Fundamentals of

the Theory of State

and Law

Mohammad Amin Toosi

Group 328
3rd course of dentistry
The subject of jurisprudence is the most common regularities of
appearance, functioning and development of the law and the state, their
substance, structure, main elements, principals, institutions The
jurisprudence covers all levels of the governmental and legal
activities, exposes the substance of the state and the law, their functions,
role, social purposes, fundamental connections and relations determining
trends and ways of development of a specific sphere of social life, and on
this basis forms the main fundamental conclusions and terms about the
state and the law.
The jurisprudence is a science with fundamental character. Together with
other sciences studying the main branches of law it forms scientific and
theoretical basis for the whole Russian legal science.
The jurisprudence is the introductory discipline. It starts legal studying.
Without studying the basic categories and terms, process of lawmaking,
law enforcement, definition of legal norms, without knowledge of the
substance of such events as legality, legal order, legal relations, without
getting acquainted with the main sources of law it is impossible to enter
into the complicated and ambiguous world of jurisprudence, it is
impossible to assimilate and fix the branch-wise and applicable legal
knowledge.
The jurisprudence is an abstract science as its categories and terms are
mostly abstracted from the direct events and processes. However, it is a
mistake to think that the theory is completely separated from the practical
tasks, real social life. Indeed, jurisprudence studies such wide categories
as the law, legal relations, delicts and some other. But these terms
themselves are the result of deduction and abstraction of the specific facts
and relations. Thus, for example, the research of the crimes,
administrative and disciplinary offences in different branches of law
forms the basis of general-theoretical term «delict».
The terms of the jurisprudence reflect the common situation integrating
different spheres of legal science. The jurisprudence on the basis of the
direct facts detects the regularities of the state and legal events.
The subject of the jurisprudence is divided into two main parts:
the theory of law and the theory of state. There are different ideas about
their correlation, priority and necessity within the scope of the coverage
of this science and the discipline. The jurisprudence is known to be
named as «The theory of law and the state», «The Theory of the state and
the law», «The general theory of law», «The philosophy of the law»,
«The sociology of the law». The legal science before the revolution used
the name «The encyclopedia of the law». The Common law science calls
the science about the regulatory and the substance of the law is known as
«The Jurisprudence».
From the native equivalents «The Philosophy of law» with the elements
of the theory of law or «The general theory of Law» are the most close.
And it is not only about the different name. «The Jurisprudence» differs
in its content and construction, its approach to the legal research, the
state’s institutions are not included into this subject.
The question of the sequence of the words (the state and the law) in
the name of the discipline and the legal science can not be considered as
idle. The problem of the priority of the state and the law has the deep
philosophic character, covering the categories of the first and the second,
the reason and the result, the basic and the derivative. The extent of the
involvement to the appearance, formation and functioning of each of the
phenomena is considered as well.
Let’s examine the arguments given to each of the variants. The most
widespread is the name «The theory of the state and the law». Its wide
acknowledgement was promoted by a number of factors whose content
is mentioned further in this textbook. We will just mention them for now:
the Continental legal family, the domination of the positivists’ views. An
important role was played by the Soviet doctrine, based on the Marxism’s
understanding of law. In accordance with this conception the state is
given the leading role in every sense: meaningful and chronicle. Thus, the
state appearing as a result of the abstract of the private property and the
division of the society to classes, had to produce a special mechanism to
protect its rights. This exact role is given to the law. It is understood to be
the result of the state’s activities and the instrument of its protection. The
purpose of law is to guarantee the state’s interests.
Such approach, described in plain form, forms the bases of «the theory of
the state and the law». This understanding was and still is traditional for
Russia, what is in no small measure explained by its support by the state.
The treatment of the theory with the major role of the law in it is
expressed in the name «the theory of law and the state». The fundamental
role of the state is based on the idea that the law has appeared before the
state. Indeed, there are a lot of evidence that the law has appeared during
before-the-state period, when the humanity was primigenial. Then the
state appeared and tried to control the law. However, it appeared to be
impossible to the full extent because the customs, principals, doctrines,
legal conscious, religions and behavior samples are not connected with
the state. They appear and disappear without the influence of state. This
treatment doesn’t cut the connection between the state and the law,
but it gives the role of one of the other sources of law to the state and
proclaims the state to be the warrant of the law. The mergence of the law
and the state is obvious only at the lawmaking and law implementation.
The lawmaking is defined as the state’s activity, the activity of its
officials aimed at adoption, amending and cancellation of legal acts.
Within the lawmaking process the state demonstrates its powerful nature,
the opportunity to force the citizens to the fulfillment of its requirements.
Indeed, as far as we are speaking about the punishment and the duress
there is no power equal to the state. It has the monopoly on the prisons,
military forces, police, courts and other authorities. There is an important
part of the legal phenomena left out of the scope of the state’s authority,
and the state may protect them from violations.
The doctrine based on the priority of law seems to be more tolerant,
adequate to the democratic values in comparison with the state-focused
theories. Even more, at the Constitution of the Russian Federation of
1993 the conception of the priority of law above the state was
promulgated. Thus, article 15 of the Constitution states that the generally
recognized principles and norms of the international law and the
international treaties are the part of the legal system of the Russian
Federation. But these norms are not produced by the Russian state, and
by no state at all, they are not national legislation. This law is allocated
by
supernational and out-of-state experience of the humanity. Russia does
not only recognize this system of values to be the law, but it assumes the
obligation to limit its own legal freedom by the frame of the general
experience of the humanity. The years passed from the time of the
adoption of the Russian Constitution (1993) and the cases considered by
the Human Rights Court involving the citizens of the Russian Federation
have shown that the national legislation is quite weak facing the
supernational law.
As it was stated there are attempts to separate the law and the state from
each other by calling the course «The general theory of law». However
the experience shows that the authors still have no chance to avoid fully
the traditional questions where the integration of the law and the state is
essential for the both phenomena. Here we speak about the lawmaking
and law enforcement, as well as the official treatment of the legal norms.
The desire to separate the theory of law as an independent science is
explained by the existence of an independent science about the state and
its power — political science. This is the science that studies the
characteristics of state, its substance, forms of states, its machinery and
functions. The modern theory of jurisprudence in Russia is the inheritor
of the soviet approach to law and it is against the fact that officially
Marxism Leninism has lost its domination. Within the past years the
study materials and even the scientific literature failed to avoid pro-
marxizm approach. It is important to remember that such sciences as the
political science and sociology were not formed at the soviet period yet.
Nowadays when they are clear enough, the basis for the rivalry between
these sciences and the jurisprudence, covering wider range of state and
social events, appeared.
It is to be mentioned that some questions of the existence of law are
impossible to explain without appealing to the state’s bodies. Thus, it
seems difficult to understand the lawmaking process and the forms of the
law without the analysis of the guiding state’s categories. Indeed, the
lawmaking is the activity of the authorized governmental bodies aimed at
the production, amending or cancellation of the legal acts.
Therefore, in this treatise we prefer the legal values, but in some cases
when it seems to be necessary, the law and the state will be considered to
be as integrated.

Let’s look through the main questions composing the subject of the
jurisprudence.

The theory of law studies the regularities of the appearance and

development of the law. The key question of the theory of law is the
substance of the law, different approaches to the understanding of the
law. It is the theory where the main categories of the law, such as the
concept of the law, sources and forms of the law, legal relations, law
enforcement and some other, are being worked out. It examines the
questions of the legal conscious as the accumulation of views, emotions
and feelings in the legal sphere, levels and kinds of legal conscious.
The theory of law studies the forms of the law, including such an
important kind of them as the legal act. This form of law has a specific
meaning for the countries with Continental system of law, because it is
the central for them.
The most important questions covered with this science are the
regularities of the creation of the law and the lawmaking. The
harmonization of the relations between the law and the state is possible
only in the legally and socially oriented state. In connection with this fact
the theory of law apply to the characteristics of the legal state, the
historical development of this phenomenon, the peculiarities of the
socially oriented state.
The peculiarities of the each type of the state and the law are reflected by
such term as the legal system. At the theory of law with the help of the
analysis and the synthesis there was created a typology of states which
has provided the opportunity to unite them to the wide groups of the legal
families. The theory of law conceders the common characteristics of each
group: Continental, Common law, Religious and others. The aim of the
comparative research is to detect common and specific features of the
types of the legal systems. The opportunities and the consequences of the
borrowing of the legal norms and institutions by the states belonging to
different types of legal systems are also being considered.

The composing elements of the theory of law are the philosophy of law
and the sociology of law. According to the existence of the specific
subject and specific methods they may be considered as independent
sciences.
The subject of the sociology of law is the process of the social operation
of law considered as a part of the system, in full force, including the
connection between the law and the state. The sociology of law considers
such questions as the genesis, functioning and development of law as the
socially induced phenomenon.
From the historical point of view the sociology of law was formed not so
long ago, however it has gained the opponents as well as the proponents.
The sociology of law was worked out as the part of sociology and later
as the part of jurisprudence. There are the works in this field created by
the sociologists, such as M. Kovalevsky. Within the framework of the
legal science the work with the same heading by G. Shershenevich is
quite well known. The modern sociological jurisprudence is developed by
V. Lapaeva, S. Polenina.

The aim of the sociological research of law is the examination of the

connection between the law as the social phenomenon and the society,
social functions of law and the integrated processes of transformation of
legal norms into the social behavior at each level — society, class, group
and person. The sociology of law prevents the law from isolating. The
law is not the final result and definitely not the aim of lawmaking. The
aim is the well-ordered state of social relations, the creation of favorable
conditions for their improvement.
That’s why the key term of the sociology of law if the efficiency of legal
norms, e. g. consummation of the purposes of social practice by the law.
Indeed, it is impossible and senseless to explain the law out of itself
treating the legal norms.
The law should be considered in terms of other regulators of social
relations (moral, religion, ethics). The sociology of law can provide such
integrated approach.
The advantage of the sociological approach is the fact that the society
is the source of law and at the same time the final destination point the
law is intended to be used for. The law appears to be the cover of the
consolidated social interest; it is appealed for the effective influence to
social relations.

The subject of the philosophy of law is the sense, the substance and
the term of law, its basis and its place in the world, its value and
importance, the role it plays at the life of a person, a society, a state, at
destinies of peoples and
humanity. The philosophy of law in the meaning of science was formed
in the middle of the XVIII century. This was its summer, when the
philosophy of law hold pride of place at the system of social sciences,
was studied at the universities, played the role of the methodological
basis of the jurisprudence. The philosophy of law has its specific subject
where a human personality, human nature, her characteristics and purpose
play the leading role, because these events in the aggregate can become
the basis of rational law. There are well-known treatises on the
philosophy of law by the following outstanding scientists dating back to
different periods: B. Checherin, D. Kerimov, S. Alexeev, M. Baitin, M.
Marchenko, V. Nersesyanc.

The theory of state is devoted to studying of the main institutions: the

term of state, the forms of state, the machinery of state.
Much attention is given to the concepts of the appearance of a state. The
examination of the historical and modern theories is aimed at the
detection of the regularities of the appearance and development of the
main governmental institutions. The Constitutional model of Russia is
based on the ideas of the legally and socially oriented state that are
considered by the theory of state to be integrated with the other state-legal
institutions. The connections of the law and the state, politics, economy,
religion, ideology are being analyzed. It is important to distinguish
between the subject of the jurisprudence meaning the science and
meaning the classroom discipline. The subject of science is wider,
it includes problem novel elements. The course of study is composed by
the most customary scientific elements, where the opinion claiming to be
generally accepted, doctrinal is formed.
Thus, the subject of the jurisprudence (the theory of law and state) is
crosscutting, complicated and it may even seem to be eclectic. The
subject of the theory of jurisprudence transforms within time involving
new institutions.
References

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