SENSO-PERCEPCIÓN
2.2.3. Rutinas De Pensamiento
Ponomarenko E.V.
Ph.D. in Law,
Assistant Professor of the Department of Theory of State and Law and International Law,
The Institute of State and Law of Tyumen State University,
applicant of the Department of Theory of State and Law and International Law, Ural State Law University
Abstract
Goal. To overcome person’s alienation from the forms of activities in law, to embody the ideas of legal humanism in the Russian legal system. The meaning of the idea is to “humanize” a legal system and to create a legal system focused on a person, his rights, and freedoms.
Methods. The author uses a method of material dialectics, analysis and synthesis, deduction and induction to address the issue. The methods have enabled to make a necessary analysis and come to logical generalizations. Analysis enables to conclude that a person is alienated from the forms of activities in law: he is alienated from his own legal awareness, legal will, and legal interest. Synthesis justifies the category of legal mastering to overcome person’s alienation from the forms of activities in law and to embody the ideas of legal humanism in the Russian legal system. Deduction implies that we should change the ratio of the “law” and “person” notions and elevate a person in a legal system to embody the ideas of legal humanism. Legal ideas of mastering humanism by a person and society provide the elaboration of the issue of modern legal humanism. Humanization (spiritualization and transformation for the benefit) of a legal system is formed as a gradual change of the ratio of “law” and “person” notions. Induction recreates the category of legal mastering as rational-critical, intellectual, and law-cognizing activities to overcome person’s alienation from the forms of activities in law and to embody the ideas of legal humanism in a legal system. It treats a person as a particular individual – homo juridicus capable of identifying himself and admitting his own human originality. A person becomes like this when he acquires a right for himself, his corporeality, and spirituality not only through the attribute of power, property, and right, but also through other phenomena: morality, diligence, justice, virtue etc.
Result. Legal mastering expresses the activities of a law-cognizing intellectual-volitional actor (homo juridicus) who is able to become aware of legal being and strives for the freedom of will as a moral virtue - the realization of legal humanism in the Russian legal system.
Discussion. The reference to legal humanism as a perspective of development of the theory of law is associated with natural human rights and freedoms already implemented in a legal system, legal awareness, and a civil society. S.S. Alekseev assumes that a stronger focus on panhuman values and humanitarian foundations in our worldview in modern condition coincided with an actually growing role of law in social life1.
Keywords: legal humanism, humanization of a legal system, legal mastering, legal intelligence, person’s alienation.
1Alekseev S.S. Teoriya Prava [Theory of Law]. Мoscow. BEK, 1993 . Pp. 8-10.
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Legal humanism and values of civilization and culture influence the categories of the theory of law. High legal abstractions and ideals are gradually embodied in practical jurisprudence and everyday legal awareness. Panhuman values, which were crucial throughout the ХХ century, have an essential role in this area. They changed a “reference point” of legal values on Earth. Values is a specific social definition of the objects of the world around that reveals their positive and negative qualities for a person and society (benefit, the good, the evil) encompassed in the phenomena of a social life and nature.
For humanism, a thesis about the emergence and development of human nature as a value, their place in reality and the structure of the world of values, about a person as a center of this world of values, and about the association of various values with each other, with social and cultural factors and the structure of a person is a priority. The basic category of the theory is a person as a value and panhuman values, i.e. all the variety of objects of human activities, social relations and related natural phenomena. They can act as “objective values”, i.e. be evaluated in the context of the good and the evil; truth and non-truth; beauty and ugliness, the admitted and the prohibited; the just and the unjust etc.
The ideas of humanism mean that a person has no single one-dimensional being; he cannot be described in the terms and properties of the objects of physical world like nature. A person exists as a triple unity of body, soul, and spirit as a bio-socio-spiritual essence.
The embodiment of the ideas of humanism in law is associated with the transformations in society, state, and law. In law, the ideas of humanism are formed as a gradual change of the ratio of “law” and “person” notions. The meaning of the idea is to “humanize” a legal system and to create the legal system focused on a person, his rights and freedoms.2 A human, his rights and freedoms are the center of
transformations of a state, law, a legal system, law making, law-realization, law enforcement, legal regulation, the sources of law, areas of law, and a legal process in general.
The idea that legal humanism should be studied not only as a phenomenon of civilization and culture, but also as achievements in the development of a human society and social relations attracts attention too. Law should occupy a key place at the modern stage of human development. It as if sets the normative references that enable to arrange social life, to guarantee natural rights and freedoms for a person and to realize individuality that is in human nature.
The specific of natural rights and freedoms is associated with the individual qualities of a person itself. Natural inalienable rights and freedoms are given to a person by birth and cannot be cancelled or changes by anyone. They allow an individual to be himself. An individual as if becomes a value not only for society but also for himself. He is not just a value but also a legal value, since all the rights and freedoms, which characterize social and human qualities of an individual are not regulated by anyone and are inherent in an individual.
Natural and subjective rights resist tyranny and lawlessness and occupy a central place thereby; besides, they are the factor of social progress. In this respect, these rights can be a phenomenon of culture. To fix spiritual values and achievements elaborated by society (democracy, human rights, morality) in a normative form.
Resent social changes led to significant reorientation of the content of the ideas of legal humanism in natural and subjective rights. The ideas of legal humanism have long been perceived as social benefits, while recently, there is an obvious transition to treating the essence of the approach within a framework of panhuman values. Undoubtedly, this is caused by the change of hierarchy of values in society in general on the one hand; one the other hand, this is somehow influenced by the process of building a legal state in the Russian Federation. Natural and subjective rights are gradually filled by the content of the phenomena of civilization and culture. The principles of human being are revaluated, legal awareness
2Perevalov V.D. Teoriya Gosuderstva i Prava [Theory of State and Law]. A textbook. Moscow. Vysshee
Obrazovanie, 2005. P. 134.
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is essentially changed. Normative ideals set by a dominating ideology of Marxism are gradually left behind.
The issue of a place and role of a particular person in society has become relevant not only at the level of theoretical reflection, but also invaded everyday consciousness. Each member of society perceived the need for natural and subjective rights and their truly regulative character probably more clearly than ever before. The attempts to create new laws (sometimes, not successful) made by Russian legislators made us think about the phenomena themselves – natural and subjective rights.
It is legal humanism that enables to study, comprehend, and identify the essence, meaning and true nature of the elements and parts of the theory of law.
High legal abstractions and ideals are gradually embodied in practical jurisprudence and everyday legal awareness.
In modern period of development of a domestic theory of law, legal phenomena are more often considered from the perspective of rational-critical and intellectual transformations. And this is just. An approach to law only as a product of state power is gradually overcome. Each step toward the humanization of a legal system and legal ideas of mastering humanism by a person and society are able to bring the humanity itself closer to a completely new value legal worldview, which contributes to spiritual and moral revival of a person and society and their meaningful-value existence in legal reality. The issue of person’s alienation from the forms of activities in law was formulated by S.S. Alekseev in his work Teoriya Prava [Theory of Law]. In the course of time, in the epoch of global changes, it was necessary to rethink the approaches to legal phenomena.
The essence of this alienation is that during social development, a human is alienated from certain forms of his activities – property, institutes of power, law, institutes of culture. In this regard, they are estranged from him3.
To solve the issues of person’s alienation from the forms of activities in law, to overcome alienation, to study a person as a particular individuality in modern Russian legal tradition, we should reconsider some representations of a person and the world he lives in and explores.
The issue of person’s alienation from the forms of activities in law is associated not only with a person himself – a particular individual, but also with his consciousness and legal awareness. A modern Russian legal tradition has long considered legal awareness in isolation of a person - a particular individual. Researchers constructed both a person and his legal awareness according to the principle of abstract universality. A human was mastering the qualities of an abstract-universal creature and turning into an endless observer and a transcendent subject. The more he represented a general substance, the more he acquired a mystified form. Here, we have the nature of independent abstract universality. Legal awareness was constructed according to the principle of the same abstract universality as the substantial Absolut and Power of Reason. It acquired a clearly mystified form and manifested the nature of independent abstract universality4.
Impersonal existence of a person, his alienation from the forms of activities in law is associated with another issue - limited realization of his (person’s) legal interests. For a person, the specifics of this situation is that he lives among such forms of activities as power and property and defines his legal interest in a pursuit of satisfying the needs that do not allow him to comprehend the freedom of manifesting his “Ego” and to find his own, individual legal existence based on humanitarian and panhuman values.
Legal interest is considered as a subjective meaningful need (Gukasyan R.E.). Some authors treat the interest in law as objective references for becoming aware of and mastering the object of need as a
3 Alekseev S.S. Teoriya Prava [Theory of Law]. Мoscow. The publishing house BEK, 1993. P. 17
4Buchidze Т. Gegel o Suschnosti Filosofii [Gegel about the Essence of Philosophy]. Tbilisi, 1981. Pp. 2-15.
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subject’s need in an economic benefit (Chechot D.M.). I.e., a legal interest is a socially determined and socially conditioned need or striving for satisfying one’s needs in law.5
Thus, we see three parts of the issue of person’s alienation from the forms of activities in law. 1. Alienation of a person himself – a person as abstract universality – an alien. 2. Alienation of a person – a particular individual from his legal awareness. 3. Alienation of a person – a particular individual from his legal interest, perception of a legal interest as a pursuit of satisfying needs.
A person exists in the world around in isolation from legal humanism and panhuman values, in isolation from his own legal awareness and a law-cognizing interest.
The solution of the issue of person’s alienation from the forms of activities in law and the overcoming of alienation are associated with the category of legal mastering. Legal mastering is an independent form of activities of a particular individual in law; it enables to overcome person’s alienation not only from power and property, but also from his (person’s) legal awareness and legal interest.
The concept of legal mastering can become a basis for studying the category of “person – particular individual” in the theory of law. It enables to change the representations of the theory of law about a person in a legal system, to justify the necessity of the category “particular individuality” for the transformations of the Russian legal system from the Soviet system to a legal system focused on a person, his rights, and freedoms based on legal humanism.
We treat a person as a particular individuality, since he is capable of overcoming impersonal and alienated individual existence by his objective qualities. A particular individual is a real actual individual, an intellectual-volitional actor, a person who realizes his legal qualities, admits his human originality, can aware legal being (legal intelligence) and strives for the freedom of intellectual-legal will as a moral virtue.
In reality, the legal ideas of mastering humanism by a person and society are formed as a gradual change of the ratio of “law” and “person” notions. The meaning of the idea is to transform the post-Soviet legal system into the Russian legal system focused on a person, his rights, and freedoms.
In the course of time, the approaches to legal phenomena change. Earlier studied issues (legal mechanisms of protecting natural rights and freedoms of a person, free discretion of an enforcer etc.) become increasingly acute. The changes in Russia have required rethinking of the established representations of the ratio of law and a person. Such rethinking should meet the objectively grown and real processes of elevating a person in the life of society. The “elevation of a person” itself in a real and categorical context provides “legal mastering”.
The author offers the concept of modern legal humanism as an alternative to existing concepts. The concept of modern legal humanism implies the change of the ratio of “law” and “person” notions, the elevation of a person in a legal system, and legal mastering as overcoming person’s alienation from the forms of activities.
Legal ideas of mastering humanism by a person and society can provide the elaboration of the concept of modern legal humanism.
Conclusions: The human context of a legal idea of mastering humanism by a person and society enables to change the representations of the theory of law about person’s place in a legal system, justifies the need
5 See: Matuzov N.I. Pravovaya Sistema i Lichnost [Legal System and Personality]. Saratov, 1987. P. 21;
Shaikenov N.A. Pravovoe Obespechenie Interesov Lichnosti [Legal Support of the Interests of Personality]. Sverdlovsk, 1990. P. 17; Ekimov A.I. Interesy i Pravo v Sotsialisticheskom Obschestve [Interests and Law in Socialist Society]. Мoscow, 1984. Pp. 73-89; Zdravosmyslov A.G. Potrebnosti. Interesy. Tsennosti [Needs. Interests. Values]. Мoscow, 1986. P. 75.
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for the category “legal mastering” for the transformations of the Russian legal system from the post- Soviet system to a legal system focused on a person, his rights and freedoms based on legal humanism. It actualizes a person and serves as a basis for changing person’s interest in law from the needs to his formation in the form of spiritual-moral benefits and values and the embodiment of such person’s interest in natural-legal foundations of the Russian legal system. The establishment of the concept of modern Russian legal humanism as an alternative to the existing concepts will be the strongest stimulus for a legal thought and will provide the progress of modern legal knowledge.
Abstract: The solution of the issue of embodying the ideas of legal humanism in the Russian legal system enables to make conclusions; 1. The Russian legal system needs the ideas of legal humanism. 2. Analysis enables to conclude that a person is alienated from the forms of activities in law. Synthesis justifies the category of legal mastering to overcome person’s alienation from the forms of activities in law. Deduction implies that we should change the ratio of “law” and “person” notions and elevate a person in a legal system to embody the ideas of legal humanism. Induction recreates the category of legal mastering as rational-critical, intellectual, and law-cognizing activities to overcome person’s alienation from the forms of activities in law and to embody the ideas of legal humanism in a legal system. 3. Legal mastering expresses the activities of a law-cognizing, intellectual-volitional actor (homo juridicus) capable of being aware of legal being and striving for the freedom of will as a moral virtue - the execution of legal humanism in the Russian legal system.
References
1. Alekseev S.S. Teoriya Prava [Theory of Law]. Мoscow. BEK, 1993 . Pp. 8-10.
2. Perevalov V.D. Teoriya Gosuderstva i Prava [Theory of State and Law]. A textbook. Moscow. Vysshee Obrazovanie, 2005. P. 134.
3. Alekseev S.S. Teoriya Prava [Theory of Law]. Мoscow. The publishing house BEK, 1993. P. 17. 4. Buchidze Т. Gegel o Suschnosti Filosofii [Gegel about the Essence of Philosophy]. Tbilisi, 1981. Pp. 2-15.
5. Matuzov N.I. Pravovaya Sistema i Lichnost [Legal System and Personality]. Saratov, 1987. P. 21; Shaikenov N.A. Pravovoe Obespechenie Interesov Lichnosti [Legal Support of the Interests of Personality]. Sverdlovsk, 1990. P. 17; Ekimov A.I. Interesy i Pravo v Sotsialisticheskom Obschestve [Interests and Law in Socialist Society]. Мoscow, 1984. Pp. 73-89; Zdravosmyslov A.G. Potrebnosti. Interesy. Tsennosti [Needs. Interests. Values]. Мoscow, 1986. P. 75.