XV Международная студенческая научная конференция Студенческий научный форум - 2023

One of the core tasks of juridical science in law-making is to identify common patterns of law development trends, that change the shape and structure of the law, its basic elements and mechanisms of their cooperation.

Subject matters of legal regulation continue to expand. There appear new social phenomena in the areas, which previously were out of the law scope. Environmental law and technical regulation, which are forming the new legal framework at full speed, are the most apparent examples.

Boundaries between branches of legislation and even deep layers of public and private law has become increasingly flexible. Not only the domestic civil legislation proves this phenomenon, but also the classic Civil Code of France, which incorporated in the past decade a great variety of public-law rules. The draft of the contract law reform, published on February 25, 2015, by the Ministry of Justice of France, also maintains such mixture of the elements of law [3].

In recent years in all developed countries there have appeared new legal schemes that complement the existing or form independent systems and institutes of legislation. Such processes are most visible in the sphere of information and modern information technologies, energy supply, use of bio-medical methods. At the same time the functions and the role of classic branches of legislation are changing. Penetration of the constitutional law into the government and public life has deepened, which resulted from not only the increase of the topic areas of constitutional regulation, but also from more intensive constitutionalization of legislation and law-enforcement practice [4].

At the same time one can observe the processes of the international law expansion that inorbs larger and larger segments of national legal frameworks.

Thus a new composition of national legal systems emerges. It is evident, that such phenomena require their subsequent modernization, one of the core areas of which is constant renewal of legislation and law-enforcement practice with the aim of their aligning with the international legal standards. And this process becomes increasingly broad-scale with proliferation of international organizations and their activity.

Modernization of law manifests itself also in shifting the vector of development of law to the sphere of social and humanitarian issues, which allows ensuring the balance between private, social-group and nation-wide interests [5]. It also manifests itself in high dynamics of centralization and decentralization processes of legal regulation, performed not only by federal but also unitary states [6].

One can notice an increasing tendency to ensure a balanced combination of methods of legal and non-legal pressure, mandatory and optional provisions as one of the areas and at the same time means of modernization of law. Thus, in public law branches, where as a rule there is no equality of parties, they have started to use agreements and contracts which proves the implementation of more flexible regulatory forms based on the principles of self-coordination. In the private law sphere public-law tools are used, including those from the toolbox of anti-trust and anti-corruption legislations.

The combination of private-law and public-law tools does not only affect the dynamics of legal pressure, but also provides a spark to the universal development of public private partnership, appearance of institutes with hybrid legal nature, that includes public and private principles (in particular, legal entities of public law).

The second core task of contemporary juridical science in the law-making area is scientific support for law systematization.

Developing social relations increasingly becomes complex and intricate in nature that is why they do not always fit into the existing forms of law systematization. Some rules are recognized as improper for systematization due their uniqueness or constraints of their effect in space and time. The situation is aggravated by the formation of independent legal entities that are inconsistent.

And nevertheless systematization of legal and regulatory material continues to be widely used almost everywhere. As before preference is given to classic branch codes: enactments regulating a specific area of public relations and explicitly reflecting scientifically grounded distribution of regulatory material in accordance with the subject and method of legal regulation.

Alongside with the above there are also implemented the forms of intersectoral systematization of legal and regulatory material, that regulate specific areas of the federal and social life. For example, France publishes codes on cinematography and animated cartoons, environment, jurisdictions, scientific researches, tourism, urbanism etc.

Systematization of law is enriched by new forms of incorporation and consolidation of legal and regulatory material, that decrease the diversification level of laws and regulations, their narrow subjects, gaps and contradictions in legal regulation.

The world practice rather extensively implements the forms of nonofficial systematization of legal and regulatory material. The classic example is systematized materials collection of rules of law that is updated from time to time by the American Law Institute, on a large range of legal topics - conflicts of law, agreements, property, trusts etc.

It is reasonable to use such a wide armoury of legislation systematization in Russia as well, which requires its constant studying.

The third core task of the juridical science is the development and improvement of the law-making standards’ system. The research confirms that their origins can be revealed in well-known ancient sources, including the famous treatise ‘Artha-Shastra’ (the Art of Management). Composed two and a half thousand years ago, it established such ‘genuine’ requirements for rules and regulations, as ‘consistency, coherence, completeness, cleanness of style, splendor of style and clarity’.

In modern juridical science the law-making standards’ catalogue has broadened considerably. Besides the requirements to rules and regulations, samples of organization and activities of law-making authorities are reviewed, the observance of which creates organizational prerequisites for implementation of the ideal of a democratic declaration of will in a law-bound state. It also includes professional training standards for law-making experts, as well as criteria of law-makers’ selection, about which great philosopher Thomas Aquinas wrote back in XIII century, calling to search for ‘wise persons who can make good laws’. This has become a topic for ample discussions in legal community in XXI century.

In the contemporary world law-making standards are embodied not only in scientific works, but also in legislative enactments, parliamentary rules, official instructions on preparing rules and regulations.

Achievements of the juridical science in the area of law-making are best reflected in laws on rules and regulations, which are in effect in Italy, Japan, Bulgaria, Kazakhstan, Belarus, Uzbekistan, Georgia, Azerbaijan and a number of other countries.

The Institute of Legislation and Comparative Law under the RF Government in an initiative manner developed a draft of such a law back in the 1970s. One of its latest versions has been accepted as the basis for the draft law ‘On Rules and Regulations in the Russian Federation’, prepared by the RF Ministry of Justice and is currently under public debate.

In many states the concept of the law about laws is implemented in other legal forms.

Back in 1837 the House of Representatives of the US Congress made the Manual of parliamentary practice, first published by Th. Jefferson in 1801, a legally enforceable enactment. Since that time the Manual has been updated reflecting the changes and requirements to the legislative procedure and technique.

In Poland in 2002 the Chairman of the Council of Ministers approved ‘The Rules of Legislative Technique’.

In Germany ‘Recommendations on Uniform Execution of Laws and Regulatory Resolutions’ developed by the Federal Ministry of Justice are in effect.

In France the requirements of the legislative technique are enshrined in Prime-Minister’s circular notes ‘On Quality of Law’ of 2011, ‘On Rules for Drafting, Signing and Publishing of Legal Enactments’ in ‘Journal Officiel’, and also in ‘Manual on Law-Making’ (as amended on March 4, 2015).

Juridical science also faces other tasks in the law-making area, including those aimed at the increase of its efficiency, harmonization of national and international law regulators, securing efficacy of the applied legal technologies.

On Legacy and New Horizons of Juridical Science. It is necessary to preserve and further develop the juridical science legacy in the law-making area. Until now it has been formed, basically, through the efforts of its representatives and by utilizing technologies and tools of positivistic trend in the juridical science.

But the potential of the juridical normativism (positivism) on law-making activity improvement is to a large extent exhausted. That is why in recent decades technologies developed in the interior of other areas of the science (sociological and realistic, communicative and psychological, economic and historical) have been increasingly penetrating in the law-making area.

O.W. Holmes, Jr., one of the founders of the realistic trend in legal science, claimed that ‘the life of the law has been experience’, that the law should be studied mainly in action, revealing not only existing drawbacks of legal regulation, but also needs for its renewal.

To a large extent the same ideas have been upheld by the sociological trend of the juridical science, brilliantly represented in Russia by M.M. Kovalevskiy and M.N. Gernet, one of the founders of the Institute of Legislation and Comparative Law.

These traditions were carried on by the Institute in the 1960-s, in particular, in the research works of I.S. Samoshchenko, V.I. Nikitinskiy, A.B. Vengerov, dedicated to the efficiency of legislation. Later on the basis of these research works legal technologies were developed for assessing the current legislation, for forecasting its future development, projecting law-enforcement practice.

Since 1994 in the tideway of combining classic and contemporary scientific approaches the Institute has been publishing constantly updated ‘Development Concepts of the Russian Legislation’. Currently the work is about to be completed on the seventh edition of this fundamental monographic publication, the main aim of which is to forecast general development trends of legislation.

Other, more applied research is necessary aimed at forecasting legal situations and risks, as well as planning of early works on legal solution of problems caused by them. They permit to decrease the number of scratchy draft laws, ineffective and sometimes absurd legal solutions.

The example of such works being the Concept of the Arctic law development, drafted by the Institute in 2014 on the basis of an intensive study of the legal and regulatory framework for the Arctic. The analysis of about 3.000 laws and regulations with the ‘Arctic’ content effective in Russia and in foreign countries, and the practice of their implementation permitted to define such a phenomenon as the Arctic law, having determined the structure of its legal framework, the place and role in the system of other legal entities, to offer scientifically grounded forecast of the international law and national law regulation of the Arctic.

Monitoring of civil law-making initiatives can render substantial assistance in forecasting and planning of law-making activity. In recent years this tool has been widely implemented in many states with the aim to identify public mood, for which Sima Qian, the father of the Chinese historiography, advocated in II B.C.: ‘Give to people what they wish and quickly deliver them from what they reject’.

The attempts to implement such mechanism have been undertaken in Russia, too. On the ‘Russian Public Initiative’ site, established by the Executive Order as of March 4, 2013, No 183, more than 5.000 public initiatives have already been posted. This ‘measuring facility’ for the perception by the society of the current legislation and the identification of objective needs in its renewal for the purposes of legislative improvement requires more careful examination.

Law-making needs are not limited to the federal level and all the more so it is not enough to conduct few and far between legal sociological field researches in the RF constituent entities, since they are an essential tool of timely identification of impulses to legislative changes. Therefore long-term exploratory experience of the Institute of Legislation and Comparative Law under the RF Government can be of theoretical and practical value.

But such possibilities of the majority of scarce scientific-expert centers are rather limited, which decreases the possibilities to forecast the legislation development in general.

In foreign law-making practice they implement the technology of the psychological trend of the legal science, represented in Russia by the works of L.I. Petrazhitsky. In particular, they use methodologies of neuropsychological assessment of draft laws which allow not only identification of the level of perception in the social consciousness of the drafted legal solutions, but also intensification of their impact through specific stylistic methods and means.

Methodologies of this kind are used abroad for the law-making practice improvement. Due to this it is necessary to reverse the available doctrinal bundle of knowledge into scientific use to resolve new tasks of the contemporary law-making.

In the foreign doctrine the communicative trend has taken its stand, which is based on the concept that the law may not be identified with the will of a state only; it includes rules of other regulators, including religious, ethic, ethnic-communal, corporate and others, which go far beyond authoritative powers of a state (J. Habermas, M. van Hoek and others).

Consequently, in the study and improvement of the law-making and law-enforcement activity the primary focus is on cooperation between existing social regulators, which is of special importance for the states with complex ethnic and social composition. Such research was known in Russia at the end of XIX – in the beginning of XX century, but during the Soviet and post-Soviet period it was downplayed. In the new time (in recent decades) individual research works have been undertaken. However they could be useful not only for understanding ethnic-social processes, but also in the development of tools for their harmonization.

The concept of the economic-legal trend of jurisprudence has been used increasingly. For a long time it was associated with Marxist doctrines, but in recent years this trend has acquired a new context, pragmatic to a large extent and without ideologization, as a tool of intellectual, financial, human, organizational and other resourcing of law-making and law-enforcement activity.

In Russia the first steps in this direction were undertaken as part of the research of a constitutional economy, whose ideas have not yet found practical use.

One can also notice the renaissance tendency of the concepts of natural law and historical trends of the juridical science. Many of them possess large potential for improvement of legislation and law-enforcement practice, as they are aimed at consolidation of the legal consciousness and juridical will as core factors of a state and society’s sustainable development. We are talking about the concepts of F.C von Savigny, the founder of the historical school of law, who urged to reflect in the law the nation’s peculiarities, its language, morals and institutions. Two centuries after the same ideas are suggested by Chairman of the Russian Constitutional Court V.D. Zorkin, the Lord Chief Justice of Great Britain I. Judge (2008-2013), many other prominent politicians and lawyers of democratic and developed countries.

In theory and practice of other legal cycles, monopoly of any scientific juridical ideas and doctrines is impossible and unwelcome. They can find a use, if they serve the strengthening of the importance of the law and the solution of burning problems of legal development.

Law-making is certainly jurists’ domain, but it will be successful only under the condition of using the most recent knowledge, including that of economy, sociology, history, and political science. Only then it will be possible to create a legal framework, worthy of the very concept of the law. Therein, in fact, lies the mission of the juridical science in law-making.

List of literature:

Abramova A.I. Legislative Process in the Russian Federation: Problems and Perspectives: research and practice guide. Moscow, 2005.

Arlidge A., Judge I. Magna Carta Uncovered. Hart Publishing Extent, 2014.

Barenboym P.D., Gadzhiyev G.A., Lafitskiy V.I., Mau V.A. Constitutional Economy: college textbook. Moscow, 2006.

Braude I.L. Selection. Legislative Technique Studies. Certain Issues of the Soviet Law System. Moscow, 2010.

Dharma Shastra of Manu – a monument of Ancient India. Available at: http://bukvi.ru/obshestvo/istoriaprava/zakony-manu-pamyatnik-drevnejindii.html

Doctrinal Framework of Legal Technique / Managing ed. N.A. Vlasenko. Moscow, 2010.

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