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About a subject of history of domestic science: to statement of a problem



retrospektiva

About a subject of history of domestic jurisprudence: to statement of a problem

M.A. Kozhevina *

The reason which induced to address the subject designated in article heading originally consisted in so-called production need. The course "History and Methodology of Jurisprudence" was entered into the program of additional professional education in "law" in 2006. As a result, there was a need to go deep into essence of a new subject matter. The programs posted on the websites of the leading higher education institutions of the country (Moscow, Sank-Peterburgsky, Ural universities) showed their essential distinction both in a form, and according to contents. On the one hand, this fact demonstrates variety of approaches to studying new discipline, with another, such situation is caused by lack of independent disciplines — stories of law and methodology of jurisprudence. The last circumstance, in our opinion, also is the main reason of pluralism of opinions.

The relevance of history and methodology of jurisprudence as disciplines at anybody does not raise doubts, however definition of its subject and contents in no small measure depends on understanding of a subject of history of jurisprudence and methodology of jurisprudence as independent scientific disciplines, and more — on width and depth of readiness of this directions. At the time, noting absence in our country of law history as science or a subject matter, V.S. Nersesyants pointed to "essential gaps according to questions of ontology, gnoseology and axiology of law" 1. To it

also other authors echo. Some connect the positive solution of problems of law with a "deep" research of the right and use modern methodological instrumentariya2. Others consider that for jurisprudence there came the "moment of truth" defining whether the Russian jurisprudence will manage to become completely adequate not only current (situational) social inquiries, but also ideals modern nauki3. The third that "at a turn of the millennia this task is far from performance more than ever in the past that allows to tell about symptoms of crisis of modern Russian theoretical sense of justice" 4 and consequently, need of development of methodology of jurisprudence as rather independent "naddistsiplinarny" approach to problems scientific poznaniya5.

Really, modern public processes which are endured by the Russian State are connected with serious ideological, political, economic and other transformations. There are political and social withdrawal pains of the traditional relations, there is a search of optimum forms of existence of human community, new social groups are formed, stereotypes are broken down and new public reference points namachatsya, other moral values are redistributed, liquidated or created. Jurisprudence as special social institute and the sphere of formation of new knowledge of the right, being in epicenter of these transformations, finds a large number of questions which permission is possible only on condition of crumpled

* In our magazine it is published for the first time.

prelogical reflection of humanitarian knowledge. V.M. Syrykh considers that the jurisprudence has to "contain the developed list of criteria, being guided by which it would be possible to distinguish quite well scientific knowledge of the right from all other forms of legal consciousness and consciousness in general" 6. And this opinion is quite reasonable.

The condition of modern jurisprudence is characterized by a mnogoaspektnost of researches. Expansion of a range of scientific researches brings to melkotemyyu and to decline in quality of dissertation and monographic works. The active appeal of lawyers to a nonlegal perspective generates danger of washing out of borders of a subject of jurisprudence, and in this regard there is a need of differentiation of legal and nonlegal problems for legal researches. To keep "scientific autonomy", it is necessary to resolve an issue of subject definiteness of jurisprudence.

At the same time there are methodological problems connected with a ratio of versatile ideas of the right, their synthesis within a uniform theoretical system, issues of correlation of new ideas of the right with the settled concepts and categories. At the same time among research means particular importance is attached to intrinsic characteristics of science and fundamental legal concepts which formation and evolution it is directly connected with formation of an object of jurisprudence. Here it is possible to agree with N.N. Tarasov that "the appeal to emergence of the concepts which are means of partition of an object of a research, fixing of scientific problems allows to pay through a problem of multidimensional nature of legal researches, attention to the complex organization of a subject of jurisprudence in a perspective of its formation and development" 7.

In this regard the problem of development of history of jurisprudence as the independent scientific discipline having the object and an object of research is updated. Scientific search cannot be any, all experience of modern science is result of long increment of scientific knowledge of many generations of lawyers. And if to consider science as set of the facts, theories and methods, then, by definition of the American science theorist T. Kuhn, "scientific are people who more or less successfully contribute to creation of this set, and development of science at such approach is a gradual process in which the facts, theories and methods develop in the escalating stock of achievements representing scientific methodology and knowledge" 8.

In scientific literature it is quite often possible to meet identification of concepts "science historiography" 9 and "science history". With this position in full

the measure cannot agree. The historiography in translation from Greek means the description (investigation) of history, i.e. the analysis written in the past. Science history — more capacious concept which includes not only process of the description of any given problems of science, but also process of accumulation of scientific knowledge taking into account real historical conditions in which any given scientific concepts, theories, the directions, schools arose and developed. It and process of formation of the researcher as scientist, it and scientific practice, etc.

In relation to our subject to differentiate the concepts "jurisprudence historiography" and "jurisprudence history" — means to define an object of research. In this case experience of historians is most valuable. History of historical science today — the issued independent nauko-vedchesky direction which endured the difficult periods of formation and development. For the historian of jurisprudence it is important to study this process in terms of understanding of a subject of scientific discipline to define the main directions of formation of similar discipline in law.

The historiography arises in the 19th century when historical knowledge turns into science. With development of science also understanding of a subject isto-riografii10 changes. At the beginning of the century — this istoriopisaniye, a bit later a subject becomes history of a historical thought and the main task seems "to understand need in various subjektiviz-move on studying the Russian history". Then there is a need to give an overall picture of development and mutual change of those theories and general views which were a basis of new researches of the Russian history including "the theoretical motives directing science". In the XX century the problem of critical studying historical sources and scientific literature "in their gradual development" also is involved in a circle of the studied problems. During formation of the Soviet history the historiography was considered utilitarianly as development of a historical thought and the historical theory in total with a technique and development of the research equipment i.e. as means of comprehension of research experience of predecessors.

In the 1960th the subject of discipline was accurately designated and included process of accumulation of knowledge of development of society and their transformation into science, characteristic of different views on the historical phenomena, improvement of methods of a historical research, fight between the directions in historical science, i.e. history of how the accumulated actual knowledge — the history of the replaced concepts, theories was comprehended and generalized. As the most important elements of a subject of history of historical science the philosophy of history and history of a social and political thought having and the object of research were allocated.

And, at last, the historiography was perceived as a part of history of the Soviet culture in three values: a) as a complex of the scientific works (the monograph, a research, article) devoted to a certain period of the historical past; b) as the industry of scientific knowledge allowing to establish degree of study of separate problems within one or several periods; c) in wider — as science history. Also the problems of a historiography consisting in the answer to a number of questions cleared up: a) as there was an accumulation of historical knowledge; b) as the equipment and a technique of the analysis of historical sources developed; c) as the perspective of historical researches and d) the most important changed — as scientific concepts and theories developed and changed. Thus, the direction connected with studying methodology of a historical research in its historical development both in one country and in connection with world history of science became the main thing in the history of historical science.

In modern understanding the historiography as history of historical science is the independent scientific discipline which is on a joint of cultural history, science of science and social history and studying both production and reproduction of historical knowledge, and its consumption and distribution. Important and the fact that historians of science are interested not only in the end results of empirical and theoretical researches, but also process of works of the researcher, its "historiographic life" as a necessary condition of formation of the ideas, scientific search and self-realization.

It is necessary to recognize that the domestic jurisprudence in such context never considered the history. Therefore, science history as the independent direction was not created though interest in jurisprudence history among jurists existed always, but it were only incidental attempts of analytical digression to the past of law. Those periods when the scientific legal community endured crisis which already by the nature is a necessary prerequisite of forward development of science differed in the greatest activity, in our opinion. At the crisis moments there are withdrawal pains of old science and active search of its new image corresponding to the changed realities begins. Crisis is characterized by heated scientific debates and expansion of the informative field of researchers, emergence of new strategy of scientific search. Crisis indicates that "the scientific models recognized as all during certain time" (paradigms) 11 are not able to explain well new results received by scientific community any more, the arising research techniques do not fit into the standard image of science, the gap between amplifies

empirical data of science and its theoretical designs.

The foundation to historiographic process in the Russian jurisprudence was laid at boundary H_H-HH of centuries N.M. Korkunov and G.F. for Shershenevich12 some of the first pointed that the domestic jurisprudence begins to develop only in the 18th century, trying to overcome centuries-old lag from the European science, but, projecting the European experience, after all develops on the canons. They designated the main stages of development of the Russian jurisprudence in the 18-19th centuries, tried to mark out its peculiar features, to define the general and special with the European jurisprudence and extent of influence of the European law schools on development of domestic jurisprudence and legal philosophy. Then N.N. Alekseev in work "Sciences public and natural in historical relationship of their methods. Essays on history and methodology of social sciences" 13 considered the humanities including law in a historical context as special area of scientific rationality, paying attention to original forms of "myslimost" within domestic jurisprudence and differentiating philosophical, theoretical and yuridiko-dogmatic approaches to the right. In general the attention of researchers concentrated on problems of history of legal exercises, in the subsequent created in independent scientific discipline which problems in small degree concerned science history questions. Though as it seems to us, history of legal exercises and history of jurisprudence — the disciplines developing in parallel and having the general borders of a research. Origin and development of a legal thought yet not science, but an objective condition for development of scientific discussions, formation of the identity of the scientist, a statement in science of any given theory, school of sciences. At the same time this and necessary condition for formation of methodology of legal science. Studying methodological bases in development of jurisprudence creates the base for knowledge and assessment of modern concepts in understanding of the right and the legal phenomena.

During the Soviet period the surge in historiographic researches in the field of law falls on the 1950-70th 14 generally these are state-of-the-art reviews of scientific works in separate branches of jurisprudence or characteristic of creative activity of leading experts of the right. In this framework the subject of history of jurisprudence and authors of the first monographic composition on stories Soviet historical right-is considered

15

howl nauki15.

During the Post-Soviet period interest in problems of history of science weakened, not numerous versatile issledovaniya16 it is impossible to estimate as the independent direction in science. And if to consider that

the historiographic way which there passed the historical science (from history of a historical thought, to history of science and history historical znaniya17) can be concluded — the modern Russian jurisprudence has no as historical science, a similar scientific arsenal, its history as independent scientific discipline was not created and is only at a formation stage yet.

The need for development of this scientific direction is obvious that it, in turn, obliges researchers to define an object and a subject of history of jurisprudence. Approaches to this problem can be ambiguous, polemics and discussions are possible. In our opinion, by an object of history of jurisprudence it is possible to designate jurisprudence as the major social institute, spheres of intellectual activity and formation of new knowledge of the right. The subject of history of jurisprudence has to include also a historiography of jurisprudence (the analysis of scientific literature and editions on separate problems of science, the industries of the right, the general theory of the right), and a historiography of origin and development of the legal knowledge taken in all of them forms and manifestations. And the subject of scientific discipline is not something forever certain, and the substance changing as a result of public, economic, political and other processes and also in connection with the tasks facing science at any given historical stage.

Any science including legal, has the internal regularities that causes specifics of understanding of a subject of the science by researchers of different eras, their preferences in knowledge of the existing realities. In this regard history of jurisprudence cannot be considered only within cumulative model of development, and it is necessary to disclose historical integrity of science both in a vertical cut (chronologically), and in horizontal (features of existence of legal community in each single period).

At the time the academician M.V. Nechkina noted that the science by the nature is collective and how many work of the scientist would not be individual, he relies on experience predshestvennikov18. Therefore, the historian of jurisprudence has to not only define who when and under what conditions opened the scientific fact or created the scientific concept, entered any given tools, to explain the reasons interfering "accumulation of components of modern scientific knowledge" but also to reveal in full the relations between the researcher and his ideas and the ideas of his scientific community, i.e. the ideas and concepts of his teachers, contemporaries and direct successors in the history

19

nauki19.

Answers to questions: "What was studied? From what positions? By whom it was studied? How studied did become property of others?" — will allow to reveal the important factors which influenced development of science. It and the external conditions forming "sociality" of science, and internal, connected with the scientific community having the organization, the principles and norms of existence. It and the system of theoretical representations, methodology and scientific technologies developing under the influence of philosophical views and world outlooks of researchers dominating in scientific community. It and the identity of the scientist in the course of his creativity.

Historical knowledge of science allows to design methodological fundamentals of jurisprudence, creates base for the decision researchers as private problems of science, and for an opportunity to look at the right from different sides as on whole, to give system character to modern legal researches.

The quality of legal works of theoretical and applied character is depending on the width of subject and depth of the historiographic analysis of a number of the problems connected with identification of conditions of formation and development of any given legal concept, namely the public and political relations, the level of development of social and other sciences, extents of their interaction and interference, continuity in scientific theories and practice. The obligatory making component of a historiographic research — the source study work consisting in the comprehensive analysis of the regulatory legal base, establishment of level of its development, degree of its compliance to the real-life mechanism of legal regulation as the general, and private public problems.

Knowledge of the past of jurisprudence will allow to estimate in full and fully and all complexity modern as some scientists note, "moment of truth" for science — whether the Russian jurisprudence will manage to become completely adequate not only current (situational) social inquiries, but also the ideals of modern science capable not only to explain current "present", but also to effectively predict and project "the basic future" of the right, or

"will systematically recede" on a descriptive comment

20

torsky pozitsii20.

1 V.S. Nersesyants. Law: (Introduction to a course of the general theory of the right and states). — M, 1998. — Page 1.
2 See, e.g.: Crude V.M. Logical bases of the general theory of the right: in 2 t. — M, 2000. — T. 1: Element structure. — Page 12.
3 See, e.g.: N.N. Tarasov. Methodological problems of jurisprudence. — Yekaterinburg, 2001. — Page 8.
4 A.V. Polyakov. St. Petersburg school of legal philosophy and problem of modern jurisprudence//Jurisprudence. — 2000. — No. 2. — Page 4.
5 See: N.N. Tarasov. Decree. soch. — Page 4.
6 Crude V.M. Decree. soch. — Page 21.
7 N.N. Tarasov. Decree. soch. — Page 155.
8 T. Kuhn. Structure of scientific revolutions. — M, 2003. — Page 24.
9 In the same place. — Page 25.
10 See in more detail: A.M. Sakharov. Methodology of history and historiography. — M, 1981. — Page 91-127.
11 T. Kuhn. Decree. soch. — Page 109-111.
12 See: G.F. Shershenevich. Legal philosophy history. — SPb., 1907; N.M. Korkunov. Legal philosophy history: a grant to lectures. — SPb., 1908.
13 See: N.N. Alekseev. Sciences public and natural in historical relationship of their methods: essays on history and methodology of social sciences. — M, 1912.
14 See, e.g.: A.E. Pasherstnik. To the thirtieth anniversary of the Soviet labor law//Owls. state. — 1947. — No. 10; A.A. Gertsenzon. Ways of development of the Soviet science of criminal law in thirty years//Owls. state and right. — 1947. — No. 11; M.S. Strogovich. At jurisprudence sources//Sots. legality. — 1957. — No. 10; I.V. Pavlov. About development of the Soviet legal science in 40 years//Owls. state and right. — 1957. — No. 11; 40 years of the Soviet right (1917-1957). — L., 1957-1958. — T. 1-2; V.E. Grabar. Materials on history of literature of international law in Russia. — M, 1958; N.N. Polyansky. Essay of development of the Soviet science of criminal proceedings. — M, 1960; Clumps -

N.Ya. ritsa. From history of science of the Soviet state law. — M, 1970; Plotniyek A.A. Pyotr Stuchka and sources of the Soviet legal thought. 1917-1925. — Riga, 1970; O.I. Chistyakov. About scientific literature on the history of the Soviet state and the right at the present stage//Problems of history of the state, the right and political doctrines. — M, 1974; etc.

15 See: Soviet historical and legal science. Essays of formation and development. Jurisprudence history. — M, 1978.
16 See, e.g.: N.I. Zagorodnikov. Outstanding Russian scientist-lawyer N.S. Tagantsev. — M, 1992; Anthology of the legal obituary. — Rostov N / D, 1999; Formation and development of schools of sciences of the right at the state universities of Russia: mat-ly nauch. konf. — SPb., 1999. — Part 1-6; Codon S.V. Yuridicheskaya policy of the Russian state. 1800-1850: avtoref. yew.... Dr.s yurid. sciences. — M, 2004; A.V. Naumov. Origin of the Russian science of criminal law (vtor. floor. XVIII \lane floor. The 19th centuries)//State and right. — 2006. — No. 1; L.B. Tkachenko. Formation of a system of legal higher educational institutions of the USSR. 1917-1931//Right and education. — 2006. — No. 4; The Heading "Legal Heritage of Russia" in the Russian legal magazine (No. 2, 2006, etc.) with publications about outstanding lawyers of Russia and their works; etc.
17 See: A.M. Sakharov. Decree. soch. — Page 104.
18 In the same place. — Page 115.
19 See: T. Kuhn. Decree. soch. - Page 25.
20 See: N.N. Tarasov. Decree. soch. — Page 8.
Jackson Warren
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