUSSION

Some authors count down the beginning of development of legal system from England of XVIth century, to be more exact, from 1531, when K. Saint-German pointed to the difference between Roman and English law and to the correlation in their development (Saint, 1604). After seventy years, in the year 1602, V. Fullback described legal world as an object, which came from three legal systems-Anglo-Saxon, continental and canon. And then, in the year 1701, Lord Holt wrote that "principles of our law come from civil law, and therefore, in many aspects they are based on the same principles'" (Lane, 1701). This formula reflects self-perception of Europe of Modern time, when except for worlds at both sides of English Channel the influence of Pope was accepted to some certain extent (Bondaletov, 2015). However, the aforementioned division is typollogically right and real for today (Atanelishvili and Silagadze, 2018). This period is characterized by that almost till XIXth century the following peculiarities existed:

  1. Nonsystematic research process.

  2. Nondeveloped research methodology.

  3. Study of law was of theoretical character.

  4. National legal systems were underdeveloped.

    In 1874 Gumersindo de Azcarate distinguished six groups of legal systems in his work

  5. Neo-Latin legal systems (France, Spain, Portugal, Italy, Belgium, Latin America).

  6. German legal systems (Germany, Holland, Switzerland, England and Ireland, Scotland, USA).

  7. Scandinavian legal systems.

  8. ...

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