Hands off Soviet power. New Year trees are being set up in Abakan

§ 1. Understanding law in world and domestic jurisprudence

Law is such a unique, complex and socially necessary phenomenon; that throughout the entire time of its existence, scientific interest in it not only does not disappear, but even increases. The issues of legal understanding belong to the number of "eternal" already because a person at each of the turns of his individual and social development discovers new qualities in law, new aspects of its relationship with other phenomena and spheres of society's life. In the world there are many scientific ideas, currents and points of view about what is law. But only recently have scholars begun to wonder what it means to understand law,

Legal understanding is a scientific category that reflects the process and result of a purposeful mental activity of a person, including the knowledge of law, its perception (assessment) and attitude towards it as an integral social phenomenon.

The subject of legal understanding a specific person always acts, for example: a) a citizen with a minimum legal outlook, faced with problems of law in general; b) a professional lawyer who has sufficient knowledge of the law, is able to apply and interpret legal norms; c) a scientist, a person with abstract thinking, engaged in the study of law, possessing a sum of historical and modern knowledge, capable of interpreting not only the norms, but also the principles of law, owning a certain research methodology. Legal understanding is always subjective, original, although ideas about law may coincide in a group of individuals and in entire strata, classes.

The object of legal understanding there may be law on a planetary scale, the law of a particular society, a branch, an institution of law, individual legal norms. At the same time, knowledge about individual structural elements is extrapolated to the law as a whole. An important cognitive load here is borne by the environment and social phenomena interacting with law.

The content of legal understanding constitute the knowledge of the subject about his rights and obligations, specific and general legal permissions, prohibitions, as well as the assessment and attitude towards them as fair or unfair. Depending on the level of culture, the methodological equipment of the subject and the choice of the subject of study, legal understanding can be complete or incomplete, correct or distorted, positive or negative.

An ordinary person understands law in the way that his own mind allows him to do in certain cultural traditions of the corresponding era and society. For him, the understanding of law on a time scale is limited by the scope of his life. However, this does not mean that after his death legal understanding disappears completely. Such elements of legal understanding as knowledge, assessments can be transferred to other people, and the researcher-scientist also leaves behind written ideas about the law. In other words, the image of law, formed in the minds of our predecessors and expressed in the form of a particular concept, has a significant impact on the formation of legal understanding among descendants.

When considering various theories and views on law, the following circumstances must be taken into account: first, the historical conditions for the functioning of law and the framework of culture in which the “researcher” lived and worked; secondly, the fact that the result of legal understanding always depends on the philosophical, moral, religious, ideological position of the subject who cognizes it; thirdly, what is taken as the basis of a particular concept (the source of law formation or the essence of the phenomenon itself), what is understood by the source of law (man, God or the cosmos) and its essence (the will of a class, a measure of human freedom or the natural egoism of an individual) ; fourthly, the stability and longevity of concepts in some cases and their dynamism, the ability to adapt to developing social relations - in others.

The current level of development of the humanities and the methodology of the study of social phenomena makes it possible to systematize various views on law on the basis of certain criteria. The very attitude to law, its fate, the fact that it has a positive or negative value for society, whether it acts as an independent social phenomenon or as an element of a different regulatory system, reveals opposing opinions. In particular, representatives of a number of philosophical movements considered law as part of morality (Schopenhauer) or as the lowest level of morality and denied the social value nature of law (L. Tolstoy, Vl. Solovyov). Anarchists expressed a negative attitude towards law; the problems of the withering away of law with the building of communism were actively discussed within the framework of Marxist legal theory.

When solving the main question of philosophy about the relationship between being and consciousness, idealistic and materialistic approaches to the study of law stand out. The first is characterized by theological doctrines of law. Thomas Aquinas argued that law has not only a divine origin, but also a divine essence. Positive law (human laws) is only a means of realizing the goals destined by God for man. The followers of Aquinas - neo-Thomists - are trying to link the religious essence of law with the principles of natural law and empirical assessments of social relations in order to substantiate more viable and realistic versions of his teaching. At the other extreme, within the framework of the materialistic approach, a Marxist theory of law is being developed, the main postulates of which are: the conditionality of law by the economic basis of society, the class nature of law, the rigid dependence of law on the state, and its security with the coercive power of the state.

Depending on what is considered as a source of law formation - the state or human nature, there are natural law and positivist theories of law.

natural law views originate in ancient Greece and ancient Rome. They are associated with the names of Democritus, Socrates, Plato and reflect attempts to identify moral, just principles in law, laid down by the very nature of man. “The law,” Democritus emphasized, “seeks to help people's lives. But he can achieve this only when the citizens themselves want to live happily: for those who obey the law, the law is only evidence of their own virtue. Natural law theory has gone through a difficult path of development, its popularity, bursts of prosperity have always been associated with the desire of people to change their lives for the better - this is the Renaissance, the era of bourgeois revolutions and the modern era of transition to a rule of law state.

The positive significance of natural law theory is as follows: firstly, it affirms the idea of natural, inalienable human rights; secondly, thanks to this theory, they began to distinguish between law and law, natural and positive law; thirdly, it conceptually connects law and morality. A critical remark to this theory may be that not always the idea of law as fair or unfair can be objectified in legal reality.

Positivist theory of law (K. Bergbom; G. V. Shershenevich) arose largely as an opposition to "natural law". Unlike natural law theory, for which fundamental rights and freedoms are primary in relation to legislation, positivism introduces the concept of "subjective law" as a derivative of objective law, established, created by the state. The state delegates subjective rights and establishes legal obligations in the rules of law that make up a closed perfect system. Positivism equates right and law.

Positive here is the possibility of establishing a stable legal order, a detailed study of the dogma of law - the structure of the legal norm, the grounds for legal responsibility, the classification of norms and regulations, types of interpretation.

The negative aspects of the theory include the artificial limitation of law introduced by it as a system from actual social relations, the lack of the possibility of a moral assessment of legal phenomena, and the refusal to study the content of law and its goals.

Depending on what the basis (basic element) of law was seen in - the rule of law, legal consciousness, legal relationship - normative, psychological and sociological theories were formed.

Normativist theory is based on the notion that law is a set of norms externally expressed in laws and other normative acts. G. Kelsen is considered the author of this concept, according to whom the law is a harmonious, with logically interconnected elements, a hierarchical pyramid headed by the “basic norm”. The legal force and legitimacy of each norm depends on the “superior” norm in the pyramid, which has a higher degree of legal force. The modern understanding of law within the framework of this theory can be expressed by the following scheme: a) law is a system of interrelated and interacting norms set forth in normative acts (texts); b) the norms of law are issued by the state, they express the state will, erected into law; c) the rules of law govern the most important social relations; d) the law itself and its implementation are ensured, if necessary, by the coercive power of the state; e) the emergence of legal relations, the formation of legal consciousness, and legal behavior depend on the norms.

The positive value of normativism lies in the fact that: such an approach, firstly, allows you to create and improve the system of legislation; secondly, it provides a certain regime of legality, the uniform application of norms and individual-imperious decrees; thirdly, it contributes to the formation of a “normative” idea of law as the formal and logical basis of the legal consciousness of citizens; fourthly, it provides a formal certainty of law, which makes it possible to clearly designate the rights and obligations of subjects, to fix measures and means of state coercion; fifthly, it allows one to abstract from the class and political characteristics of law, which is especially important in law enforcement.

The disadvantage of the normative approach is seen in its denial of the conditionality of law by the needs of social development, ignoring the natural and moral principles in law and the role of legal consciousness in the implementation of legal norms, the absolute state influence on the legal system.

psychological theory, whose ancestor is L. I. Petrazhitsky, recognizes the right of a specific mental reality - the legal emotions of a person. The latter are of an imperative-attributive nature and are subdivided into: a) the experience of positive law established by the state; b) experiencing an intuitive, personal right. Intuitive law acts as a regulator of human behavior and therefore is regarded as a real, valid law.

The positive thing here is that the theory draws attention to one of the most important aspects of the legal system - the psychological one. It is impossible to prepare and issue laws without studying the level of legal culture and legal awareness in society, and it is impossible to apply laws without taking into account the psychological characteristics of the individual.

The shortcomings of this theory can be considered its one-sided nature, separation from objective reality, the impossibility of structuring law within its framework, distinguishing it from other socio-regulatory phenomena.Sociological theory of law originated in the middleXIXcenturies. The most prominent representatives of sociological jurisprudence were L. Dyugi, S. Muromtsev, E. Erlich, R. Pound. Sociological theory considers law as an empirical phenomenon. Its main postulate is that "the law should be sought not in the norm or the psyche, but in real life." The concept of law is based on a public relation protected by the state. Norms of the law, sense of justice are not denied, but they are not recognized as law either. They are signs of law, and law itself is order in social relations, in the actions of people. Judicial or administrative bodies are called upon to reveal the essence of such an order, to resolve the dispute in a particular situation.

In this case, the following provisions can be recognized as positive: a) society and law are considered as integral, interrelated phenomena; b) the theory proves that it is necessary to study not only the rules of law established by the state, but also the entire set of legal relations that have developed in society; c) the doctrine emphasizes the role of law as a means of social control and achieving social balance, elevates the role of the judiciary.

Critically, in this theory, one must treat the denial of normativity as the most important property of law, the underestimation of moral and humanistic principles in law, the confusion of one of the factors in the formation of law - interest - with law itself.

Each of these theories has its advantages and disadvantages, their appearance and development are due to the natural development of human society and testify to the necessity and social value of law in people's lives.

Conciliatory theory

The conciliatory theory of law is very popular in the West. It is supported by the English scientist G. Berman and the Swedish scientist E. Anners, as well as many others. According to this theory, law began to emerge not to regulate relations within the clan, but to streamline relations between clans. Within the clan, the duty of peacekeeping and judicial power was performed by the most respected representative of the clan. Each separate individual of the genus was not yet a subject. After all, the family provided him with security and protection. The strength of the clan, therefore, was the strength of each of its members, and therefore it was in the interests of any individual not to oppose himself to the clan.

There were conflicts between tribal groups, and their settlement was in the interests of the tribe. The tribe was primarily a military unit. His strength at that distant time was determined before by the number, not by skill. That is why it was extremely unprofitable to lose people as a result of internal conflicts.

Conflicts between clans were commonplace. After all, tribal groups had their own special interests (take a better place in the parking lot, use more profitable territory, acquire more women, etc.). Their reasons lie in the biologically inherent desire of a person to survive, i.e. in desire, containing in itself a certain spontaneous readiness for retribution. It was from this that the very idea of \u200b\u200bblood feud was born, which claimed the lives of many ancient people. Moreover, the very risk of being subjected to blood feuds put strong pressure on the members of the clan in terms of striving for peace between different tribal groups, since it was impossible to predict how the enmity would end, whether the members of the conflicting clans would be destroyed to the last person.

It is from the agreements on reconciliation concluded initially with the help of the people's assembly, then the council of elders, that, according to the adherents of this theory, conciliation law arose. Over time, the reconciliation agreement, due to the repetition of a situation of a homogeneous nature, gradually developed into rules, legal norms, in accordance with which the amount of the fine for causing bodily harm, etc., increased more and more.

At first, no distinction was made between types of misconduct.

Gradually, the rules of reconciliation began to differentiate. Based on the resolution of a number of situations of the most diverse nature, a whole system of legal norms has arisen. From generation to generation, it continued to improve in the form traditional for those times, and then began to take shape in the form of legislation, i.e. in the form of their proclamation on behalf of the state with the right to apply sanctions from state bodies. .

Undoubtedly, the advantage of this theory is that, firstly, it is based on numerous historical facts. Conflicts indeed accompany human society throughout its development and are by no means the exception, but the rule. As soon as any social structure has special interests, it becomes necessary to defend them, which is far from smooth.

Secondly, blood feud - the universal and only sanction for an insult inflicted on a family, as a rule, did not know the end, since the question of whether it was proportionate to the insult was decided very subjectively by the offended themselves. Because of this, blood feud had a destructive character.

Thirdly, we know that at first the law existed mainly in oral form. Written sources will appear much later, and, having appeared, they occupy a very modest place in the general array of legal norms. Conciliation agreements, of course, were oral in nature. This is also an argument in favor of this theory.

Fourth, turning to the analysis of the first written sources of law, we will get another convincing argument: almost their entire volume is filled with criminal law norms. They deal with the imposition of sanctions for offences.

However, the authors of the conciliatory theory did not pay due attention to a number of aspects of law formation. First of all, they do not take into account the fundamental difference between man and animal: the ability of people to reflect, i.e. evaluate yourself from the outside and anticipate certain events. The very possibility of anticipating events will give a chance to prevent or accelerate them by establishing certain rules of behavior. So, perhaps, not only for reconciliation, but also for the regulation of public life, law was created.

On the other hand, conflict resolution is, of course, necessary. But it's far more effective to avoid them. The human mind, to a certain extent, allowed this to be done, and law was a form of manifestation of this side of it.

Normativist theory of law

This theory received its most logically complete form in the 20th century. The most prominent representatives of this theory are R. Stammler, P.I. Novgorodtsev, G. Kelzen and others.

Supporters of this idea put forward the idea that the starting point, in particular for Kelsen's concept, is the idea of law as a system (pyramid) of norms, where at the very top is the "basic (sovereign) norm" adopted by the legislator, and where each lower norm derives its legitimacy from a norm of greater legal force.

According to Kelsen, the being of law belongs to the realm of what is due, not what is. Thus, it has no justification outside the sphere of norms of duty, and its strength depends on the consistency and harmony of the system of legal rules of conduct. Therefore, Kelsen believed that legal science should study law in its “pure form”, without regard to political, socio-economic (and other existing) assessments. Comparing law with a pyramid, representatives of this theory believed that at the base of the pyramid of norms are individual acts - court decisions, contracts, administration instructions, which are also included in the concept of law and which must also correspond to the basic (primarily constitutional) norm.

The undoubted advantages of this theory are that it correctly emphasizes such a defining property of law as: normativity, and convincingly proves the need for subordination of legal norms according to the degree of their legal force.

Normativity in this approach is organically linked with the formal certainty of law, which greatly facilitates the ability to be guided by legal requirements (due to clearer criteria) and allows subjects to get acquainted with the content of the latest normative acts in the text. The broad possibilities of the state to influence social development are recognized, for it is the state that establishes and ensures the basic norm.

However, like any theory, the normative theory of law also has weaknesses. First of all, this is the fact that in the normativist theory there is too strong a bias towards the formal side of law, which entails ignoring its content side (personal rights, moral principles of legal norms, their compliance with the objective needs of social development, etc.). Also, the weaknesses of this theory are the underestimation of the relationship of law with socio-economic, political and spiritual factors (i.e., the representatives of this theory unnecessarily “cleared” the law from them), as well as the exaggeration of the role of the state in establishing effective legal norms. For various reasons, it can be satisfied with both outdated norms and unambiguously arbitrary ones.

The legal doctrine of normativism has its roots in the formal dogmatic jurisprudence of the 19th century. and developed on the basis of the methodology developed in legal positivism.

The ancestor of the normative school is the Austrian jurist Hans Kelsen (1881–1973). He taught after the collapse of the Austro-Hungarian Monarchy at the University of Vienna, was a legal adviser to the first republican government and drafted the Constitution of the Republic of Austria. After the annexation of Austria to Nazi Germany, Kelsen emigrated to the United States.

Normativism develops the thesis of positivism that law should be known only from law itself, and reinforces it with a reference to the postulate of Kantian philosophy, according to which "proper" is a special, experimental sphere created by the human mind and independent of "existing" (i.e. . nature and society). Since law is a system of rules for proper behavior, it lies in the realm of the "proper" and, therefore, independent of the "existent".

According to G. Kelsen, "law is determined only by law" and "the power of law is only in itself." He defines law as a set of norms enforced by force. Under pure theory of law the author understands legal science, which excludes its economic, political, ideological, moral and other assessments in the study of law. Thus, legal doctrine should not be concerned with establishing the various foundations of law, but with studying its specific content, "understanding it from itself." In this regard, Kelsen was also an opponent of the theory of natural law.

In order to find a foundation within the law itself, the author puts forward the idea of a "basic norm", from which, as from the original beginning, all other elements of the legal system are deployed, forming a stepped structure in the form of a pyramid. (Although Kelsen later recognized the "basic norm" thesis as a weak point in his theory.)

The main norm is directly related to the constitution and reads as follows: "You must behave as the constitution prescribes." Thus, legitimacy is given to the existing legal order, including the state, since, according to Kelsen, the state is the same legal order, only taken from a different angle: the state is a consequence, a continuation of law that arises before the state.

It is useful in normativism that he draws attention to such qualities of law as normativity, formal certainty, which contributes to the improvement of law as a system, its formalization, necessary for the use of electronic computers in law, the capabilities of cybernetics. The ideas of normativism are associated with the wide spread in the modern world of institutions of constitutional control, the creation of a special body for which was first provided for in the Austrian Constitution of 1920.

Thus, formed in the first half of the XX century. Hans Kelsen's normativist doctrine has its drawbacks as well as its virtues. In the Soviet period of the history of our country, it, like other "class-alien" theories, was considered only negatively. Indeed, in normativism the formal-legal side of law is exaggerated. However, in it, as in any theory, you need to find positive aspects and use them.

So, normative theory of law- this is a legal doctrine based on legal positivism, according to which law is in the sphere of due, it is independent of being and therefore can be understood, studied only from itself.

Different scientific schools explain the essence of law in an objective sense from their positions (Fig. 1.2).

natural law theory proceeds from the fact that in addition to positive law, the source of which is the state, there is a natural law that is superior in legal force and includes the natural claims of people who belong to them from birth - the right to life, personal integrity, property rights, etc. At the same time, such natural rights belong to a person, regardless of their recognition by the state.

sociological concept assumes that law acts as a set of legal relations, the behavior of people in the legal sphere.

Historic School of Law considers law as an expression of the spirit of the people, which develops gradually, in the course of

historical process; law is formed through the complication of customs operating in society.

Theological theory comes from the supernatural, suprahuman primary source of law. The right is divided into divine, given from God, and positive (willed), i.e. coming from people. At the same time, positive law must correspond to divine law.

Class (Marxist) theory assumes that law is the expression and consolidation of the will of the economically dominant class. Law acts as a product of class society, its content is of a class-volitional nature.

Realistic Law School regards law as a state-protected interest.

Rice. 1.2. Basic legal theories

Libertarian legal theory proceeds from the fact that law is a form of relations of equality, freedom and justice, based on the principle of formal equality. Accordingly, law as an expression of this idea and law as an order of state power, which can be legal or express arbitrariness, despotism, are distinguished.

Psychological theory of law proceeds from the fact that law is a product of the human psyche. Claims or a sense of duty of a person can be considered legal only if they are internally recognized by the individual as such.

Basic theories of law

It received its completed form during the period of bourgeois revolutions of the 17th-18th centuries. Representatives: T. Hobbes, J. Locke, A. N. Radishchev and others. The main ideas of this doctrine:

law and law are separated (along with positive law, i.e., laws adopted by the state, there is a higher, genuine, “natural” law inherent in man from birth. This is the so-called unwritten law, which is understood as the totality of natural and inalienable human rights and which acts as a criterion of positive law, for not every law contains law in itself);
law and morality are identified (according to the representatives of this theory, such abstract moral values as justice, freedom, equality, constitute the core of law, determine the law-making and law-enforcement processes);
the source of human rights is seen not in legislation, but in human nature itself, human rights are acquired from birth or from God.

Advantages of the theory:

it is a revolutionary, progressive doctrine, under the flag of which bourgeois revolutions were carried out, replacing obsolete feudal relations with a new, freer system;
it correctly notes that laws can be non-legal, which must be brought into line with law, that is, with such moral values as justice, freedom, equality, etc.;
proclaims the source of human rights either nature or God, and thereby knocks out the "theoretical" ground from under the feet of the arbitrariness of officials and state structures.

Weaknesses of the theory:

such an understanding of law (as abstract moral values) “reduces” its formal legal properties, as a result of which a clear criterion of legal and illegal is lost, because it is very difficult to determine this from the standpoint of justice, the idea of which may be different for different people;
such an understanding is connected not so much with law as with legal consciousness, which can indeed be different for different people.

At the end of the XVIII - beginning of the XIX century. received the most fame historical school of law. Representatives: G. Hugo, F. Savigny, G. Pukhta and others. Main ideas:

law is a historical phenomenon, which, like language, is not established by agreement, is not introduced at someone's direction, but arises and develops gradually, imperceptibly, spontaneously;
law is, first of all, legal customs (i.e., historically established rules of conduct that entail legal consequences). Laws are derived from ordinary law, which grows from the depths of the "national spirit", the depths of the "people's consciousness", etc.;
the denial of human rights, because in the class customs of the era of feudalism, in which the theory arose, no natural human rights could be reflected.

Advantages of the theory:

for the first time most thoroughly paid attention to the cultural, historical and national features of law, the need to take them into account in the law-making process;
rightly emphasizes the natural development of law, i.e. the fact that the legislator cannot create the rules of law at his own discretion;
the advantages of legal customs are correctly noticed as time-tested and stable rules of conduct.

Weak sides:

this theory, at the time of its inception, acted as a reaction to the natural law doctrine, as the ideology of feudalism, already an obsolete system;
its representatives overestimated the role of legal customs to the detriment of legislation; meanwhile, in the new economic conditions, customs no longer coped with the full regulation of market relations.

Normativist theory of law received the most logically complete form in the 20th century. Representatives: R. Stammler, P. I. Novgorodtsev, G. Kelzen and others. The main ideas of the theory:

the starting point, in particular for Kelsen's concept, is the idea of nature as a system (pyramid) of norms, where at the very top is the "basic (sovereign) norm" adopted by the legislator, and where each lower norm derives its legality from the norm of a more significant legal force ;
according to Kslsen, the being of law belongs to the realm of what is due, not what is. Thus, it has no justification outside the sphere of norms of duty, and its strength depends on the consistency and harmony of the system of legal rules of conduct. Therefore, Kelsen believed that legal science should study law in its “pure form”, without regard to political, socio-economic (and other existing) assessments;
at the base of the pyramid of norms are individual acts - court decisions, treaties, administration orders, which are also included in the concept of law and which must also comply with the basic (primarily constitutional) norm.

Advantages of the theory:

correctly emphasizes such a defining property of law as normativity, and convincingly proves the need for subordination of legal norms according to the degree of their legal force;
normativity is organically linked with the formal certainty of law, which greatly facilitates the ability to be guided by legal requirements (due to clearer criteria) and allows subjects to get acquainted with the content of the latest editions of regulations;
the broad possibilities of the state to influence social development are recognized, for it is the state that establishes and ensures the basic norm.

Weak sides:

there was too strong a bias towards the formal side of law, which entailed ignoring its substantive side (personal rights, moral principles of legal norms, their compliance with the objective needs of social development, etc.). Hence the underestimation by representatives of this theory of the connection between law and socio-economic, political and spiritual factors;
while recognizing the fact that the legislator adopts the main norm, Kelsen exaggerates the role of the state in establishing effective legal norms. For various reasons, it can be satisfied with both outdated norms and unambiguously arbitrary ones.

The most widespread in the XIX-XX centuries. Representatives: K.. Marx, F. Engels, V. I. Lenin and others. Main ideas:

law is understood as the will of the ruling class elevated to law, i.e., as a class phenomenon;
the content of the class will expressed in law is ultimately determined by the nature of the material production relations, the bearers of which are the classes of owners of the fixed means of production, holding state power in their hands;
law is a social phenomenon in which the class will receives state-normative expression. The law is such norms which are established and protected by the state.

Advantages of the theory:

law is understood as a law (i.e., as a formally defined normative act), clear criteria of lawful and unlawful are distinguished;
the dependence of law on socio-economic factors that most significantly affect it is shown;
Attention is drawn to the close connection of law with the state that establishes and ensures it.

Weak sides:

the role of class principles in law is exaggerated to the detriment of universal human principles, limiting the life of law to the historical framework of class society;
law is too rigidly associated with material factors, with economic determinism.

Developed in the 20th century. Representatives: L. I. Pstrazhitsky, A. Ross, I. Reisner and others. Main ideas:

the psyche of people is a factor that determines the development of society, including its morality, law, state;
the concept and essence of law are considered, first of all, not through the activities of the legislator, but through psychological patterns - the legal emotions of people that are imperative-attributive in nature, that is, they represent feelings of entitlement to something (attributive norm) and a sense of obligation do something (imperative norm);
all legal experiences are divided into two types - experiences of positive (established by the state) and intuitive (personal, autonomous) law. The latter may not be related to the former. Intuitive law, in contrast to positive law, acts as a true regulator of behavior and therefore must be considered as a "real" law. So, a variety of experiences of intuitive law are considered experiences about card debt, children's experiences of their duties in the game, etc., which respectively form "gambling law", "children's law", etc.

Advantages of the theory:

attention is drawn to psychological processes, which also act as a reality along with economic, political and other processes. Therefore, one cannot make laws without taking into account social psychology, one cannot apply them without taking into account the psychological structure of the individual;
the role of legal consciousness in legal regulation and in the legal system of society is increasing;
the source of human rights is “derived” not from legislation, but from the psyche of the person himself.

Weak sides:

there has been too strong a bias towards psychological factors to the detriment of others (socio-economic, political, etc.), on which the nature of law also depends;
due to the fact that the "genuine" law (intuitive) is practically divorced from the state and does not have a formally defined character, this approach lacks clear criteria of lawful and unlawful, legal and illegal.

It finally took shape in the 20th century. Representatives: E. Erlich, F. Zhenya, S. A. Muromtsev and others. Main ideas:

right and law are separated, although not in the same way as the ideologists of the natural law doctrine. Law is embodied not in natural rights and not in laws, but in the implementation of laws. If the law is in the sphere of due, then the law is in the sphere of being;
law, therefore, refers to legal actions, legal practice, the rule of law, the application of laws, etc. Law is the real command of the subjects of legal relations - individuals and legal entities. Hence another name for this doctrine is the theory of "living" law;
first of all, judges formulate such a “living” right in the process of jurisdictional activity. They “fill” laws with law, making appropriate decisions and acting in this case as subjects of lawmaking.

Advantages of the theory:

such an understanding focuses on the realization of the law, on the being, where it finds practical implementation;
quite justifiably, the priority of social relations, as content, over the legal form is noted;
this theory is in good agreement with the limitation of state intervention in the economy, with the decentralization of management.

Weak sides:

if by law we understand the implementation of laws, the real legal order, then clear criteria of lawful and unlawful are lost, because the implementation itself can be both legal and illegal;
By virtue of the transfer of the center of gravity of law-making activity to judges and administrators, the danger of incompetent and outright arbitrariness on the part of mercenary officials increases.

In its most complete form, it was formed in the late XIX - early XX centuries. Representatives: K. Llewelyn, O. Holmes, J. Frank and others. Main ideas:

law is understood as a set of judicial decisions (a kind of prediction of a future court decision). Without denying the regulatory role of the law, they believed that the law is too general and abstract and does not give rise to rights and obligations for specific persons before the issuance of an appropriate court decision;
supporters of the theory had a positive attitude towards the uncertainty of law, considering it a virtue, since law must be able to adapt to the changing conditions of social life;
negative attitude to the discussion about what is right. In their opinion, instead, lawyers should generalize the existing judicial practice (this theory is based on the ideology of pragmatism and is otherwise called "pragmatic positivism", according to which legal phenomena should be studied from the point of view of their usefulness).

Advantages of the theory:

focusing on the process of making court decisions, on the need to take into account the emerging judicial practice;
a detailed study of judicial activity as a significant factor in law formation.

Weak sides:

narrowing the scope of legal regulation, since many legal relations do not reach the court at all, but their participants are nevertheless endowed with subjective rights and legal obligations;
the uncertainty of law, advocated by the representatives of this theory, reduces the quality of law as a social regulator, which can disorient the subjects.