Separate problems of defining the content of the concept source of law in criminalism

UDC 343.9
Publication date: 30.11.2022
International Journal of Professional Science №10-2022

Separate problems of defining the content of the concept source of law in criminalism

Brager D.K.,
Ganevich O.K.,
Romel S.A.,
Shevelev M.P.

1. PhD in Law, Associate Professor,
Far Eastern State Transport University
2. Senior Lecturer,
Far Eastern State Transport University
3. Senior Lecturer,
Far Eastern State Transport University
4. student,
Far Eastern State Transport University
Abstract: In the modern system of sources for the formation of forensic methodological recommendations and concepts, the rules of law play the main important determining role. Since its inception, forensic science has continued to provide the investigator and other law enforcement officers with tools for detecting, investigating crimes and forensic investigation. One of the most important foundations of the content of this science, like any other legal science, is the concept and content of the term source of law. This article is devoted to various problems of determining the essence and completeness of the concept of sources of law in forensic science, as well as the way to solve and change them.
Keywords: problems, sources of law, forms of law, criminalistics, legal science.

There are many debatable concepts in the domestic legal doctrine. One of these concepts is “source of law”. Its problematic nature and relevance are explained by the ambiguity of the category «source». I.V. Mikhailovsky focuses on the fact that in science there are several interpretations of the concept of “source of law” [11].

The term “source of law” was introduced into scientific circulation by ancient Roman lawyers, but this category became the subject of independent study only in the 19th century [10].

Attempts to interpret and present a competent definition of the category «source of law» through the prism of forensic science cause objective difficulties. In this vein, as a rule, sources of law are considered as forms of expression of powers and forms of realization of the will of the state. In other words, there is a union of two terminological categories — «source» and «form» of law.

Domestic forensic scientists have repeatedly made attempts to concretize the category of «source of law» through the «form». However, a unanimous opinion on this matter has not yet been formulated.

From about the middle of the 20th century, the concept of «source of law» was replaced by the category of «form of law» and for some time was widely used in practice. Later, the terms changed again and the concept of “source of law” returned to practice again. In branch sciences, the concept of “source of law” is still used today.

In the domestic scientific legal literature, regarding the correlation of the above terminological categories, the following doctrinal positions have been formed:

  1. Identification of form and source:

— equalization of concepts to ensure interchangeability [3];

— complete and correct comparison.

  1. Separation of concepts in various versions:

— source adjustment with one of the form values ​​[4];

— the coincidence of the form with at least one of the meanings of the term «source» [5].

  1. Complete separation of concepts using additional terms that allow comparing these terminological categories [7].

In an effort to move away from the ambiguity of the term “source of law”, some domestic criminologists have proposed other terms (“normative factor”, “forms of law”, etc.).

But this only complicated the doctrine of the main sources of law, because of this it was necessary to delimit new concepts and categories from an already existing term. As a result of active scientific research by domestic criminologists in the Soviet period, the form of law began to be considered differently. There were two forms of legal norm — internal and external. It is the external form that received the name of the source of law. Accordingly, the source of law can be interpreted as an expression of the external form of legal norms. In the works of domestic criminologists, attention is focused on the fact that only an objectified norm acquires a universally binding character, and its implementation is ensured by measures of state influence.

In the domestic doctrine, since the Soviet period, discussions have not stopped about the need to use additional clarifying terms with the terminological category “form of law”. Some authors consider it necessary and propose to fix the law with its forms. Others take a different position. But the discussion is not limited only to the definition of the relationship between the categories of «form» and «source» of law. Even with some coincidence of the meaning of the interpretations of these terms, their essence is not clear.

The opinions of domestic forensic scientists on the issue under consideration were divided. According to one group of authors, we are talking about the rule-making activity of the state, since the source of law is a way of external manifestation of the legal rules of behavior and the will of the state [9]. According to the authors of another group, we should talk about the results of this activity. These include laws, various normative documents, by-laws, etc. [1]. The authors of the third group adhere to a mixed approach [2].

So, under the source of law should be understood as the possibility of interpreting the rule of law and the way it is fixed, recognized at the legislative level. Through this method, the will of the legislator becomes binding. In other words, the source of law is where the rule of law is contained (fixed). In accordance with the generally accepted definition, sources of law are recognized as official documents in force in the state, authorizing or establishing rules of law.

It is also worth paying attention to the possibility of adopting the same acts in different ways. For example, some sources of law are adopted by parliament, while others require a referendum. It is also worth considering the features of law-making work. In particular, one of the features is that first the result to be achieved is formalized, and then the action plan is drawn up.

Given the above, ideas about the form and source of law become more reasonable and reliable. Thus, the transparency and heterogeneous nature of the concept of “source of law” is fully traced, as well as the need to clarify this concept by involving additional concepts or preliminary designation of the range of use. Otherwise, one would have to abandon the use of this concept and replace it with a more specific and clear concept.

In the domestic legal doctrine, ideas about such aspects of the concept of “source of law” are popular: ideological, material, formal legal. In practice, in addition to social sources, natural sources of law are also widely used. Natural law is a separate specific group of rights and covers generally recognized inalienable rights (including the right to life, freedom of thought, immunity, etc.). The emergence of natural sources of law was facilitated by the influence of factors of various kinds (biological, climatic, natural, geographical, etc.).

So, considering the sources of law, we will make important remarks:

  1. From an ideological standpoint, the term «source of law» is a legal ideology or legal consciousness (of both the legislator and the entire people). In this context, the source of law is revealed in legal views and ideas that are of fundamental importance in the development of positive law.
  2. From the position, the material aspect, the sources of law are the primary sources. In a material sense, the source of law is the economic situation of the life of society or social relations. In other words, we mean the system of economic relations, as well as the forms of ownership that exist in society.
  3. From the standpoint of a formal legal position, a source of law means a way of fixing the norms of law and options for their existence, i.e., a mechanism for translating social requirements into legal norms. We are talking about special legal constructions, with the help of which the norms of law are not only perceived as such, but also function precisely as legal norms.

The doctrine of the sources of law during the history of the development of domestic legislation has changed many times. In the Soviet period, law had a class character. Also, the source of law in the Soviet legal doctrine was considered as the dictatorship of the working class, the primacy of the Soviet power, as well as the way in which the rule of conduct through the legislature is given mandatory significance [12]. The book “Forms of Soviet Law” [6] focuses on the fact that the form of law, like its content, also has a class meaning.

Many Soviet and modern forensic scientists agree that the source of law is the activity of the state (legislator) in establishing universally binding legal norms [8]

Let’s summarize the above. So, the source of law is a form of personification of the rule of law, its formalization and consolidation, coming from the state or recognized by it, through which the will of the legislator acquires a binding character. The sources of forensic science are: science, law and law enforcement practice. The tasks solved by forensic science are of two types: special and general. Among the general tasks of criminology is the task of providing effective assistance to law enforcement agencies in the fight against crime. This problem is solved using special techniques and tools. Special tasks covered:

— studying the practice of investigating and solving crimes, as well as preventing criminal acts;

— analysis and study of patterns that are the essence of the subject of criminology;

— identification and analysis of valuable information in foreign studies of leading criminologists, the use of their developments in scientific work and in the investigation of criminal offenses;

— creation and improvement of forensic methods, techniques and means to prevent serious crimes;

— development and improvement of the methodological, tactical and organizational foundations of the investigation at the preliminary stage of the judicial investigation, as well as during the forensic examination.

The scope of criminalistics includes the disclosure of crimes that caused material damage to citizens. Therefore, in relation to criminals, measures of state coercion are subject to application. In addition, an extremely conscious and responsible attitude to the observance of the legitimate interests and constitutional rights of citizens is assumed. The Constitution of the Russian Federation acts as a guarantor of the integrity and inviolability of the rights and interests of citizens.



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