The relationship between form and source of law is brief. Analysis of correlation between sources of law and forms of law. Main classifications of sources of law

As an integral phenomenon of social reality, law has certain forms of its external expression. Reflecting the features of the content structure, they are ways of organizing law outside.

To refer to this phenomenon in the legal literature, the concepts of “form of law” and “sources of law” are used as identical.

The form of law refers to certain ways of external expression of law as one of the components of the "legal form", in other words, as a narrower independent phenomenon. The purpose of this form is to streamline the content, to give it the properties of a state-imperious character.

In science, there are internal and external forms of law.

Under the internal is understood the structure of law, the system of elements (normative prescriptions, institutions, industries).

Under the outer one is an objectified complex of legal sources that formally fix legal phenomena and allow the recipients of legal regulations to get acquainted with their real content and use them.

Ratio

The problem of the correlation of internal and external forms of law in general involves correlation with each other various systems and structures that embody the ways of organizing, on the one hand, the content of law, on the other hand, its legitimate sources in different sections.

With this approach, it is found that the internal and external forms of law in some respects are characterized by common features, in others - significant differences. Both general and distinctive points are already inherent in the ratio of the rule of law, normative legal prescription and a relatively independent subdivision (article, paragraph, chapter, section, etc.) of a normative act.

In some cases, these formations coincide in volume and structure: for example, one article of the law is exhausted by one legal prescription containing all the necessary elements of a particular legal norm. But it often happens otherwise. One and the same legal prescription may be contained in two or more normative acts issued at different levels of general legal regulation. In one article of the law, several normative legal

prescriptions. The rule of law is sometimes "collected" from a number of normative prescriptions. One legal prescription may contain some elements of a number of rules of law, etc. Therefore, in relation to the primary cells of law, the problem under consideration does not have a single solution, the latter depends on the peculiarities of the methods of expressing the will of the legislator in the text of the normative act. The imposition of an internal form of law on an external one is also unthinkable when comparing the system of norms built according to their types with the system of normative legal acts.

Not only in any branch or institution of law, but also in any normative legal act, regardless of its branch affiliation, the most different kinds legal norms. The factors on which the system of legal norms depends on their types differ significantly from the circumstances that determine the system of normative legal acts. If we take the system of Russian law in the plane in which the hierarchy of the legal force of legal norms is reflected, then it also differs somewhat from the system of normative legal acts in the corresponding section. The norms of the same legal force may be contained in different normative acts (for example, in an instruction, order or regulation issued by the leadership of the same department). At the same time, in one normative act, norms of law of different legal force are possible, which happens in the Code of Laws of the country.

In the legal literature, the requirement was often put forward that codification should be carried out "in strict accordance with the branches of law", expressing "the legal originality and content of the corresponding subdivision of the legal system." It, apparently, is fair only insofar as it refers to sectoral and intra-branch consolidated normative legal acts, which, indeed, are built in accordance with the structural features of the ordered subdivision of the sectoral system of law. If we are talking about other types and varieties of systematization of legal and regulatory

array (incorporation, consolidation, complex and universal codification), then a similar proposal in general view turns out to be unfounded.

The role of the system of branches of law in any systematization of its legal sources is undoubted. But at the same time, there is no sufficient reason to doubt the certain independence of the system of these sources, the construction of which is influenced by a number of additional factors of an objective and subjective order, including the multilayer nature of the regulated social relations themselves, one or another direction of the will of the legislator, the plurality of law-making bodies at different levels, originality of links and processes government controlled, the interests of providing the latter with compact legal material, the qualifications of personnel, the achieved level of legal technique and law enforcement.

A certain role in the systematization of legal acts is also played by the “principle of addressees”, which, however, has no direct relation to the branch system of law. In fact, branches of law and branches of legislation never completely coincide either in number, or in name, or in specific structure. This is understandable, since the connection between them is not the result of mirror reflection, it is of a very complex indirect nature, depending on the characteristics of the “intermediate” factors, it manifests itself in different ways. In a number of cases, in the chain of cause-and-effect relationships, such branches even "change places" if the formation of a new branch of law is determined mainly by the intensive development of one of the existing divisions of legislation.

The scientifically based construction of the system and structure of normative legal acts naturally leads to the fact that they are not in any plane and not in all elements adequate to sectoral and other systems, structures of the content of law. Truth is always concrete, and this axiom is most welcome when solving the problem of the relationship between internal and external forms of law in their most diverse planes.

The term "source of law" was introduced into scientific circulation by the Roman historian Titus Livy when characterizing the Laws of the XII tables - a code that, even after several centuries, was recognized as the source of all public and private law. However, the Romans did not give any definition to the sources of law. Analyzing the use of this term by Roman jurists, F.K. Savigny came to the conclusion that the Romans understood under the sources of law only the forms of its external manifestation, being indifferent to their content. And now, within the framework of the theory of law, they differ sources (forms of expression) of law and its content, in which it is impossible not to see the well-known continuity of legal terminology, which is the basis of modern general theoretical ideas about the sources of law. And although the issue of the sources and forms of law has been studied quite diversified, a consensus, a common paradigm on the issue of the relationship between the concepts of "source of law" and "form of law" in science has not been developed. Most scholars prefer the concept of "source of law"; some were in favor of replacing the term "source of law" with another category - "form of law"; the third group of authors to designate the relevant topic in the training courses uses a double name - "form (source) of law". Finally, in some cases, the double name is given in another version - "sources (forms) of law." What is the reason for the terminological inconsistency? After all, in all these cases we are talking about the same thing - the official methods by which the content of the law - the rules of conduct are brought to the attention of the addressees as formally defined and generally binding.

Form of law- this is a form of law as a separate phenomenon, and it correlates only with the content of law. Its purpose is to streamline the content of law, to give it the properties of a state-imperious character.
In accordance with philosophical ideas in the specialized literature, there were different internal and external form. In this case, under internal form imply such an organization of the own content of law, which is expressed in the form of various systems and structures that are found when reviewing it from the inside, i.e. legal system and its structure; under external form- the external device of law, represented through various normative sources in a systematized form, in which its content exists, manifests itself outside and functions.

Under source in the everyday sense, it usually means some kind of reservoir or the beginning, the starting point of a phenomenon, event, feeling. In Russian, a source is understood as something that "gives rise to something, from where something comes." The word “source” is derived from the word “source”, and, therefore, when using the term “source of law”, it is logical, first of all, to mean the origins of its formation, i.e. a system of factors predetermining its content and form of expression. Accordingly, in jurisprudence, there are material, ideal and legal sources of law.

The sources of law in the material sense are the social relations that exist in a concrete historical period in the development of civilization. This approach to the sources of law was thoroughly developed by the Marxist doctrine of modes of production and forms of ownership. These include: the method of production of material life, the material conditions of society, the system of economic and economic relations, forms of ownership as the ultimate cause of the emergence and operation of law. The material origins of law were rooted, according to the ideas of the Marxists, primarily in the system of objective needs of social development, in the originality of this mode of production, in basic relations.

However, public needs must be recognized and adjusted by the legislator in accordance with the level of his legal awareness and political orientation. His positions may be influenced by the peculiarities of the international and domestic political situation, and some other factors. All these factors taken together constitute source of law in the ideal sense. Respectively the source of law in the ideal sense is understood as legal consciousness.

The result of the ideological awareness of the objective needs of social development through a number of law-making procedures receives an objectified expression in legal acts that are legal source of law. When they say about sources in a legal sense, then they mean various forms (methods) of expression, objectification of legal norms. That's what it is external form of law in the true sense of the term. The form of law shows how the state creates, fixes this or that legal norm and in what form (real image) this norm, which has taken on an objective character, is brought to the consciousness of members of society. Based on this, the external form of law can be defined as a way of existence, expression and transformation of legal norms. AT this case source of law in the legal sense and external form of law match in content.

These three uses of the term "source" are only in the general form show the system of law-forming factors and the mechanism of their influence on the formation of law. In reality, however, this system is much more diverse. It unites not only economic, but also political, and social, and national, and religious, and foreign policy, and other circumstances, which was underestimated in Marxism.

Concluding the analysis of the relationship between the concepts of "form of law" and "source of law", we have to state that each of them has its own scientific status, and in terms of its scope and content cannot completely replace the other. The use of the term "form of law" involves the study of not only the external forms of its expression (legal sources), but also the internal organization of law (the system of law, which will be discussed later), ignoring the sources of law in the material and ideal sense. Taking the term “sources of law” as a basis, we have to consider the system of law separately from them, which does not allow us to logically connect the study of external and internal forms of law. An independent analysis of both forms of law (internal and external) and sources of law from different angles of view (some researchers number up to six) enriches ideas about the nature of law and its purpose in modern society. However, there is only one case coincidence of form and source of law: when talking about sources of law in the formal (legal sense), on the one hand, and external form of law- with another.

Therefore, it is proposed to use the wording “sources (forms of expression) of law” for this coinciding variant, reflecting in the etymological sense the existing real identity of the ways of official expression and consolidation of legal norms and the only “reservoir” from which one can draw information about the rules of conduct in force in a given country. Only such a name fully reflects the entire list of traditionally studied legal phenomena: legal custom, normative legal act, legal precedent, contract of normative content, legal doctrine, legal principles etc. as a special specific place of "stay" of legal norms.

It should be noted that the concept of "form of law" is rarely used by foreign authors. At the same time, the term “source of law” is very actively in demand, and it is customary to use it to designate both substantive and formal sources of law, which in principle corresponds to the domestic tradition to distinguish between sources of law in the material (and ideal) and legal sense. Noteworthy is the fact that making this distinction does not prevent, but, on the contrary, only contributes to the fact that formal sources (law, custom, judicial practice and interpretation of laws or doctrines) are the main subject of research in the works of foreign lawyers.

Law as a holistic legal phenomenon that has a formalized (institutional) character can be comprehensively known only on the basis of knowledge about those methods of forming legal norms that give its constituent requirements a meaning accessible to all addressees and the necessary degree of imperativeness. We are talking about such techniques and acts, through which these norms are brought to life, become an integral part of the law in force in a given country, i.e. about the sources (forms of expression) of law. There is no such legal system in which preference would be given exclusively to one of them, and all the others would be neglected. But in each country, as a rule, one of the sources prevails over the others. And yet, all sources (forms of expression) of law must have an official character, they are recognized by society, which predetermines the state's support for the decrees contained in them as correct and fair.
That's why sources (forms of expression) of law in this case are denoted by the official-documentary methods emanating from the state or recognized by it as official-documentary ways of expressing and fixing the rules of conduct, which are thereby given a legally binding, state-secured value .

The official nature of the sources (forms of expression) of law is given in two ways:

way lawmaking, when regulations accepted by the competent authorities, i.e. emanate directly from the state;

way authorizing when state bodies in one form or another approve social norms (customs, corporate norms), give them legal force.

Accordingly, in foreign literature there are straight and indirect ways of forming rules: “In some cases, the basis of a legal rule is nothing more than actions, decisions or opinions that were made, adopted or expressed by people who did not pursue the goal of creating general or abstract rules. The rule arose, as it were, by chance and gradually, thanks to a logical judgment that helped to capture and formulate it. Thus, custom arose from facts, jurisprudence - from judgments, interpretation of laws - their author's statements. In other cases, law may be based on conscious acts, the purpose of which was to approve norms that have a certain content and a clear formulation. In the latter case, we are talking about a direct way of forming law, corresponding to written sources, the law, which is often considered in some legal systems as the main or even the only source of law. In such systems, the law is approved in the name of the state and as an expression of the general will.” Based on this criterion, J.-L. Bergel proposes to subdivide legal sources into spontaneous (or spontaneous) and prescribed. At the same time, the author recognizes the conditionality of this division, since as social forms of life develop, there is a need to promulgate legal rules, to bring them to the masses, regardless of whether these rules arose spontaneously (spontaneously) or through special prescriptions. Therefore, with the development of the state, official sources of law became predominant, and their different "origin" is associated only with technical problems.

And although in the work of J.-L. Bergel, other classifications of legal sources are given (written (law) and non-written (custom); direct (law, custom) and indirect (interpretation of the law and jurisprudence); official (law and jurisprudence) and unofficial (custom and interpretation of laws) and etc., the approach adopted in domestic jurisprudence, when legal sources are simply listed sequentially, is quite legitimate.

The categories "source of law" and "form of law" are among the central ones in legal science. However, up to the present time there has not been developed a single, universally recognized definition of them. Further development of these questions is undoubtedly a necessary condition for the development of the theory of law.

The concept of "source" is usually interpreted as:

a) "That from which it comes, arises, something follows; the original cause, the basis of the origin of something";

b) "A written monument, a genuine original, on the basis of which scientific research is based" Ushakov D.N. Explanatory dictionary of the modern Russian language. M.: Alta-Press, 2010. S. 691. .

The concept of "form" is a philosophical category and is defined as "a way of existence, organization and expression of content", the content is interpreted as "the unity of all the constituent elements of an object, its properties, internal processes, connections, contradictions and tendencies" Philosophical encyclopedic Dictionary/ Ch. Editorial: L.F. Ilyichev, P.N. Fedoseev, S.M. Kovalev, V.G. Panov. M.: Sov. Encyclopedia, 2009. S. 621. .

In accordance with these definitions, the term "source of law" can be characterized from two sides. Firstly, as a phenomenon that is inherently law-forming, primary in relation to law, determines it, is the "source" of the formation of legal norms. Secondly, as an external expression, a form of existence of a legal norm, a source on the basis of which legal relations arise.

Based on this, sometimes sources of law are distinguished in the material sense (social, economic relations, living conditions), in the ideal sense (legal consciousness, culture) and in the formal legal sense (the way of expressing and fixing the rule of law). That is, depending on the context, the term "source of law" is understood either as the causes of the emergence, formation of law as a phenomenon, or as formally expressed legal norms, taken by themselves. It should be noted that in Russian legal science, the "formal-legal" idea of ​​the source of law is the most common.

As for the "form of law", then, as a category, it reflects everything that exists in society, all social relations. The form of law refers to the ways in which the law is expressed. There are internal and external forms of law. The internal form is the structure of law, the whole system of elements. The external form is a complex of legal sources that consolidate legal phenomena and allow you to get acquainted with their content.

Along with the concept of "form of law" in the legal literature, one can find the concept of " legal form". If the form of law is understood as a way of existence, an external expression of law itself, then the legal form is considered as "a form of organization of non-legal - economic, social, political and other spheres of society with the help of law" Marchenko M.N. Sources of law. M .: Prospekt, 2011. S. 39. .

Two categories: "source of law" and "form of law" are quite closely related, and very often they are either identified or different. There are two main solutions to this issue.

The first solution is to completely identify these concepts. The source of law is reduced to the form of law and vice versa. In this case, usually "the form (source) of law is understood as certain ways (techniques, means) of expressing the state will of society" Baitin M.I. The essence of law. (Modern normative legal understanding on the verge of two centuries). M.: Law and State, 2010. S. 67. .

The sources (forms) of law in this definition are legal custom, normative act, judicial precedent, normative contract, etc.

The essence of the second solution to the question of the relationship between the source of law and the form of law is to consider these concepts as completely incompatible with each other. In this case, the concept of "form of law" is understood as a way of existence, organization, external design of the content of generally binding rules of conduct, and the concept of "source of law" as a system of law-forming factors that determine the content and form of law.

Obviously, these approaches suffer from some one-sidedness in the consideration of the issue. It seems optimal that the concepts of "source of law" and "form of law" should be considered in some cases as identical, and in others as non-identical. It all depends on what specific meaning the researcher invests in these terms. Thus, attempts are often made to classify sources of law according to various criteria, they are divided into real and formal, primary (material) and secondary (formal-legal) sources of law. In this classification, primary, material sources of law are understood as socio-economic, political causes, conditions for the emergence, origin of law. Secondary sources of law act in the form of normative legal acts, are external forms of expression of law, and are historically determined by primary sources of law. Based on this, according to M.N. Marchenko "The coincidence of the form and source of law takes place when it comes to secondary, formal legal sources of law" Marchenko M.N. Sources of law. M.: Prospekt, 2011. S. 57. .

When it comes to primary sources of law, then their coincidence with the forms of law cannot be, since in this case these concepts refer to different areas society, are two interrelated, but different phenomena.

Also, the distinction between the concepts of "source of law" and "form of law" can be traced quite clearly in general theoretical, scientific papers, in legal practice, these concepts are almost universally identified by Petrov A.A. How do the concepts of "source" of law and "form" of law relate. URL. http: //www.pravo.ru/faq/view/235/.

Thus, the question of the relationship between these concepts, as well as the question of their understanding, interpretation in modern legal science remains open, although it has been sufficiently developed. An important role in this case is played by the theoretical position of the scientist, the approach to understanding law in general, sources and forms of law in particular.

2. THEORY AND HISTORY OF LAW AND STATE, HISTORY OF STUDIES ON LAW AND STATE (SPECIALTY 12.00.01)

2.1. SOURCE OF LAW AND FORM OF LAW: CORRELATION OF CONCEPTS

Miroshnik Svetlana Valentinovna, Doctor of Law Position: Head of the Department of State and Legal Disciplines. Place of work: Russian Academy justice, Rostov branch. Email: [email protected]

Annotation: The question of the relationship between the concepts of "source of law" and "form of law" is still one of the most controversial. The author comes to the conclusion that the form and source of law are identical categories when it comes to secondary, formal legal sources of law.

Key words: law, source of law, form of law, mechanism of legal regulation, improvement of legislation.

THE SOURCE OF LAW AND THE FORM OF LAW: THE RATIO OF CONCEPTS

Miroschnik Svetlana Valentinovna, Dr. of Law. Position: Head of State and legal disciplines chair. Place of employment: The Russian Academy of Justice, Rostov branch. Email: [email protected]

Abstract: The question of the relationship between the concepts of "source of law" and the "right form" still remains one of the most controversial. The author comes to the conclusion that the form and source of law are identical categories when it comes to the secondary, formal legal sources of law.

Keywords: law, the source of law, the right shape, the mechanism of legal regulation, improvement of legislation.

Historical experience convincingly proves that as the political organization of society develops and improves, the mechanisms of legal regulation of social relations also change, the range of sources of law expands, the system of subordination changes, as the construction of harmonious relations between the individual-society-state continues, the structure and distribution of competence between public authorities. In this regard, the study of the relationship between sources and forms of law, their classification and system-hierarchical construction are of undoubted "eternal" scientific interest.

Legal science, despite its huge legal heritage, the origins of which we will find in the works of ancient philosophers, has not come to a consensus about what law is. It is no coincidence that the famous German scientist I. Kant noted that the question of what is law is as difficult for a lawyer as the question of what is truth for a philosopher.

In legal science, there are several approaches to the definition of the concept of law. From the point of view of normativism, law is a set of legal norms established and protected by the state that regulate social relations.

Representatives of the moral concept of law consider law as a system of concepts about legal regulation contained in the public consciousness and acting as an imperative that really determines the nature of the behavior of participants in social relations.

The sociological school of law defines law as a set of social relations that has developed in society, protected and protected by the state.

The natural law concept of law is based on a clear distinction between natural and positive law. Positive law is legitimate only if it implements such principles of natural law as freedom, equality, justice, private property.

In our opinion, the study of the essence of law must be carried out through the prism of the unity and difference between law and law, taking into account the basic ideas underlying legal reality.

Based on this, law can be defined as a system based on the principles of justice, equality and responsibility of legal ideas about the proper and possible behavior of participants in public relations, the legal consolidation and implementation of which make it possible to create legal regime harmoniously combining public, state, private and personal interests.

The study of the forms of law involves the allocation of a number of methodological premises. First, one should not forget the relationship between the form of law as a legal category and the form of law as a philosophical category. In the latter case, based on the general philosophical understanding of the form of law, we can formulate the following definition of the form of law as a philosophical category: the form of law is a way of organizing and interacting elements and processes of the legal system with each other and the outside world.

Secondly, the form of law is always characterized by a certain social essence and content.

Thirdly, the form of law and the content of law are paired legal categories, since it is impossible to break the form and content of law, which interpenetrate and complement each other. Hegel drew attention to this: "the content is not formless, but the form at the same time is contained in the content itself, and is something external to it."

Fourth, when studying the form of law, it should be remembered that this is a dynamically developing legal phenomenon. Changes in politics, the economy, and the social sphere are adequately reflected in legal norms, and, consequently, in the forms of law. This process can be carried out by filling the old form with new content or by the emergence of a new financial law. For example, the activities of the Constitutional Court Russian Federation, other judicial instances led to the emergence of a new form of law. Case law began to actively develop in Russia.

Gaps in Russian legislation

The question of the relationship between the concepts of "source of law" and "form of law" has been one of the most controversial for many years.

Some scientists argue their non-identity. For example, T.V. Kashanina understands the will of law-making subjects as sources of law. Accordingly, the will of mankind (human rights, principles of law) can be sources of law; the will of the people (referendum norms); the will of the state (legislative norms); the will of the team (corporate norms); the will of citizens, organizations (contractual norms). A form of law is a reservoir where legal norms are located. T.V. Kashanina distinguishes ten forms of law in a historical context, namely: legal custom, religious texts, legal precedent, business habit, sense of justice, normative act, legal doctrine, judicial practice, moral views, contract.

A number of scientists, also arguing the non-identity of the categories under consideration, understand the sources of law as the force that creates legal prescriptions, and the forms of law as the external and internal expression of law.

At the same time, many researchers consider the concepts of "form of law" and "source of law" to be synonymous. In particular, M.I. Baitin proceeds from the fact that the form (source) of law is “certain ways (techniques, means) of expressing the state will of society. The form shows what are the external manifestations of law, in what form it exists and functions in real life. With the help of the form, the state will is given an accessible and universally binding character, and this will is officially communicated to the executors. Through the form, the right, as it were, receives a "start in life", acquires legal force.

Indeed, is it possible to imagine the existence of formless law or a form of law without content. The content of law is clothed in a certain form, becomes its legal shell.

When considering the problem of the correlation of sources and forms of law, we proceed from the fact that this issue cannot be resolved unilaterally, straightforwardly. The analysis shows that “in some respects the form and source of law may coincide with each other and be considered identical, while in other respects they may differ significantly from each other and cannot be considered identical”^].

Form and source of law are identical categories when it comes to secondary, so-called formal legal sources of law. “Thus, it is emphasized that, among other things, the identity of the form and source of law, where the form indicates how, in what way the legal (normative) content is organized and expressed outside, and the source indicates what those legal and other sources, factors, predetermining the considered form of law and its content.

As for the primary sources of law, here it is incorrect to consider the sources and forms of law as interchangeable categories. Material, ideal, social sources of law are certain factors that significantly affect the processes of lawmaking and law enforcement.

Thus, the concept of "source (form) of law" can be considered in several aspects:

In the material sense of the word, the sources of law include the material conditions of society, giving rise to the need for legal regulation of social relations, the need to achieve a compromise between the directly opposite interests of various subjects.

In the ideal sense of the word, the source of law should be recognized as the legal consciousness of the legislator, who believes that this group of social relations should be regulated by appropriate legal regulations. In many ways, the timeliness of the adoption of a particular regulatory legal act depends on the will of the competent state body.

Finally, the source of law in the formal sense of the word is various forms of external expression of the rules of conduct for participants in social relations.

These include: legal customs, normative legal acts, judicial (administrative) precedents, normative treaties, religious texts, legal doctrine.

Not all of these sources of law are related to Russian law. Since the Russian Federation is a secular state, religious norms cannot be used to regulate social relations. We consider scientific doctrine as an informal source of law capable of influencing the position of law-making and law enforcement agencies.

Sources of law, depending on their legal significance and the order of appearance, can be divided into primary, secondary and additional.

The primary source of law is the Constitution of the Russian Federation, which contains the basic ideas underlying the mechanism of legal regulation of social relations.

Secondary sources of law should be recognized as normative legal acts, normative legal contracts, as well as legal customs.

Additional sources of law include judicial precedents that have appeared in the Russian legal system relatively recently, but have already firmly occupied their “niche” in the regulatory system.

In domestic science and practice, there is an ambiguous attitude towards precedent practice. It seems that its naked denial or simple ignoring is "yesterday".

In fact, there are legal precedents. They are directly involved in the legal regulation of social relations. Further Scientific research should be aimed at solving problems related to ensuring the uniformity of Russian case law. Her flexibility as a very positive quality given source law, in some cases is leveled by "wild" inconsistency, when the same court does not take into account its own conclusions made earlier on a similar legal dispute.

In legal science and practice, the "eternal dream" is the creation of an ideal system of sources of law. Some researchers consider this to be a utopia in general, since social relations are very dynamic and the legislator objectively does not have time to cover, foresee, and reflect all their diversity in normative prescriptions in a timely manner.

In our opinion, the creation of an ideal system of sources of law is quite realistic. In many ways, the solution

of the problem under consideration depends on a clear definition of the criteria for an ideal, and, consequently, effective form of law. It must be characterized:

Clear legislative consolidation of its social and moral orientation;

The optimal combination of such legal means as legal permissions and legal prohibitions, legal incentives and legal restrictions, legal incentives and legal punishments;

Scientific elaboration (which finds expression, in particular, in increasing the role of legal doctrine, introducing the practice of developing theoretical models for the operation of legal prescriptions);

Systemic relationship with other sources of law;

Legitimacy (support from the majority of the population, awareness of the need to adopt these legal regulations, recognition of their fairness);

High technical and legal quality of the contained norms, absence of reference norms;

Simple implementation mechanisms;

Predictability of the legislator, providing the necessary dynamics of development of the legal system of the country.

Bibliography:

1. Hegel G.V. Encyclopedia of Philosophical Sciences. - M., 1974. T.1. P.298.

2. Kashanina T.V. Evolution of forms of law // Lex russica. 2011. No. 1. S. 34 - 53.

3. See: Ofman E., Stankova U. Decree Supreme Court and the Labor Code of the Russian Federation // Labor Law. 2011. No. 5. P. 85 - 93; Ershova E.A. Sources and forms of labor law in Russia // Labor Law. 2007. No. 10. P. 53.

4. Baitin M.I. Essence of law (Modern normative legal understanding on the verge of two centuries) - M., 2005. P. 67.

5. Marchenko M.N. Sources of law: Proc. allowance. -M., 2008. S. 57.

6. Marchenko M.N. Sources of law: Proc. allowance. -M., 2008. S. 57.

7. Miroshnik S.V. To the question of the subjects of financial law. // Business in law. International economic and legal journal. No. 2, 2012, pp. 151-154

8. Miroshnik S.V. Financial and legal regime of social off-budget funds. // Gaps in Russian legislation. International legal journal. No. 2, 2012, pp. 273-276

9. Miroshnik S.V. Arbitrage practice in the mechanism of legal regulation of administrative relations. // Gaps in Russian legislation. International legal journal. No. 6, 2012, pp. 201-206

10. Miroshnik S.V. On the question of sources administrative law. // Gaps in Russian legislation. International legal journal. No. 6, 2012, pp. 207-210

Literature list:

1. Hegel GV Encyclopedia of Philosophy. - M., 1974. V.1. S.298.

2. Kashanina TV The evolution of forms of law / / Lex russica. , 2011. Number 1. Pp. 34 - 53.

3. See: E. Ofman, Stankov W. The Supreme Court and the Labor Code of the Russian Federation / / Employ-

ment Law. , 2011. Number 5. Pp. 85 - 93; Ershov EA Sources and forms of labor law in Russia / / Employment Law. 2007. Number 10. S. 53.

4. Baytin MI The essence of law (modern regulatory pravoponimanie on the verge of two centuries) - Moscow, 2005. S. 67.

They must necessarily be objectified, expressed outwardly, contained in various forms, which are the way of their existence.

Forms of law It is a way of expressing outside the legal rules of conduct.

Legal form and form of law

Before analyzing the various forms of law, it is first necessary to consider the relationship between concepts:

• • form of law,
  • legal Form,
  • source of law.

under legal form almost all legal means involved in the legal regulation and mediation of certain social processes, in solving social problems (for example, legal forms of economic regulation), the category "legal form" is used primarily to structure social ties and show the role of law as a formal legal institution in its relationship with the socio-economic, cultural, moral and political content - diverse social relations.

Forms of law- only specific "reservoirs" (S.S. Alekseev), which contain the rules of law; the form of law is designed to streamline the content of law, to give it the properties of a state-imperious nature.

In the literature there are two main points of view on the problem correlation of the concepts "source of law" and "form of law":

1. 1. the named concepts are identical;
   2. the concept of "source of law" is broader than the concept of "form of law".

The latter point of view is the dominant one today. Indeed, if we proceed from the generally accepted meaning of the word "source" as "any beginning or foundation, root and cause, starting point", then in relation to legal phenomena, three factors should be understood as the source of law:

• • source in the material sense (material conditions of society, forms of ownership, interests and needs of people, etc.);
  • source in the ideological sense (various legal teachings and doctrines, sense of justice, etc.);
  • source in the formal legal sense - this is a form of law.

Types of form of law:

1. 1. legal custom;
   2. regulatory legal acts (NLA) of state bodies;
   3. regulatory legal acts (NLA) public organizations(with the sanction of the state);
   4. legal (normative) contract;
   5. precedent.

legal custom - this is a historically established rule of behavior contained in people and has become a habit as a result of repeated application, leading to legal consequences. Customary law is chronologically the first form of law that dominated the epoch of feudalism. And although legal custom is used in a number of modern legal families (traditional, religious), in the Russian legal system the role of legal custom is insignificant (for example, according to the Civil Code of the Russian Federation, certain property relations can be regulated by business customs).

Normative act is a legal act containing the rules of law and aimed at regulating certain social relations. These include: the constitution, laws, by-laws, etc. A normative act is one of the main, most widespread and perfect forms of modern continental law in Germany, France, Italy, Russia, etc.

Normative contract - an agreement between law-making subjects, as a result of which a new rule of law arises (for example, the Federal Treaty of the Russian Federation of 1992; collective agreement concluded between the administration of the enterprise and the trade union). Unlike simple contracts (contracts-transactions), normative contracts are not of an individually-one-time nature. If two firms enter into a particular deal, they do not create a new rule of law (this rule is already in the Civil Code of the Russian Federation). The participants, concluding a normative contract, create a new rule of conduct - new normal rights, acting as law-making subjects.
In contrast to the regulations government bodies, normative contracts are the result of an agreement between equal subjects on activities of their common interest.

legal precedent is it judicial or administrative decision in a specific legal case, which is given the force of the rule of law and which is guided by the resolution of similar cases. It is distributed mainly in countries of the common legal family - Great Britain, USA, Canada, Australia, New Zealand, etc. All of these states publish court records from which information on precedents can be obtained. The recognition of a precedent as a source of law means the recognition of the law-making function of the court.