Jurisprudence

The Ministry of Science and Higher Education of the Russian Federation Kazan National Research Technological University







S. Galieva, G.Galieva, N. Kraysman

JURISPRUDENCE

Tutorial










Kazan
KNRTU Press
2019

       UDC 34(07)
       LBC 67Англ я7 G15


Published by the decision of the Editorial Review Board of the Kazan National Research Technological University

Reviewers:
Candidate of Jurisprudence, Associate Professor K. Arslanov Candidate of Pedagogic sciences, Associate Professor E. Molostova



        Galieva S.
G15 Jurisprudence : tutorial / S. Galieva, G. Galieva, N. Kraysman; The Ministry of Education and Science of the Russian Federation, Kazan National Research Technological University. - Kazan : KNRTU Press, 2019. - 224 p.

        ISBN 978-5-7882-2717-7

       The tutorial contains an analysis of the basic concepts and categories of law. The special attention is paid to such issues as the general theory of law, the foundations of the constitutional system of the Russian Federation, the foundations of civil, family, labor, administrative law. The materials for independent work of students are offered.
       The tutorial is designed for practical training of Bachelors in the following areas: 02.03.03 Mathematical Support and Administration of Information Systems, 14.03.01 Nuclear Engineering and Thermophysics, 15.03.02 Technological Machines and Equipment, 16.03.03 Refrigeration, Cryogenic Equipment and Life Support Systems, 18.03.01 Chemical Technology, 21.03.01 Oil and Gas Business, 27.03.05 Innovation, 29.03.03 Printing and Packaging Production Technology, 35.03.02 Technology of Logging and Wood Processing Industries, as well as students studying Jurisprudence.
       Prepared by the department of jurisprudence.
UDC 34(07)
LBC 67Англ я7
ISBN 978-5-7882-2717-7          © Galieva S., Galieva G.,
                                     Kraysman N., 2019
© Kazan National Research
                                     Technological University, 2019

                Introduction





      Discipline objective:
      1)  providing the basic concepts of the key branches of law;
      2)  building the students’ legal literacy;
      3         forming in students legal literacy in property and related personal non-property relations, consisting in profound knowledge of the civil rights and duties, the ability to be quickly guided in the huge number of civil-legal regulations, to correctly make civil documents, to use lawful ways to protect the broken civil rights;
      4)         forming in students modern legal thinking and language, allowing them to competently defend their rights
      In accordance with the State Higher Education Standard, Jurisprudence is included in the list of compulsory general humanitarian and socio-economic disciplines.
      Studying objectives.
      In the course of studying, the following shall be developed in students:
      •  the ability to correctly interpret the state legal phenomena, to evaluate them from the standpoint of both universal and specific historical values;
      •  value orientations in life and practice, based on the priority of human rights and freedoms while recognizing the fundamental importance of state and legal institutions;
      •  the ability to make their own conclusions and justify their judgments on the problems arising in the process of exercising their rights and duties in everyday life.
      •  the ability to search, critique, and make fusion of information, to employ a systematic approach to solving problems;
      •  the ability to identify the scope of tasks within the goal set and to choose the best ways to solve them based on the existing legal norms, available resources, and restrictions;
      •  the ability to carry out social interaction and to realize one’s role in team in solving legal situations.

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      In accordance with these objectives, the mandatory minimum content of knowledge in law includes two sections:
      1)  General Theory of State and Law;
      2)  Characteristics of the Main Branches of Russian Law.
      The discipline of Jurisprudence solves problems in close cooperation and interrelation with such sciences as Philosophy, Sociology, Digital Economy, Management Theory, Social Psychology, etc.
      The students are to know:
      •  what rights and freedoms are given to person and citizen in order to consciously and competently exercise them in various spheres of life;
      •  to know the basics of the legal system and legislation;
      •  to understand the organization of activities of judicial and other law enforcement agencies.
      The students are to be able to:
      •  use statutory instruments in practice
      •  draw up legal documents relating to future professional activities.
      General learning tips
      Before studying each topic, the students must read the relevant sections of the training program and guidelines, highlight the issues to be mastered. It is advisable to read the relevant chapters/paragraphs/ textbooks on Law. This will allow you to better assimilate the lecture material. The students should highlight the unclear questions that can be addressed to the lecturer, the teacher.

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                A SHORT COURSE ON SELECTED TOPICS OF THE DISCIPLINE





            Topic 1. General Theory of Law



         1.1.  Characteristic of law origin theories.
         1.2.  Concept, features, functions of law and state.
         1.3.  Form of state: form of government, form of government structure, political regime.
         1.4.  Concept, types, structure of legal rules.
         1.5.  Concept, types, structure of legal relations. Legal facts as
               the basis of creation of the relationship.
         1.6.  Legal frameworks of today. Sources (forms) of law.
         1.7.  Concept, elements, structure, types of offenses. Legal responsibility.



        1.1.  Characteristic of law origin theories

       The topic should be started with studying the main provisions of various theories of the origin of state and law: theological, patriarchal, contractual, organic, psychological, violence, etc. It should be kept in mind that each of them has faults (the most essential of them being that the material conditions which are the prerequisites for the origin of state and law are not taken into consideration) and advantages (each has made a certain contribution to the development of the theory, revealed some mechanisms of the said processes).



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      The historical and materialistic concept of the origin of state and law is of paramount importance. Its study should begin with F. Engels’s The Origin of the Family, Private Property and the State, which on the basis of extensive historical and ethnographic material and the works of many researchers considered the western way of the state and law origin. Attention should be paid to the characteristics of the tribal organization of the society, the social power that existed there and the accepted code of conduct. To the three major social divisions of labour and the elements of state and law revealed at that time. But we must also understand that along with the root cause of the state and law origin (the emergence of private property, the split of the society into antagonistic classes), there was a variety of factors and conditions (territorial, climatic, and demographic) which one way or another influenced the formation of the state and law, their original type and form. F. Engels noted the peculiarities of the origin of law and state in Ancient Greece, Ancient Rome, and the ancient Germans. Undoubtedly, the process of the state and law formation in other peoples, for example, the Slavs, also had certain specificity. The position of the early Russian state between Europe and Asia, its relatively rapid transition from a communal system to feudalism are of great interest. There is a wealth of scientific literature and fiction on this subject.
      Accumulation of new factual material, further development of science and methodological toolkit, on the one hand, and the complexity in study and definition of these processes due to their great originality in comparison with the already studied European models, on the other hand, have stimulated the attention of scientists to the processes of formation of state and law, given rise to various points of view that should be known.
      The ways of law origin and its ancient sources (forms) are of considerable interest. These include the Code of Hammurabi in Babylon, the Manusmriti in India, the Law of the Twelve Tables in Rome, etc. Equally interesting are the sources of law of ancient and medieval Russia. But in general, the history of emergence and formation of the state and law in different countries will be taught (and studied) in more detail in the relevant history courses.

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        1.2. Concept, features, functions of law and state

      First of all, we should ensure understanding of the concept of the political system of the society, its essential features and structure. It is important to understand the causes and stages of development of the political system, and highlight the general and the special features in formation and development of political systems in different societies, paying special attention to the characteristics of the political system of Russian society.
      The pride of place in the political system of the society goes to state as the only organization with political power, interconnected and interacting with other elements of the political system -parties, mass public organizations, various associations, the church, territorial and labour collectives, non-governmental, and mixed commercial structures. It is also important to understand in what ways other elements of the political system affect the exercise of political power (the influence on defining the political line, participation in formation of state bodies, in performance of state functions, etc.), for which organizations these or other ways are specific. Special attention should be paid to the relations between the state and political parties (associations) with commercial organizations. We need to characterize and generalize the comparison of various political systems of our time, including their regulatory framework, including the legal aspect. It is customary to distinguish the following types of political systems: democratic, autocratic, theocratic, transitional. It is necessary to dwell upon the characteristics of modern states in relation to their varieties such as totalitarian, authoritarian, liberal, and democratic, paying special attention to the specifics of the modern, reforming state.
      The reform of the political system of Russian society is the most important means and the guarantee of ensuring transition to a democratic, social, state of law and a civil society. Students need to know the main content of this reform. Its main areas, including those related to law.

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        1.3. Form of state: form of government, form of government structure, political regime

       It is necessary to gain insight into the concepts of the form of the state, which includes the following elements: form of government, form of state framework, and political regime. The students need to know the types of forms of government, state framework and political regime, to be able to characterize each of them, making relevant examples. For Russia, the problem of choosing between presidential, parliamentary or mixed form of republican government, as well as the form of federal framework, is relevant now.
       The state, inter-state entities and various international institutions are clearly determined by law in their manifestations. They are often very much influenced by international law and are subject to international legality, which imposes certain prohibitions and restrictions for the sake of establishing international legal order. The UN, continental and other unions of states, public organizations and social movements operate in the international arena. The regulatory function of international law is becoming increasingly effective. It is recommended to be well-versed in mechanisms of legal support in relation to the most vital global problems. It is important to know the role of international law enforcement agencies and the place of the modern Russian state in them.


        1.4. Concept, types, structure of legal rules

       In this topic, it is necessary to understand, first of all, the concept of the legal norm and its features.
       Legal rules reflect social reality. They result from realization of the need for its legal mediation, and the necessity to regulate social relations by law. Legal norm has a certain essence, content and form, occupying an independent position in the legal system. In legal norm, we should distinguish logical, socio-legal, and volitional content.


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       The essence of legal norm as the most profound, basic property coincides with the essence of law as a whole, but the essence of legal norm is not so obvious as the essence of law, since its essential manifestations are limited to a certain type of social relations, the direct content of legal norm is expressed in the information contained therein.
       Signs of legal norm include: universality; general effect; formal clarity; determination or authorization by competent state authorities; ability to regulate social relations through the legal information contained therein, the specific structure and, very importantly, state guarantee; the provision of the coercive force of the state and the consciousness of members of society; repetitiveness of operation.
       The social purpose of legal rules and, consequently, their value are determined by their regulatory role: they are to consolidate relations that are necessary and desirable for the society and the state, they give these relations stability and contribute to their development, protecting them from violations and affecting undesirable for the society and the government relations in order to limit, oust, and eliminate these violations.
       The structure of the legal norm is understood as the internal structure of the norm, its constituent parts (structural elements), their mutual disposition and relationship.
       Legal rules, as well as any social norm, are constructed on the model of conditional assumption: “if..., that..., otherwise...”.
       It is necessary to learn to distinguish such structural elements of legal norm as hypothesis, disposition and sanction in the rules of different branches of law: administrative, civil, criminal, criminal procedural, and others.
       Legal rules go hand-in-hand, providing a total positive result, some rules (regulatory) govern the positive actions of people, others (guarding) protects against offenses. In each legal norm, directly or referentially, but necessarily there are three elements—hypothesis, disposition and sanction. The absence of sanction in regulatory norms does not mean that they are not enforced by the state and its coercive power. The will of the state is in all cases implemented through the rules containing sanctions—the protective rules.

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       The structural elements of legal rules in their composition (structure) can be simple, complex, and alternative.
       We need to pay attention to the ways and features of the presentation of legal rules in the articles of a regulatory legal act, to the ratio of legal rules and articles (parts, clauses, paragraphs) of regulatory acts. There are simple, reference and blanket ways of presentation.
       Depending on the degree of generalization of the factual circumstances referred to in legal rules and the actions prescribed by them, there are casual and abstract presentation of hypotheses and dispositions.
       All these provisions need to be confirmed by examples of regulatory legal acts (laws and by-laws).
       For legal theory and practice of legal rules application, their classification is important, especially their sectoral classification by the subject of legal regulation, which is represented by a certain type of social relations.
       The classification of legal rules by the limits of their application is connected with the legal force of regulatory legal acts containing elements of rules, and with the competence of the state bodies issuing these acts.
       It is necessary to know the characteristical features of substantive and procedural law.
       Legal rules need to be differentiated by their role in regulation of social relations into regulatory (legislative), protective and specialized ones. The latter are devided into the following types: general (constitutional), definitive (containing definitions of terms and concepts), declarative (program, goal-setting), operational, and conflicts-of-law rules.
       According to the degree of binding, regulatory norms are divided into mandatory and dispositive.
       According to the scope of regulatory effect, legal rules are divided into general, special, and exclusive.
       According to the nature of the prescription contained in disposition, they are divided into authorizing, binding, and prohibiting. There are also incentive rules.
       Classification of legal rules on this basis determines their wording in regulatory acts.

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