Religious monuments (ancient religious texts). The history of the concept of legal doctrine, and its definition Legal doctrine definition
this is a special form of law, representing the works of outstanding legal scholars or generally recognized legal doctrines, which can be officially (with the approval of the state) referred to in the process of applying legal norms.
This form of law, along with legal custom, is the oldest way to consolidate legal norms. In the Anglo-Saxon and Muslim legal systems, during legal proceedings, references to the works of outstanding legal scholars as sources of law are possible. As a rule, the doctrine acts as a source of law in areas where legislative regulation has not yet been applied for one reason or another.
IN Russian Federation legal doctrine is not officially recognized by the state as a source of law. When considering a specific legal case, a court or other government body does not have the right to base its decision on scientific works or their comments. At the same time, in Russia, not a single legal doctrine or legal ideology is dominant, officially recognized or generally binding. However, when making a legal decision, officials use scientific and educational literature, scientists' comments on legislation as auxiliary unofficial material.
Legal life is a form of social life, expressed primarily in legal acts and legal relations, characterizing the specifics and level of legal development of this company, the attitude of subjects to the law and the degree of satisfaction of their interests. Legal life is associated with legal rules of conduct (prescriptions) and corresponding legal consequences.
Legal doctrine The principle of law is the fundamental idea of law (justice, democracy, presumption of innocence, harm caused must be compensated, etc.).
Legal doctrine is a system of views, ideas about law, its principles, set forth by recognized authorities in the field of jurisprudence. These are theoretical provisions, scientific theories of a legal nature, which formulate essential principles, legal categories, concepts, views of legal scholars. In some countries, legal doctrine is the source of law. Thus, in English courts, when resolving specific cases, it is customary to refer to the works of famous lawyers in support of the court decision.
For a long time, legal doctrine was and is considered a characteristic source of law for the Romano-Germanic legal family. In Judaism, the source of law is the Written Torah (Tanakh) and the Oral Law, recorded in the Mishnah and Talmud. The most important forms (sources) of Muslim law are: the Koran - the holy book of Islam, the Sunnah, or traditions associated with the messenger of God, ijma, or “a single agreement of Muslim society” and qiyas, or judgment by analogy.
In the Russian Federation, legal doctrine is not recognized as a source of law. At the same time, competent scientific works and interpretation of constitutional legislation (for example, scientific commentaries on the Constitution, federal laws) are a kind of guiding principles for officials and government bodies applying the norms of constitutional law.
The term "doctrine" is used in its broadest sense, namely:
- a) as a doctrine, philosophical and legal theory;
- b) as the opinions of legal scholars on certain issues relating to the essence and content of various legal acts, on issues of lawmaking and law enforcement;
- c) as scientific works of the most authoritative researchers in the field of state and law;
- d) in the form of comments on various codes, individual laws, “annotated versions” (models) of various legal acts.
For such a source of law as doctrine, researchers note, “a dynamic factor is required. This means its credibility, relevance, influence, regulatory potential, persuasiveness.”
Doctrine closely interacts with science. However, it is necessary to draw a clear boundary between them. Equating the concepts of doctrine and science is a wrong approach. As S.V. emphasizes Boshno, in order to identify the differences between science and doctrine, it is important that not all ideas that actually determine the development of social relations have armchair origins. Some of them do not have an exact, much less a sole author, and do not have a specific, formal location. For a doctrine, its effectiveness, recognition, authority, breadth of distribution and influence on social relations, which allow this phenomenon to claim self-sufficiency, are of fundamental importance. It is necessary to distinguish between doctrine and ideology. A doctrine usually has evidence for its theses; it is rational. Ideology is more addressed to consciousness; it gravitates toward religious methods of influencing society. The above, however, does not deny that certain ideological positions have doctrinal origins. But what is presumed in ideology to be the fact of its origin, for doctrine is a prospect, a result to which it strives, which it can conquer.
Thus, the doctrine is a developed novelistic theory, reflecting the prevailing scientific opinion, which, due to its depth and authority, is in demand in social practice and in a certain way influences the legislator. The connection between a doctrine and its author may vary.
The role of legal doctrine as a vital source of law is manifested in the fact that it creates concepts and structures that are used by the law-making body. It is legal science that develops techniques and methods for establishing, interpreting and implementing law. In addition, the creators of law themselves cannot be free from the influence of legal doctrines: more or less consciously, but they have to take the side of one or another legal concept, accept its proposals and recommendations Lyubashits V.Ya., Smolensky M.B., Shepelev IN AND. Theory of Government and Rights. - Rostov-on-Don, 2002. - P.383. . However, one should not assume that this source of law has disappeared into oblivion. Currently, the Muslim legal doctrine continues to act as a form of law, which is confirmed by the legislation of Arab countries. For example, the family legislation of Egypt, Syria, Sudan, and Lebanon provides that in case of silence of the law, the judge applies “the most preferable conclusions of the type of Abu Hanifa.” There was a period when religious treatises also acted as a form of law. It is interesting to note that in English courts, when making some court decisions, one can still find references to the scientific works of individual lawyers, although they are no longer recognized as sources of law. These links are provided as additional argumentation, an element of forming the will of the judge, part of the motivation for the verdict or court decision. Legal doctrine is a system of scientific legal knowledge and beliefs based on it. The role of legal doctrine as a vital source of law is manifested in the fact that it creates concepts and structures that are used by the law-making body. It is legal science that develops techniques and methods for establishing, interpreting and implementing law. In addition, the creators of law themselves cannot be free from the influence of legal doctrines: more or less consciously, they have to take the side of one or another legal concept, accept its proposals and recommendations.
In order to analyze the process of influence of the doctrine of labor law on the formation of the institution of an employment contract, first of all, it is necessary to determine the content of the concepts “doctrine” and “legal doctrine”, since the legal doctrine is part of the doctrine as a whole, and the doctrine of labor law, in turn, acts part of legal doctrine.
In the very general view the term “doctrine” in the explanatory dictionary of S.I. Ozhegova, N.Yu. Shvedova is defined as a doctrine, a scientific concept (usually a philosophical, political, ideological theory) 1. Dictionary, compiled ed. S.A. Kuznetsova, points out that doctrine is understood as a scientific or philosophical theory, politic system, a guiding theoretical or political principle. Explanatory Dictionary by T.F. Efremova says that a doctrine is a set of officially accepted views on a problem and the nature of the means to solve it.
The Cambridge Dictionary defines the term "doctrine" as a belief or set of beliefs, including political and religious beliefs, accepted and expressed by a specific discrete group of people. The term is defined similarly in the Oxford Dictionary 1 and the international edition of dictionary.com, with the clarification that “doctrine” also means a system of teachings on a particular topic.
Thus, in dictionaries this term is mainly defined as a set of established views, beliefs, including scientific ones, on one or more issues held by a certain group of people. Therefore, the term “doctrine”, first of all, must be distinguished from the terms “idea”, “opinion”, “point of view”, which are single statements voiced and defended by one or more researchers that are not established at a given time.
So, in the philosophical dictionary, ed. I.T. Frolov defines the term “idea” as an explanation of the essence of a phenomenon, and “opinion” as unreliable, subjective knowledge. However, since within the framework of an established position, new concepts can also arise that fully or partially fit into the accepted system of views on this issue, it seems that the term “doctrine”, as well as the terms “idea”, “opinion”, “point of view” are regarding intersection.
political doctrine, ideological doctrine 1, social doctrine,
military doctrine, philosophical doctrine, doctrine of cognitive interest, etc. Separately, it is necessary to note the term “doctrine of constitutional restraint”, which is used in a number of acts of the Constitutional Court of the Russian Federation (for example, Resolution No. 11-P dated May 14, 2012) and is widely used in the science of constitutional law (it refers to the desire of this court to minimize the scope of legal norms recognized as unconstitutional).
In our country, the President of the Russian Federation and the Government of the Russian Federation have recently approved a number of program documents designated by the term “doctrine”. These include, for example, the information security doctrine of the Russian Federation, the military doctrine of the Russian Federation, the maritime doctrine of the Russian Federation, the food security doctrine of the Russian Federation, climate
doctrine of the Russian Federation 1, environmental doctrine of the Russian Federation, doctrine of the development of Russian science.
However, the question of the status of these doctrines in science is debatable. A.A. Vasiliev classifies them as normative legal acts, stipulating that their place in the hierarchy of sources of law has not currently been established. A.M. Zyukov, on the contrary, does not equate political doctrines with a normative legal act. S.V. Boschneau explicitly notes that political doctrines are not normative legal acts.
According to M.A. Kondratieva, the doctrines discussed above, as well as programs in the field of state, social, cultural development, public health, etc. are considered political documents, not normative legal acts. A.A. Zozulya defines state doctrines and concepts also as political documents, but at the same time speaks of their quasi-legal nature: “legal”, since they are adopted in the form of positive law (by-law, etc.), “quasi” due to the fact that that they contain political declarations formulated in the form of norms-goals, norms-principles, norms of competence and norms-definitions 1 .
Despite the fact that some of these documents were approved in the form of Decrees of the President of the Russian Federation and Resolutions of the Government of the Russian Federation, it seems that they cannot be classified as normative legal acts, since they do not contain specific rules of conduct; they often do not clearly define the subjects who would be prescribed any or a certain rule of behavior. In addition, as noted above, they mainly contain provisions for strategic planning in a specific area of public policy. The Constitutional Court of the Russian Federation in 1995, analyzing the provisions of the Decree of the President of the Russian Federation of November 2, 1993 No. 1833 “On the Basic Provisions of the Military Doctrine of the Russian Federation,” rightly noted that the provisions of this doctrine do not contain normative requirements,
since they represent a system officially adopted in the state
views on military issues.
Therefore, these doctrines (information security, military, maritime, environmental, etc.) can be classified as state and political doctrines, which are a set of program provisions that reflect the content and direction of development modern politics states in a certain area.
A number of scientists, within the framework of one doctrine, identify several elements that are designated as types, directions or “doctrines”. For example, V.A. Sidorov, as part of the political and legal doctrine, structured the doctrine of the relationship between law and morality into three parts: legal doctrine, natural law doctrine, libertarian legal doctrine.
For the purposes of this study, it seems most important to consider the issue of legal doctrine (the terms “legal doctrine” and “legal doctrine” are used in scientific research as synonyms and it seems possible to agree with this approach). This term is currently used quite often in legal literature, however, due to its polysemantic nature, there are different approaches to understanding it. By summing up the positions that different time were expressed in legal science, we can conclude that there are three points of view regarding the criterion for classifying scientific concepts as legal doctrine:
1) due to their recognition by the scientific community (R.V. Puzikov, E.O. Madayev, S.V. Ostroumov, N.V. Ostroumov, S.V. Boshno, A.R. Gilmullin, S.S. Zhelonkin , D.Yu. Lyubitenko, etc.);
2) due to their official recognition by the state or legal practice (A.A. Vasiliev, M.Yu. Emelin, etc.);
3) simultaneously due to their recognition by the scientific community, the state and legal practice (A.A. Zozulya, S.V. Baturina, etc.).
R.V. Puzikov distinguishes between individual points of view of scientists and legal doctrine as a complex result scientific research, coordinated into a single concept, and also defines it as a systematized result of the processing and processing process legal information, having a fundamental character, occurring as natural selection viable scientific ideas and concepts based on the principles of law, corresponding to the specific historical conditions of the development of society and the state. E.O. Madayev also does not make such a requirement for the legal doctrine as official recognition by the state or legal practice, and defines it as an element of the legal system of the state and legal activity, which has a scientific and applied nature and directly regulatory capabilities 1 .
S.V. speaks in a similar vein. Ostroumov, N.V. Ostroumov, who note that legal doctrine is created as a result mental activity legal scholars and is embodied in written works and oral advice to subjects of law and law enforcement agencies. S.V. Bosno noted that the terms “legal doctrine” and “legal science” are in relation to intersection, since generally accepted scientific ideas are simultaneously part of both legal science and legal doctrine, while scientific ideas that are not supported by the bulk of the scientific community , relate only to legal science, but are not a legal doctrine. A.R. Gilmullin emphasizes that the legal doctrine is inherently somewhat abstract, since it is developed by scientists, and also serves as a vector for the development of legal
A somewhat compromise point of view is expressed by S.S. Zhelonkin, according to whom legal doctrine can be defined as a set of scientific judgments of legal scholars, as well as general concepts developed by courts in the process of law enforcement. D.Yu. Lyubitenko also draws attention to the fact that a scientific concept can be classified as a legal doctrine if it is sanctioned by the state and formalized in legal sources or claims to acquire these qualities 1 .
A.A. Vasiliev notes that legal doctrine is the source of law, but at the same time understands by it only those generally accepted and authoritative ideas about law that the state recognizes as official by referring to them in normative legal acts or in legal practice. At the same time, this author also points out the systematic nature of the legal doctrine and that it determines the content and functioning of the legal system, and also directly affects the will and consciousness of subjects of law. M.Yu. speaks in a similar vein. Emelin, according to whom one of the signs of a legal doctrine is that it is sanctioned by the legislator or law enforcer.
A.A. Zozulya, on the contrary, considers legal doctrine as the entire set of legal-scientific interpretations and judgments about positive law, stipulating that the doctrinal nature of such interpretations and judgments is given by their recognition by the state (in the form of the embodiment of theoretical constructs in public policy, legislation, into the normative and casual legal interpretation of the rules of law) and the legal community as an agreed upon and dominant system of views in a particular historical period. S.V. Baturina also came to the conclusion that the doctrine is legal due to the fact that the concepts that are part of it are shared by authoritative legal scholars and are used in legal practice.
Of course, in each of the existing concepts of understanding the term “legal doctrine” and its essence, a rational grain is visible, however, the most preferable seems to be the first position, according to which the phenomenon in question is qualified as a set of scientific ideas and concepts as part legal science, recognized by the scientific community as fundamental, for which in the basic understanding there is no scientific discussion or it is reduced only to a discussion of individual aspects of the legal phenomenon under study. At the same time, it seems that the fact that the concept is recognized as doctrinal by the state in the process of adopting normative legal acts or law enforcement practice is not of decisive importance.
For example, in the science of labor law, it has long been a doctrinal (generally accepted) postulate that an employment contract is not a transaction, including within the meaning of civil legislation 1, therefore, the construction of invalidity of transactions (its nullity and contestability), which is enshrined in § 2 of Chapter 9 of the Civil Code of the Russian Federation (Part 1) dated November 30, 1994 No. 51-FZ.
This approach is generally accepted in the practice of courts of general jurisdiction, however, in the practice of arbitration courts, there is a directly opposite position that an employment contract can be classified as a transaction and even under certain conditions can be declared invalid.
Regardless of judicial discretion, the doctrine of labor law continues to defend the position that it is impossible to recognize an employment contract as a transaction. Moreover, if the legislator ever decides to consolidate the position of arbitration courts on this issue in the Labor Code of the Russian Federation, doctrinal views on this issue will also remain the same due to the presence in the labor law doctrine of weighty arguments confirming the incorrectness of such legal regulation.
In this regard, it seems that a scientific concept moves from the category of simply scientific to the category of doctrinal due to its acceptance by the scientific community, and not in connection with its official recognition by the state or legal practice. Moreover, since the doctrine exists within the framework of the entire legal science as a whole, as well as in each individual legal science, to recognize the concept as doctrinal, its approval by a separate industry community of scientists is sufficient, even provided that specialists in other legal sciences may not share this concept to a greater extent point of view. In the example considered, the fact that a number of extremely authoritative representatives of the science of civil law support the position of arbitration courts does not call into question the doctrinal concept of the incorrectness of such an approach within the science of labor law. However, it should be noted that such interdisciplinary scientific discussions lead to an extremely positive result - the expansion of the doctrine of both branch legal sciences.
Next, it is necessary to consider the question of whether legal doctrine is a source of law. During the existence Ancient Rome one of components the code of Roman civil law were the so-called Digests of Justinian, which were a collection of extracts from the works of famous lawyers on issues of property law,
law of obligations, wills, etc. Thus, during that period, legal doctrine was the direct source of law 1 .
In Muslim countries (Egypt, Saudi Arabia, Iran, Iraq, Pakistan, etc.) law is highly religious, since the main tenet of Islam is the assertion that law is based on the views of Allah, who conveyed them to people through his prophet Muhammad. The main source of Islamic law is the Koran, which consists of the sayings of the Prophet Muhammad. In addition to the Koran, the source of law in these countries is also the Sunnah ( Holy Bible about the life of the prophet, about how he acted in certain cases), Ijma and Qiyas, which are precisely the doctrinal sources of law. Ijma is a collection of legal norms that are formulated by lawyers and theologians on those aspects of social relations that are not regulated in the Koran and Sunnah; they are created on the basis of their interpretation. Qiyas is the so-called “reasoning by analogy” about those aspects of social relations, norms about which are not found in other sources of Islamic law. At the same time, Ijma and Qiyas form the norms of fiqh. In Muslim countries, fatwas (opinions of senior clerics on legal issues) also have high authority.
Currently, in some European countries, legal doctrine is also a source of law. For example, in Switzerland, since in this country the judge is ordered to follow “recognized science and tradition” when considering a dispute in the absence of a rule of law. A.A. Zozulya notes that in Great Britain the legal doctrine also actually acts in
as a source of law, since many judicial acts contain references to the works of famous legal scholars or to legal axioms developed by doctrine 1.
Some international courts in some cases refer to legal doctrine when justifying their decision. In Art. 38 of the Statute
The International Court of Justice, adopted on June 26, 1945, states that the court applies, among other things, the doctrines of the most qualified specialists in public law of various nations as an auxiliary means for determining legal norms. The Decision of the CIS Economic Court dated January 15, 2002 No. 01-1/3-2001, as a justification for the decision, contains an indication of the doctrinal understanding of the term “place of permanent residence”, since the legislation of the Republic of Uzbekistan did not contain a definition of this term.
The question of whether legal doctrine is a source of law in Russia remains highly controversial. So, in modern science theories of state and law, many researchers classify legal doctrine as a source of law. So, R.V. Puzikov came to the conclusion that legal doctrine is a source of law in the law enforcement process, since it is used when there are gaps in the law, and also acts as a means used in the interpretation of legal norms. A.A. shares the same point of view. Zozulya, adding to the gap in the law conflicts of legal norms, but at the same time stipulating that the legal doctrine is not a direct regulator of social relations, its regulatory role manifests itself indirectly, as a guideline in the law-making and law enforcement activities of bodies public authority 1 .
In the science of labor law, there is also an opinion that the doctrine of labor law, which is part of the legal doctrine, is the source of this branch of law. So, K.L. Tomashevsky considers the doctrine of labor law as a source of labor law, clarifying that such a conclusion can be drawn if one adheres to a non-normative understanding of law, which equates law and law, but if one follows the sociological and natural law school of law, since for For the first, law is everything that actually regulates social relations, and for the second, the source of law is the principles of law, which are formulated within the framework of legal doctrine.
In Russia, three codes contain an indication of the need to take into account legal doctrine when applying the norms of foreign law, therefore, it seems that only in these branches of law can we say with a certain degree of convention that foreign legal doctrine is a source of law. So, in accordance with paragraph 1 of Art. 1191 of the Civil Code of the Russian Federation (part three) of November 26, 2001 No. 146-FZ, when applying foreign law, the court establishes the content of its norms in accordance with their official interpretation, practice of application and doctrine in the relevant foreign state. A similar rule is enshrined in paragraph 1 of Art. 166 of the Family Code of the Russian Federation dated December 29, 1995 No. 223-FZ (in relation to the court, the civil registry office and other bodies) and in Part 1 of Art. 14
Arbitration Procedural Code of the Russian Federation dated July 24, 2002 No. 95-FZ 1.
Thus, in the Resolution of the Federal Antimonopoly Service of the North-Western District dated May 13, 2013 in case No. A56-70903/2010, which was left unchanged, including by the Determination of the Supreme Arbitration Court of the Russian Federation dated August 28, 2013 No. VAS-3910/12 on case No. A56-70903/2010, it is noted that the court of first instance reasonably accepted the conclusion of a specialist in English law, I. Ivory, establishing the content of the rules for the application of English law.
In addition, in paragraph 8 of the Resolutions of the Plenum of the Supreme Arbitration Court of the Russian Federation “On some issues in the practice of application by arbitration courts of legislation on examination” dated December 20, 2006 No. 66 (repealed in 2014) and dated April 4, 2014 No. 23 it is stated, that in order to establish the content of norms of foreign law, the court may, among other things, involve experts with special knowledge in the field of foreign law. In paragraph 46 of the Resolution of the Plenum of the Supreme Court of the Russian Federation “On consideration by arbitration courts of cases on economic disputes arising from relations complicated by a foreign element” dated June 27, 2017 No. 23, it is stated that when assessing an expert’s conclusion, the court takes into account the presence in it, including including, excerpts from legal doctrine.
However, it seems that at present the legal doctrine in general and the doctrine of labor law in particular, from a formal legal point of view and based on a positivist understanding of law, are not sources of law. The same point of view is shared, for example, by A.I. Bychkov. Cases identified during this study where judicial acts contain a direct reference to scientific works or when the court
justifies the decision made through the prism of existing doctrinal provisions, without referring to specific works of researchers, does not allow legal doctrine to be qualified as a source of law, it acts only as an additional argument in favor of a certain position.
The Civil Procedure Code of the Russian Federation of November 14, 2002 No. 138-FZ (hereinafter referred to as the Code of Civil Procedure of the Russian Federation) says nothing about taking into account legal doctrine when making decisions 1. Moreover, in Part 4 of Art. 198 of the Code of Civil Procedure of the Russian Federation only states that the reasoning part of the court decision must indicate the laws that guided the court when making this decision. There is no mention of taking into account the legal doctrine when making a decision in a case and in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 19, 2003 No. 23 “On the judicial decision”. It is important to note that in paragraph 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated
03/17/2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as the Resolution of the Plenum of the Armed Forces of the Russian Federation dated
03/17/2004 No. 2) it is stated that when considering labor disputes, the court should take into account the Constitution of the Russian Federation, international acts that are an integral part of the legal system of Russia, the Labor Code of the Russian Federation and other normative legal acts. Thus, the labor law doctrine is also not mentioned in this case.
In this regard, it is interesting that one of the most authoritative classical Russian legal scholars N.M. Korkunov noted that it is necessary to distinguish between the source of law as a generally binding act and the source of law as where law comes from. In his opinion, if we understand the source of law in the second sense, we can say that it is the subjective mind (consciousness) of a person, since through it the action of all factors of legal formation is concentrated (the requirement of reason, considerations of expediency, the nature of things, etc.). But subjective consciousness and even its unification into a general consciousness is not the source of law as a generally binding act. In this regard, according to this researcher, only law, custom and judicial practice can be recognized as a source of law 1 . Based on this, it can be stated that N.M. Korkunov did not recognize legal doctrine, which is the concentration of the subjective views of scientists, as a source of law.
At the same time, in some judicial acts one can find references to scientific literature. For example, in the Resolution of the Constitutional Court of the Russian Federation of December 11, 1998 No. 28-P, as a substantiation of the position, a reference is made to the comments to the Constitution of the Russian Federation, ed. Yu.V. Kudryavtsev, and also ed. L.A. Okunkov, which are designated by the term “doctrinal (scientific) interpretation.”
The Decision of the Moscow Arbitration Court dated November 23, 2012 in case No. A40-70099/12 109-232 contains a direct reference to the monograph by M.I. Braginsky, V.V. Vitryansky “Contract Law: General provisions» indicating the year of its publication and page. The Resolution of the Arbitration Court of the North Caucasus District dated March 19, 2015 No. F08-840/2015 in case No. A63-10196/2013 contains a reference to the commentary to the Civil Code of the Russian Federation, ed. P.V. Krasheninnikova. In the Resolution of the Sixth Arbitration Court of Appeal dated October 27, 2011 No. 06AP-4425/2011 in case No. A73-5134/2011, as a justification for the decision, a link to the commentary to the Arbitration Procedure Code of the Russian Federation, ed. P.V. Krasheninnikova.
The Decision of the Arbitration Court of the Tver Region dated November 8, 2017 in case No. A66-7018/2016 analyzes existing approaches to understanding an investment agreement in the science of civil law with references to monographs and dissertations. The Resolution of the Eighth Arbitration Court of Appeal dated November 29, 2011 in case No. A46-4531/2011 1 contains a reference to the commentary to the Civil Code of the Russian Federation, ed. S.P. Grishaeva, A.M. Erdelevsky. The Resolution of the Fifteenth Arbitration Court of Appeal dated December 29, 2012 No. 15AP-9767/2012-NR in case No. A32-40146/2011 contains a reference to article I.S. as a justification for the distinction between an outsourcing agreement and a contract for paid services. Shitkina, published in the journal “Economy and Law” (the court designates this article as a “doctrinal interpretation”).
The Decision of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation dated December 17, 2007 No. 35/2007, as a substantiation of the legal position, also contains a reference to materials of foreign legal doctrine - a commentary by authoritative scientists (P. Schlechtriem, J. Schwenzer) on the Convention UN on contracts for the international sale of goods.
In the cassation ruling of the Supreme Court of the Republic of Tatarstan dated
On March 17, 2011, case No. 33-2799/11 contains the following phrase: “in determining the amount of compensation for moral damage, the court applied the method of A.M. Erdelevsky." This scientist is the author of a number of works on civil law, including research on issues of compensation for moral damage. However, in some judicial acts, the courts separately indicated that the plaintiff’s reference to this methodology is incorrect, since the amount of compensation for moral damage is determined by the court (Article 151 of the Civil Code of the Russian Federation, Article 237 of the Labor Code of the Russian Federation).
Thus, in the appeal ruling of the Moscow City Court dated
06.06.2014 in case No. 33-14649 1 it is noted that the employee’s reference to determining the amount of moral damage according to the method of Professor A.M. Erdelevsky, the judicial panel considers it unfounded, since it is not a normative act. It is interesting that back in 2001, the same conclusion was stated in the Letter of the Supreme Arbitration Court of the Russian Federation dated October 9, 2001 No. 7209/01 in case No. A40-44862/00-61-440 in relation to the recovery of compensation for moral damage according to the norms of the Civil Code of the Russian Federation. In a number of cases, a reference to the doctrine is contained in the dissenting opinion of judges of the Constitutional Court of the Russian Federation.
V.V. Orobinsky, having analyzed judicial practice, also identified cases where courts refer to scientific literature. For example, in the Resolution of the Fifteenth Arbitration Court of Appeal dated April 28, 2008 No. 15AP-2005/2008 in case No. A32-3518/2007-41/95, the conclusion about the possible consideration of the terms “typo” and “technical error” as synonyms was made on based on the practical guide “Practice of application of the agrarian and industrial complex of the Russian Federation”, compiled under the editorship of. V.V. Yarkova, S.L. Degtyareva.
Sometimes courts refer not to specific works of scientists, but to the doctrine as a whole. For example, the Supreme Court of the Russian Federation indicated that the Labor Code of the Russian Federation does not disclose the content of the concept of “place of work,” however, the court cited the definition of this concept, which exists in the doctrine of labor law, calling it “the theory of labor law.”
The Appeal Ruling of the Supreme Court of the Russian Federation dated April 11, 2018 No. 78-APG18-1 1 provides a doctrinal definition of the concept of “sanction” as an element of a rule of law. In the Decision of the Arbitration Court of the Republic of Karelia dated
On March 21, 2013, in case No. A26-277/2013, the definition of the concept of “regulatory legal act” was given with reference to the “legal doctrine”. In the Review-reference of judicial practice of consideration by district (city) courts of the Republic of Sakha (Yakutia) of cases on disputes arising from land legal relations for 2015 and the 1st quarter of 2016, approved by the Presidium of the Supreme Court of the Republic of Sakha (Yakutia) on June 10, 2016. a conclusion is drawn about the status of judicial practice as a special form of expression of legal policy with reference to legal doctrine. In the Resolution of the Presidium of the Ryazan Regional Court dated January 18, 2011 No. 44-g-13/10, the concept of “disability” is defined with reference to doctrine and judicial practice.
Separately, it should be noted that in judicial practice, “doctrinal interpretation” sometimes refers to certain judicial acts. Thus, acts of the Constitutional Court of the Russian Federation are often designated as “normative-doctrinal interpretation” (for example, Resolution of the Supreme Court of the Russian Federation dated November 17, 2016 No. AKPI16-907, Resolutions of the Constitutional Court of the Russian Federation dated July 18, 2008 No. 10-P, dated 01.12 .2015 No. 30-P). Regarding the letters of the Supreme Arbitration Court of the Russian Federation, it is noted that they represent interpretations, clarifications, including extracts from court decisions in cases concerning the most important legal problems, having doctrinal significance (Resolution of the Presidium of the Court for Intellectual Rights dated February 27, 2017 No. S01-1294/2016 in case No. SIP-538/2015, Resolution of the Arbitration Court of the North Caucasus District dated
03.11.2015 No. F08-7680/2015 in case No. A32-21787/2010 1).
The Resolution of the Federal Antimonopoly Service of the Moscow District dated April 12, 2012 in case No. A41-16433/11 notes that the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation “On the assessment by arbitration courts of the validity of the taxpayer’s receipt of a tax benefit” from
10/12/2006 No. 53 contains doctrinal provisions. The consistent jurisprudence of the European Court of Human Rights on a particular issue is also sometimes referred to as "doctrine".
1) Legal doctrine is a type of doctrine. This means that if a doctrine as a whole represents a set of established views and beliefs in some area public life(law, politics, philosophy, religion, etc.), then the legal doctrine consists of concepts established in legal science, regarding which there is no scientific discussion on basic aspects.
In turn, the relationship between the concepts of “legal science” and “legal doctrine”, “science of labor law” and “doctrine of labor law” is as follows:
1 - legal doctrine;
3 - legal science;
4 - the science of labor law.
Thus, the doctrine of labor law is part of the science of labor law and constituent element legal doctrine.
2) The legal doctrine, like the doctrine of labor law, consists only of scientifically based concepts, since, as noted above, the doctrine of any scientific field is part of science as a whole. The criteria for classifying knowledge as scientific knowledge are the same in any science (social-humanitarian, natural, logical-mathematical, engineering-technical sciences) and are developed in detail in the philosophy of science. These usually include: the desire for objectively true knowledge, strict evidence and reliability of conclusions, formal consistency scientific knowledge, the universal significance of scientific knowledge, the openness of scientific knowledge to criticism, constant self-reflection and others 1.
3) The legal doctrine, like the doctrine of labor law, consists of separate, but fundamental postulates of legal science that fit into the general outline, with which all or most scientists agree in their basic part. In this case, the presence or absence of recognition of these scientific developments by the state and legal practice does not matter.
4) Legal doctrine, like the doctrine of labor law, is expressed in the form of literature of various genres: scientific articles, monographs, essays, dissertations, teaching aids etc., as well as through video and audio recordings of scientists’ speeches at conferences, congresses, lectures, as well as other scientific and educational events. This sign characteristic not only of legal doctrine, but also of legal science in general. Due to the significant volume of such sources, it is not possible with complete confidence to identify an exhaustive range of material and electronic media reflecting the doctrine of labor law, not to mention the entire legal doctrine as a whole. Moreover, even within the framework of one legal study, it may happen that some of the conclusions are included in the doctrine, and some remain in science, but outside its doctrinal part.
Thus, as of May 2018, more than a thousand dissertations on labor law alone were defended in our country 1 . Systematization of scientific literature on labor law for the period from 1917 to 2006, carried out by A.K. Bezina, D.A. Safina, N.G. Shigapov, Zh.V. Shchelyvanova, occupied five volumes with a total volume of more than a thousand pages. The number of individual scientific articles published in journals, collections of conference proceedings and collections of scientific papers is completely impossible to count. However, all the same, the doctrine of labor law, as well as the science of this industry in general and all legal science, have a material form of fixation.
In this regard, it is important to note that in the theory of state and law, this feature of legal doctrine is designated as formal certainty, which is achieved through the written form of expression of works, as well as due to the well-known nature of the unwritten doctrine (A.A. Vasiliev) or undocumented form of expression, since scientific publications do not have the status of official documents (R.V. Puzikov). However, it is difficult to agree with the position of A.A. Vasiliev on the classification of legal doctrine from the point of view of the form of its consolidation into written and well-known oral, since, at least in the doctrine of labor law, it is hardly possible to cite as an example at least one thought that was accepted by the scientific community, but has never been indicated in the text expression.
5) Currently in Russia, the legal doctrine from a formal legal point of view and based on the positivist understanding of law, as noted above, is not a source of law. In relation to the doctrine of labor law, in this regard, I would like to separately note the following.
In Art. 5 of the Labor Code of the Russian Federation formally exhaustively names all sources of domestic labor law, among which the doctrine of labor law is not mentioned. However, certain provisions of the Labor Code of the Russian Federation give reason to believe that the list of sources of labor law enshrined in this norm is not exhaustive. For example, in accordance with Part 3 of Art. 348.3 of the Labor Code of the Russian Federation, the specifics of regulating the work of athletes and coaches are determined by the employer in local regulations, which are adopted taking into account the norms of all-Russian sports federations. It seems that this formulation gives grounds to classify acts of such federations (in the science of labor law they are often called regulatory acts) as sources of labor law, even though they are not named in Art. 5 Labor Code of the Russian Federation 1.
Some authors, based on the provisions of Part 3 of Art. 348.3 of the Labor Code of the Russian Federation come to the conclusion that the sources of labor law regulating the labor relations of athletes and coaches are not only acts of all-Russian sports federations, but also acts of international sports organizations (International Olympic Committee, European Olympic Committees, international sports federations certain species sports: International Swimming Federation, International Ice Hockey Federation, etc.). This point of view is shared, in particular, by M.O. Buyanova, O.A. Shevchenko 1.
At the same time, a number of scientists, for example, Yu.V. Zaitsev and D.I. Rogachev, they write that sports regulatory norms cannot be attributed to the sources of labor law, but at the same time they note that in fact they influence the regulation of the work of athletes and coaches in our country 2. E.O. Poghosyan even came to the conclusion that regulatory acts are the source of sports law.
It seems that the list of sources of labor law, which is enshrined in Art. 5 of the Labor Code of the Russian Federation is indeed not exhaustive, but at the same time it seems that other acts not named in Art. 5 of the Labor Code of the Russian Federation, can be classified as sources of labor law only if they are designated in other articles of the Labor Code of the Russian Federation (in particular, as acts of all-Russian sports federations). Since the doctrine of labor law in the text of the Labor Code of the Russian Federation is not designated in the context of a mandatory requirement for subjects of legal relations in the sphere of labor, at present there is no basis for classifying it as a source of labor law.
Legal doctrines at certain historical stages also acted as sources of law. For example, the scientific works of the most authoritative Roman jurists had the force of sources of law. Their texts and explanations were used by courts in resolving legal cases. In English courts, judges also often used the works of famous lawyers as sources of law. Legal doctrines as sources of law are known to Hindu and Muslim law, etc.
Currently, legal doctrines, works, opinions of famous legal scholars in most countries do not act as direct sources of law, but are sources of legal knowledge, an ideological source of law and play a large role in the development of legal systems and the legal culture of any country. The role of legal views, concepts, doctrines is extremely important in the formation of a model of legal regulation, in the development of legal concepts, and the improvement of legislation. Analytical works and explanations of scientists play an important role and provide assistance in the process of implementing legal norms.
In the modern world, legal doctrine is sometimes used as a direct source of law in states with religious legal systems, in particular in Muslim countries. Therefore, some authors consider these religious scriptures as a separate, independent source of law. Currently, in a number of Muslim countries, the texts of sacred religious books - the Koran, Sunnah, Qiyas - are still quite widespread.
45. Religious scriptures
Church norms occupied a significant place among the norms of feudal law. The dogmas of the church covered relations not only between clergy, but largely extended to all members of society. The courts strictly followed their instructions. A significant part of family and hereditary relations fell under the influence of religious canons. On their basis, cases of heresy, witchcraft, etc. were considered.
Gradually, the scope of the norms of church law narrowed due to the strengthening of secular power.
Currently, religious texts have lost their former significance as sources of law, but they have not lost it completely. In a number of Muslim countries, the texts of sacred Muslim religious books remain fairly common sources of law. The main source of Islamic law is the code of religious and ethical norms of the Koran and some other scriptures. They contain provisions that are given a generally binding nature.
46. Concept and characteristics of a normative legal act
A normative legal act is a source of law in all legal systems of the world due to its systematization, accuracy, certainty, mobility, and also due to the fact that it is provided with a state character. In the Romano-Germanic legal system, this is the main source of law. It is defined as an act that formalizes, establishes, changes or abolishes rules of law. In the Law of the Republic of Belarus "On Normative Legal Acts of the Republic of Belarus", a normative legal act is understood as an official document of the established form, adopted within the competence of an authorized state body, official or by referendum in compliance with the procedure established by the legislation of the Republic of Belarus, containing generally binding rules of conduct designed to an indefinite number of people and repeated use.
This definition specifies the following features of a normative legal act:
· Regulatory legal acts are issued by competent authorized bodies. State bodies adopt acts of a strictly defined type;
· Regulatory legal acts contain generally binding rules of behavior that are more or less general in nature;
· Regulatory legal acts must be documented and have a strictly defined form;
· If the executor of the act is not specified, then it applies to an indefinite number of persons;
· Regulatory legal acts are aimed at regulating social relations of a certain type;
· Regulatory legal acts have legal force, which is understood as the property of legal acts to actually act, to actually give rise to legal consequences;
· Regulatory legal acts are of a state-authoritative nature, their execution is ensured by the coercive force of the state.
