The Structure of Practice and Quality of the Objective Law

Author Name(s): АleksandrV.Pogodin, Eduard V. Krasnov, Rafail' G. Valiev
Author Email: pgd13@bk.ru

Abstract

The quality of objective law significantly affects the legality and law and order in the society and the state. One of the factors for improving the quality of law is theoretical knowledge about the regulated practice structure. The article contains a theoretical description of the practice structure elements in statics and dynamics, their influence on the quality of content and form of objective law. The material presented in the article enriches and complements the modern concept of socially significant practice. The conclusions contained in the article contain a number of theoretical and methodological provisions. It is pointed out that any socially significant practice represents a local social system (a subsystem of the society) even at the formation stage and especially in the developed state. The authors also emphasize that new legal institutions and relevant practices of the exercise of law are emerging, and the non-traditional branches of law are crystallized on the basis of existing or newly emerging institutions. The authors argue that in order to provide the necessary and sufficient normative basis for the exercise of the rules of law, the content of a certain legal institution (branch and substantive law in general) should correspond to the social content and structure of the regulated practice. In addition to the above, the authors believe that it would be wrong to identify the social-substantive content of law only with the positive facts existing in practice.

Introduction

The substantive law regulates various socially significant practices-objects. Specific practices, such as elections, consumer lending practices, become socially significant and serve as a material basis – a source of law, if it:

a) affects the interests of at least some part of the society and the state, therefore, it has quite certain private and public subjects and relevant organizational structures;

b) has its own socially-objective content and values created in the limit of this practice;

c) has an ideology localized in a specific practice and the policy formed on its basis, which is obligatory for the practice participants, since the policy of a specific practice is fixed in the form of law as the political decisions;

d) is subject to social and legal regulation;

e) may be subject to control by the institutions of the civil society and the state.

The procedural norms regulate the resolution of conflicts and the elimination of deformations that occur in practice regulated by the substantive rules. As a result, the jurisdictional law enforcement practice is formed in a particular socially significant practice-system as its subsystem. The social-subject specificity of regulated practice is primary in its genesis in relation to law; it cannot but is reflected and manifested in the form and content of law. Theoretical knowledge of this specificity, especially knowledge of the regulated practice structure, is a necessary condition and prerequisite for the creation of a quality objective law with a minimum number of defects.

Summary

The analysis conducted makes it possible to formulate a number of theoretical and methodological provisions and an in-depth understanding of how to improve the quality of objective law on this basis:

  1. Any socially significant practice represents a local social system (a subsystem of the society) even at the formation stage and especially in the developed state. It has a stable structure in the stability phase: in the statics, it consists of various functionally interdependent elements, and in dynamics – of public and private social relations, among which the leading role belongs to the functional relations that determine the practice specificity.
  2. In the modern dynamically developing society and the state, the content of law and the exercise of law are constantly being changed, in particular, it is distinctly traced the processes-trends of differentiation and integration: the new legal institutions and relevant practices of the exercise of law are emerging, and the non-traditional branches of law are crystallized on the basis of existing or newly emerging institutions.
  3. To ensure the necessary and sufficient normative basis for the exercise of the rules of law, the content of a particular legal institution (industry and substantive law in general) should correspond to the social-subject content and structure of the regulated practice, that is, the objective law, in the textually expressed form, includes those practice components that are regulated by various norms of this institution.
  4. In It would be wrong to identify the social-substantive content of law only with the positive facts existing in practice. The subject-rulemaker introduces new elements into it and this is also an integral part of the legal institution and the law as a whole. In a nutshell (within the problem settlement), these innovations depend on the social practice resonance, and even more on the legal awareness and discretion of the subject. Ideally, they (innovations) are aimed at optimizing practices, increasing its effectiveness and stability.
  5. The socio-substantive content of the material legal institution, especially in its ideological part, there is a project or normative model of what can and should be a regulated practice today and in the short term. This is an ideal that does not coincide with the realities of reality, and individual elements of the model seem generally inaccessible.

Acknowledgements

The work is performed according to the Russian Government Program of Competitive Growth of Kazan Federal University.

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