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2.3. Essence of categories «stability of the right"and"stable pra - In »

The stable right is value of a society, an ideal, to which neob -

hodimo to aspire, in spite of the fact that this value can be represented

The utopian. It means that the importance and utility are inherent in the right

Not by nature, it is not simple owing to its internal structure in itself, and jav -

ljajutsja value judgment of its concrete properties which are involved

In sphere of social being of the person, the person in them is interested or ispy -

tyvaet requirement.

The considered category has universal character. It ispol -

zuetsja for the characteristic not only the right, but also many phenomena, including

The legal. Them concern: legal relations, the Policy of Law, pravoprime -

nitelnaja practice, the law, legality, the law and order, etc. Application ponja -

tija "stability" to the most different phenomena should mean, that they nade -

ljajutsja identical characteristics. It is possible only at definition

Maintenances of this category.

Category «stability of the right» base for the characteristic stably -

sti other legal phenomena. It objectively, as all other legal

The phenomena are genetically connected with the right and their existence is caused it

Existence. This category is legal and by means of it occurs

Positive law knowledge, as it - an element forming науку274,

And in interrelation with other categories – scientific теорию275.

The category "stability" allocates the right qualitative harakteristi -

kami.

Aristotle, defining quality as the basic category, wrote: «Kache -

274 Anufrievs, L.P.parit of the international and international private law:

Legal categories. – M: Spark, 2012. – With. 8.

275 Vasilev, A.M.legal of a category: methodological aspects of system engineering ka -

tegorii theories of law. – M: JUrid. Lighted., 1976. – with. 37.

117

stvom I name thanks to what subjects are called as such »276. It

Allocated some values of quality:

1. Steady and passing properties. According to the thinker, ustojchi -

voe property differs from passing that it is more long and proch -

It. As passing properties or conditions are called such qualities,

Which easily give in to fluctuations and quickly change. The last is easy

Gives in to change, and the first more for a long time and is a little subject from -

menenijam.

2. Those qualities about which it is spoken as about knack or

Inability.

3. Undergone properties and conditions. «And undergone properties -

mi they are called not because that is allocated by them, something preterpe -

vaet or tests: honey is called as sweet not because it something ispy -

tal, and all to volume similar - in the same way ». Properties concern them and consisting -

nija which are inseparable by nature a subject.

Thus Aristotle distinguished qualities from a condition. «And those phenomena, to -

torye arise from something easily stopping and quickly disappearing,

Name conditions, but not qualities »277.

With reference to the right stability can objectively be rassmotre -

On as the qualitative characteristic in first and last senses. In these

Senses quality was defined also by J. Lock. It divided all qualities on pervich -

nye — inherent in bodies (density, extent, the form, movement

Or rest and number) and secondary — not inherent in in itself things, and before -

stavljajushchie itself only sensations of the subject (colour, sounds, tastes and t.) 278.

Stability of the right can be considered as undergone, per -

vichnoe property of the right. Thereupon, it is possible to agree with M.N.Marchenko, to -

toryj allocated as intrinsic property of the right stability and neraz -

276 Aristotle. Categories. – with. 72.

277 In the same place. – with. 73.

278 Locks, J. Experience about human reason. – with. 183.

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ryvnuju with it normativnost. Nevertheless, in this case has no value and

Sense right definition as stable. This natural property obla -

Grants any right, and any right – it is stable. Stability loss as sushche -

stvennogo the quality provided normativnostju, leads to that

The right ceases to be the right. There can not be an astable right, and, sledova -

telno, comparison of stability of different legal systems is not meaningful, and also

The phrase use «the stable right».

Other situation is observed, when stability is considered as

Secondary, steady and passing property. In this sense stability not

Is the essential characteristic of the right, in the sense that if the right not

Will possess quality of stability it all the same remains the right. In

The given case stability defines quality of the right at which can be

Contrast. The astable can resist to the stable right.

In this sense the term "stability", when it of races - is used

smatrivaetsja as desirable property of the right. In this context stability as

Insignificant quality of the right gets the practical importance.

If to consider stability as the qualitative characteristic, that,

According to Aristotle, qualities suppose the big and smaller degree. That

Not less, stability has no such degree. The right of one state not

There can be stabler, than a right of other state, civil

Be right the right of one cannot stabler, than criminal, and also

From them cannot be «little bit stable» or "almost stable". It

Can be either stable, or astable.

In the given context stability and the right act according to termino -

logii Aristotle concepts correlated. Correlation in this case

Who is expressed in «sensual perception» the rights, in its estimation of the one in force

The nature possesses such property, that is the person.

Stability of the right a-estimated category of the sensual world of the person.

For perception of stability of the right exist any sensual under -

119

bija, «which are absolutely easy for revealing» 279. The feeling of stability is possible you -

To show by application of sociological methods.

The estimation is possible only in the event that there is a conscious experience, if

Is, to what to compare, therefore to speak about the stable right probably in that

Case if objectively there is also an astable. Thus with the stable

The right connects positive emotions, and with astable – negative.

The estimation of the right as the stable can be carried out by people. At

Each person usually there is own opinion. Thus the person advantage -

etsja intellectual toolkit which is the general for defined

Sets of people. This cogitative toolkit is formed under

By influence of set of various factors also it is defined ponjati -

I eat "mentality" 280. «The mentality is system of ways otseniva -

nija »281. Therefore the understanding of the stable right can differ in is dependent -

sti from features of mentality of this or that society.

Taking into account the Russian mentality it is possible to approve, that the stable

The right is the right steady which can be invariable as javle -

nie, but it is dynamical under the maintenance. Stability is a category,

Providing movement.

Category "stability" in Russian cultural (mental) tradi -

tsijah allocates the right with certain positive characteristics, about -

ladaja with which, it can be considered as the stable.

Merits stability has been allocated by the Russian

Society as a result of comparison and an estimation as the phenomena corresponding it

To requirements. Comprehension of stability as the useful has led to that,

That it became почитаемой282.

The positive maintenance of this category consists that it

279 Platon. The politician. – with. 51.

280 SHevjakov, M.J.Ukaz. soch. – with. 13.

281 In the same place. – with. 54.

282 Bacon, F.Aforizmy about interpretation of the nature and a kingdom of the person. – with. 38.

120

The perception, and, hence, and the maintenance is connected with equilibrium order.

The order establishment is an essence of the right. Possessing the characteristic of hundred -

bilnosti, it is right really establishes the balanced order, which

Instal in people confidence in today's and especially in tomorrow. This

The confidence is formed by definiteness, predreshennostju, accountably -

stju and kalkuliruemostju the future legal events: acceptance new zako -

It is new, their interpretation, application of rules of law, consequences from the direct

Their realisations. At the stable right a society, leaning against last experience,

Estimating the present, has possibility to "feel" expected in the future.

As the guarantor of execution of these expectations the state in the person acts konkret -

nyh officials or the state bodies.

Finally the stable right reduces fear before the future,

Resists to chaos in public relations, including in shown in

Them legislative and pravoprimenitelnoj activity. And, on the contrary, a cart -

mozhnost to lose stability leads to formation in a feeling society

Uncertainty and fear.

On this basis it is impossible to agree with O.A.Stepanova's opinion, races -

smatrivajushchego stability as the negative characteristic of the right. Before -

stavljaetsja, that the use in the negative plan of the term "stability" not -

Correctly, as owing to stability the right gets the positive

The qualitative characteristic.

Positive harakteristikistabilnogo pravadelajut its wished.

These characteristics define the properties of the right satisfying potrebno -

sti societies. Therefore it is possible to agree that «stability of the right» –

This desirable property of the right in democratic, a lawful state. That not

Less, it is necessary to recognise, that the stable right is wished in lju -

bom the state. Any state is interested in feeling formation

Stability in a society, including legal stability. However forms,

Methods of such formation depend on civilisation level.

121

Stability of the right is a category relative. As hundred -

bilnost – a category of the sensual world, feeling of stability of the right mo -

zhet to be generated competent state ideology. Therefore it

Can be inherent for a society of different public formations, instead of

Only to a society democratic, lawful states. So, for example, in

The USSR the majority of its population felt stability, that, a demon -

Disputably, it has been generated, the state ideology. This feeling ohva -

tyvalo and the rules of law, which maintenance did not change so often, as in

Modern Russia.

In the ideal mechanism it is represented, that stability legal jav -

lenija, expressed in stable rules of law, should establish hundred -

bilnye legal relations. Nevertheless, it is obvious, that stable relations,

Providing order, calmness, confidence of tomorrow, formi -

rujut an image of the stable right.

Thus, summing up, it is possible to make following definition of hundred -

bilnosti as categories.

Stability with reference to the right is it universal put -

telnaja a qualitative relative estimation an identical society in quality

Wished, reflecting ability to bring the contribution to an establishment obshchestven -

nogo an equilibrium order to which development is peculiar.

Nevertheless, it is necessary to consider, that the right – concept many-sided.

And its understanding in various foreshortenings attracts feature of display of hundred -

bilnosti. So, for example, A.K.Romanov pays attention, that the right can

To be presented as the social phenomenon and as certain practice a forehead -

Centuries. Thus he notices, that as the social phenomenon the right is sovokup -

nost the norms (rules) of behaviour formulated and established in obshche -

stve. As social practice the right are certain kinds social on -

122

Conducting the person in обществе283.

It is obvious, that the quoted author does distinctions between positive and

The right. Nevertheless, concept of a positive law also a neobottom -

znachno. As consequence, its stability is ambiguously defined.

The term "stability" can be applied to the right at the characteristic

It as social phenomenon, as positive law and as regulator obshche -

stvennyh relations.

Stability of the right as the phenomena. Stability of the right as legal javle -

nija it is provided with that the right is one of effective means, re -

gulirujushchih public relations in the world. It is obvious in postindustri -

alnom a society. Any of the states in the world does not exist without the right. Anybody

Cannot present the modern state without it. At the present stage

Developments of a society the right is an implementer state vla -

sti, the country satisfying the population. Stability of the right as the phenomena

It is provided with requirements of a modern society for ordering about -

shchestvennyh relations rules of law. In this context the right objectively not

Can be astable in a modern society.

Stability of the right as the phenomena a-category which means put -

telnuju quality standard by a right society, osoznanno necessary for

Orderings of public relations.

Hence, the right as the phenomenon can be considered as hundred -

bilnogo in the event that in a society does not raise its doubts neobhodi -

most.

Stability of the right as regulator of public relations. Stabil -

nost the rights as regulator, «the standard form of stabilisation of the public

Relations »284,« means of achievement of harmony »285,« public force,

283 Romanov, A.K.legal system of England: the manual. – 2 izd., ispr. – M: De -

lo, 2002. – With. 39 – 42.

284 General theory of state and law: the academic course: in 2 t. T. 2. – With. 42.

285Дмитриев, JU.A., Kazmin, I.F., Lazarev V.V. Ukaz. soch. – with. 92 – 93.

123

The stability directed on achievement »286 it is defined by preservation

Invariances of understanding of essence of the right, preservation of traditions in the legal

Regulation and realisation in nm the general principles of the right. Stability

The rights in the given aspect it is characterised by predictability of changes of the right and

Predictability pravoprimenitelnoj experts.

This characteristic of the right is the basic as concerns to

Essence of the right as a whole. At a public estimation of the right in quality stabil -

nogo it is possible to judge efficiency of the right in which any is interested

The state. Its achievement means an establishment of such law and order, koto -

ryj satisfies a society.

Stability of the right as means of an establishment stable obshchestven -

nyh relations is a category which means positive kachestven -

nuju the characteristic an identical society of the right providing predska -

zuemost its changes and results pravoprimenitelnoj experts, that is

mym forming the feeling of social safety and is confident - a society

sti in tomorrow.

From this follows, that the right as a regulator of public relations mo -

zhet to be considered as stable if in a society the feeling is formed on -

rjadka, installing confidence of tomorrow.

Stability of a positive law. At a positive law estimation in kache -

stve stable or astable as criterion it is possible to select if -

chestvo brought changes in standard legal acts. Such approach ste -

reotipen as dynamics of the law is easily defined by quantity bring -

myh in it of changes on months and-or years.

Such approach can seem justified before will be provede -

But comparative research. For example, in Russia, Tajikistan and the Peoples Republic of China in -

tensivnost changes of laws the different. In the Peoples Republic of China the laws accepted in 80th XXв.

Began to undergo the first serious changes only almost in 30 their years

286 Alexeys, S.S.theor. – with. 62; it Sobr. soch.: in 10 t. T. 6. – With. 49.

124

Realisations. In the Russian Federation – intensity of change of laws very high. Bases -

nye laws and codes change some times in a year for various reasons.

The legal technics of modification of laws in most cases

It is connected with modification of other laws. So, for example, in Criminal

The code of the Russian Federation in 2013 68 changes, 58 of have been brought to -

toryh are connected with modification of other laws, and of 2014 from 90 popra -

vok, 69 are connected with changes of other laws. In Republic Tajikistan for -

konodatelstvo undergoes gradual change. So, for example, to change -

nija the Criminal code, accepted in 1998 have been brought by thirty laws.

While in Russia for the purpose of change UK the Russian Federation only in 2013 was at -

njato 58 laws, and in 2014–80 laws.

Following stereotypic thinking, it is possible to draw a conclusion that zako -

nodatelstvo the Peoples Republic of China stable, and the Russian Federation – astable. However, on kolichestven -

nomu it is difficult to criterion to state an estimation to the legislation of Tajikistan (in sravne -

nii with the legislation of the Peoples Republic of China and the Russian Federation). Such difficulties put under doubts

Correctness of election of quantitative criterion of an estimation of the right as hundred -

bilnogo or astable.

As stability is an estimated category, also an estimation on -

zitivnogo the rights as the stable or astable it should be given

Society. As criteria of such estimation can be validity

(Reasonableness) and objective necessity of change standard the right -

vyh certificates that quantity of laws which take place to be in everyone races -

smatrivaemom a case.

Following such statement, it is impossible to agree with position S.S.

Alekseeva which considered often changing right in the revolutionary

The period as the right astable. During such times exists objective neob -

hodimost in the thought over change of the legislation.

On the basis of the above-stated stability of a positive law it is possible

To define as follows. It is a category which means polozhitel -

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nuju the qualitative characteristic an identical society of the right (its form and

Maintenances) as corresponding to the general legal principles, changes to -

torogo are proved and are defined objective public potrebnostja -

mi, promoting formation in a society of legal stereotypes, tradi -

tsy and customs.

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A source: LITVINOVA SVETLANA FEDOROVNA. TEORETIKO-EMPIRICAL RESEARCH OF THE NATURE OF THE STABLE RIGHT (On an example of the legislation of Russia, Tajikistan, the Peoples Republic of China). The dissertation on scientific degree competition Doctors of juridical science. Dushanbe – 2015. 2015

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