Ivanov A.M., Dr. of Law, Senior Lecturer of Chair
of Theory & History of State and Law,
Law School of the Far East Federal University,
Russia, Vladivostok
KorchaginA.G., Dr. of Law, Professor of Chair
of Civil & Business Law,
Law School of FEFU, Russia, Vladivostok
THE MODERN LAW AND LEGAL MODERNIZATION IN RUSSIA AND CREATION OF COMPETITIVE MEDIUM IN THE SOCIETY
1. Modern Law. The problems of definition of law have been traditionally concerned and are still concerned as belonging to the number of the most important in the Russian and foreign legal literature. During many of centuries has been formed and is still being formed a normative definition of law. Similar definitions of law, with the stress on the attention of researcher mainly on the norm of law or on the totality of norms, besides the other definitions “have been preserved in a somewhat changed ‘modernized’ kind till now”. [1]L.S. Yavich had given a wider definition of “law” according to character of existing legal relations (“legal norm in action”), underlining “multi-aspect approach” to the law – this is his acceptance not only statically, but mainly in dynamics as functioning law. [2]There were also attempts to synthesize the Positive and Natural law. And such kind discussions were spread not only in Russia but abroad as well. In our opinion, the law is a polyphonic phenomenon, which exists in different kinds and forms. But at the same time the law is an inner symphonic phenomenon.
The law is a multi-aspect phenomenon and the end of the 20th century has actualized the task of theoretical interpretation of an integral conception of law, which might unite the life ideas of main legal schools and directions. The meaning of the law is quite multifaceted, and thus the law cannot be brought to the established norms only, because of legal norms, differing from legislation, appear and exist within legal consciousness, or sense of justice, as norms of relations or, in other words, as normative legal relations, defining the behavior of social objects. [3]Today, the importance of understanding of Natural law exactly as ideal basis of juridical norms is stressed, where the norms being the fruits of human intellectdo not existself-standing, but are produced from that basis. The understanding of Natural law as a kind of code of “ideal norms”, existing self-standing and parallel to the Positive law and “competitive” with it, is definitely unacceptable. [4] Legal relation from the point of view of Natural law is supposed to be like social interactivity appearing in a sort of special form, the participants of which own reciprocal corresponding rights and duties, realize them with the purpose to satisfy their needs and interests in a special order, not forbidden by the state. [5]The principle of the Rule of Law concerning the global relations means the following: because the law in its basis is in itself a system of Human rights, then the principle of the Rule of Law is the principle of priority of human rights, which should be followed by the modern democratic state, in its law making and law enforcement activity. Concerning the inner state (national) law (the principle of) the Rule of Law appears to be as the Rule of the law of rights (i.e. of the law, which secures human rights).
Thesis about priority of human rights is being subject to doubt even in those cases, when it is going about inner national legal system. So, in spite of the fact that this principle has got unambiguous fixation in the Constitution of Russian Federation, some of Russian legal scholars speak till now about that the priority of rights of a person seems to be a socially dangerous thesis, which provokes unrestrained egoism and individualism. Such an approach shows us not understanding of dialectics of personal and social welfare. Some more difficulties meets the spreading of the principle of human rights, made up in Western countries, onto the sphere of global relations. Here this principle is self-evident for the western European mentality. The forwarding of the ideology of human rights on the wave of global processes with the interpretation of human rights, as a universal social value, generates among the representatives of different civilizations a fear to lose their own cultural identity.