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K.Llevellina's Antropologo-realistic approach

The American realist of the right Charles Nikerson Llevellin has generated the unique approach to understanding of the right, having combined in it and instrumentalism and functionalism elements.

Llevellin about the right as about operating institute.

Being still trained at Jelsky university, Llevellin has got under William Grema Samnera's influence, the author of "National customs» (1906), the known work devoted to social experts and beliefs and their influence both on a society as a whole, and on behaviour of individuals. Ideas Samnera promoted development of point of view Llevellina that the right is the social institute which is under the influence of surrounding culture.

Llevellin said that is right it is possible to understand differently. So, for the jurist (while the sociology has not got into this sphere) the right - first of all the craft and a trade, and also the arch of rules of law, for statesmen is one of aspects of a life of a society, the tool for management.

But the right is the much wider concept having uncountable number of sides.

For Llevellina the functional approach to the right which is reflected in its understanding of the right as institute is characteristic. For it the institute is the organised activity created on the basis of a trade or group of trades. The right institute in our society is extremely combined and consequently for successful functioning should lean against wide group of trades. It consists not only of the body of rules, grouped under concepts and penetrated by numerous principles, but also includes carefully developed techniques, such as precedent use. And over all to these there is an ideology with its far-reaching purposes and ideals which are meant more likely, than openly admit, but can constitute nevertheless influential enough part of institute of the right as a whole. Besides it there is a set of rigid and flexible rules of procedure. All these elements of institute of the right supervise activity of those whom Llevellin named «people of the right». It is powerful, integrating force. « "Instruction" and "principle", for example, to be a legal system part, should work in it, and it is possible only through people and their thinking. Rules of procedure, besides, are skeleton of legal system. And still they not a right part if them constantly do not compare to the standard norms and ideals. People are vital force of legal system... ».

In the treatment of the right offered Llevellinom, it is possible to find out similarity to triple definition of the right of R.Paunda which, undoubtedly, has influenced its legal sights. Llevellin included in concept of the right not only norm and ideals. Recognising as one of its important constituting the body of laws, fixing concepts and principles, it paid special attention on such parts of the right, as: the generated technicians of "precedent" and "interpretation" who allow [165] to manipulate norms; ideologies and ideals; rules of procedure without which norms do not have life; the people who are not simply taking out the decisions, but conducted by ideas and ideals, i.e. representatives of legal trades. Such wide sight at the right, on Llevellinu, leads to occurrence of more effective, fair norms which are a part of the right.

That the institute carried out the functions, it should be operating and should correspond to requirements of a society.

The basic functions of institute of the right are, first, maintenance of a life of a society, its most existence, and secondly, an establishment

Justice, improvement of a life of a society. Thus criterion of an estimation of action of institute are actual results of its action which should be opened for research.

At the heart of operating institute of the right legal activity in which Llevellin saw following directions lays: elimination of breaches of law; «preventive orientation», i.e. reorientation of behaviour and expectations to avoid breaches of law; definition of structure, an order of functioning and powers of the state bodies; regulation of private legal activity of the private person and group; occurrence of new possibilities of achievement of the purposes by means of legal means, tools, experts. Legal activity carried out in these directions is capable to provide the law and order, to support unity and viability of a society. Thus it is important to find a golden mean between efficient control and realisation of desires and requirements of people. Here it is possible to draw an analogy with jurisprudence of interests of R.Paunda which saw a right problem in harmonisation state, social and private interests.

The anthropological approach. K.Llevellin has brought the serious contribution not only to formation of realistic school of the right, but also to development [166]

Sociology and right anthropology. Having continued Bronislava Malinovsky's ideas, being under impression of its works (first of all from work «the Crime and customs in a wild society», 1926), he has written in the co-authorship with the graduate of faculty of anthropology of Colombian university Adamsonom Hobelem work «the Way shajennov» (1941). It antropologopravovoe the research based on studying of a legal life of a tribe shajennov in which «the primitive right» is deeply opened, its things in common with the modern right are shown and theoretical workings out Llevellina in practice are effectively applied. Authors managed to illustrate, that certain formulated ideal norms of behaviour and customs can seriously differ from norms real. It is possible to tell, that this work Llevellin as a matter of fact has inhaled realism in anthropology.

«The way shajennov» is unique work, a rare example of the book simultaneously and entertaining and deep under the maintenance, describing procedure of settlement of disputes in a tribe of the American Indians. Admiring Malinovsky's with researches, Llevellin regretted, that «the author has not shown any sign of existence of any judicial device, any sign obvious" legal "compulsion from the leader of the tribe, any procedure, except for formation of public opinion against guilty by open condemnation and ceremonial suicide of counteraction of a situation guilty of quality when the guilty considers inevitable as punishment excessive». Analyzing further

Malinovsky's works, Llevellin has come to conclusion, that the insufficient attention to details, that really occurred at occurrence of disputes was the most important omission of the English ethnographer and the sociologist. Practice has been described very much by the general terms and only 6 real cases have been illustrated in its work. Thus it is difficult to define, what [167] disputes arose most often who has been involved in process of their settlement and as the consent was reached.

When Llevellin has plunged into studying of the specified questions, to it the offer on cooperation with the promising student - the graduate of faculty of anthropology of the Colombian university A.Hobelem, the interested «the primitive right» has arrived. Before Hobelem there was a problem. He wished to be engaged in studying of a legal life of Indians-komanchej, but more skilled anthropologists have expressed the scepticism concerning viability of this project mainly on the ground that at komanchej ostensibly there was no right. At that time studying of "the primitive right» was in embryo. The method which later Llevellin and Hobel named «the ideological approach» prevailed; interrogation of informants and questions of such type was typical: «What at you corrected apropos...?» And «What result, when.?» Or «And that will occur, if.?» . Except common faults and the traps concluded in this method, it is especially inefficient in application to those people which have no accurately formulated institutes. Other Indians living on plains concerned such people not only komanchi, but also. In 1949 doctor Ralf Linton, the leading expert on komancham, has noticed: «Different cultures show a huge difference in registration of norms of a life. My experience which has been saved up at Polynesians and komanchej, confirms it. Polynesians can explain practically instantly what should be appropriate behaviour in all situations while komanchi a similar question instantly answer:” Depending on the circumstances ”. They sincerely consider behaviour as area of unlimited individual freedom of choice though if to consider a number of examples of behaviour it is possible to find out high enough degree of uniformity» [168].

Thus, except a defining question, whether «the primitive right» "right" literally words could be called, there were also a practical methodological problem of that finding-out what were if were in general, standard norms of a life in American Indian tribes.

Hobel has presented specified problem Llevellinu at their first meeting in June, 1933 Llevellin immediately has planned methods which it will use in research of legal processes of a tribe of the American Indians-komanchej. It became head Hobelja at a writing of the thesis for a doctor's degree which has been successfully finished in 1934 In 1935 after less successful project devoted shoshonam, Hobel has assumed, that studying of legal relations of Indians-shajennov can appear more fruitful. More than centuries shajenny led a heavy nomadic life on Great Plains to the West from the river Mississipi. As object of their research have chosen for the reason, that at them the developed institutes of compulsion in the form of the organised formations operated, and it assumed, that ways of settling of conflicts and order protection have been better developed at shajennov, than at shoshonov.

Hobel has begun data gathering among northern shajennov in the summer of 1935, and in the end of summer Llevellin and his wife - economist Emma Korstvet - have arrived to it (in Lejm Dir in Montana) for ten days. It was first operational experience Llevellina among the American Indians and the unique period spent by it among shajennov. This fact specifies in work clear split on creation «Ways shajennov». Hobel has collected almost all information, all practical material and has written a draught copy of an average part of the book which represents basically descriptions of a life of Indians and concrete situations. Llevellin has developed a theoretical part of research which has laid down in a basis of interpretation of the received information. Formation of the general theoretical and pravovedcheskoj book matrixes became its merit.

Visit Llevellina to shajennam was short, but extremely fruitful, for ten days it has come into contact to two most perspective informants Stampom Hornom and Kalfom Vumanom. In the summer of 1936 Hobel has again visited at Indians.

The long period of considering, interpretation, sketches and copying preceded the publication «Ways shajennov» in 1941 the End result both on style, and on expressiveness bears on itself a doubtless sign of authorship Llevellina. Its language more strict, than usually, but is full of energy and enthusiasm. After reading there is a bright impression about shajennah. This work not only has in a new fashion shined a life of extremely interesting American Indian tribe, but also became a major landmark in jurisprudence development.

First, in it the first full formulation and application of a method of studying of the primitive right contains. Secondly, it is an outstanding example of cooperation of the lawyer and the anthropologist. Thirdly, shajenny are presented as an example of the so-called "primitive" people ingeniously regulating social conflicts. Fourthly, «the way shajennov» is a first step in development of legal representations Llevellina.

So, doubtless merit Llevellina consists that it has shown necessity of qualitative methods of research along with the quantitative. Still Max Veber has proclaimed, that the union of these methods is favourable and inevitable for the sociology future.

Studying the primitive law shajennov, Llevellin and Hobel found out all details of a life in conversations lasting many hours with Indians, during long everyday supervision over their life. In this case deepening of researchers in personal details has transformed shajennov not simply into respondents, and in informants. The purpose consisted not in interrogating as much as possible people, having prepared as small as possible questions, and in setting to all of them questions which appeared during research. Here the person of the researcher was important, its ability to gain trust of an informant to arrange it to frankness.

Let's designate a number of features of the anthropological approach formulated Llevellinym and reflected in «Ways shajennov»:

1. The tribe life was investigated on the basis of subjective certificates of Indians. «The way shajennov» is written in the ethnographic present, and describes the period of 1820-1880th, i.e. data gathering has been spent more than fifty years later. The cases described by authors are based first of all on hearings, memoirs, traditions.

2. For researchers value atypical individual experience, personal biographies of members of a tribe had not only typical and obshchestvennoznachimye events, and. Considerable efforts on recheck of versions, according to their reliability have been thus undertaken by various ways.

3. As primary data in research text records of interview, supervision, subjective opinions of people acted.

4. Feelings, sights, perception, everyday social experts shajennov, procedures of the resolution of disputes in a tribe became a subject of studying Llevellina and Hobelja local community.

5. Questions of such type were basic not: «What rule at you, in a case...?», «That will occur, if...?», and questions on how there was a settlement of conflicts arising in a tribe what sense of those or other actions of participants of the conflict was. Paramount value had not presence of certain norm, and understanding of a mentality shajennov at collision of interests and the resolution of disputes.

6. Teoretiko-methodological orientation of research has been directed on search of the facts, the reasons of social phenomena with the account not only features of a subjective condition of individuals, but also specificity of ability to live of the tribe, representations existing in it about justice.

7. Llevellin was against the adaptation of the facts to the theory. Feature of its method consisted that the facts are primary, the theory should be adapted for the facts.

8. Theories used in research differed not formalized, descriptive character. Authors did not try to limit research by rigid frameworks.

9. Basic methods acted as interview in shape

Informal friendly conversation in confidential conditions,

The qualitative analysis of documents.

10. Llevellin was very cautious in a formulation of conclusions, did not try to present accurately norm, behaviour rules, legal postulates shajennov. Their maintenance penetrates work, but on the first place - process, procedure. The researcher should, according to Llevellina, to abstract from the sights which have settled in jurisprudence and representations about the right and rules of law, the hypothesis should be put forward «on an exit», she is born on a course of research and can vary in the course of data gathering.

11. The role of the researcher is great, as it acts as the active tool of knowledge.

12. Results of researches are presented in the form of not structured text materials containing estimated statements shajennov about practice of the life.

Thus, feature of research consisted that authors tried to comprehend attitudes shajennov and meaning of the life, were among Indians, analyzed a stream of various field materials, flexibly built data gathering process, not adhering to rigidly set program, critically reinterpreted a situation, distinguishing real contradictions and discrepancies, comparing a situation with theoretical representations.

«The way shajennov» is so penetrated by enthusiasm of authors, that it should grasp. Inevitably there is a sensation of the legal genius shajennov, the beauty of legal methods opens. And despite some exaggeration of uniqueness and exclusiveness shajennov at elimination of internal disagreements by them, it is impossible to disagree with

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Researchers in existence of some advantages of a legal life of a tribe. To achievements shajennov quite obosnovanno have been carried such, as blood feud abolition, restriction of the reference to supernatural forces for the purpose of an establishment of true and moderated, but an effective utilisation of legal fiction.

Characteristic line of followers of the Roman Law, under statement Llevellina, the aspiration to fast, courageous, skilful and faultless decision-making which will correspond both justice, and a policy, and the right while at shajennov there was a tradition of education of intuition for the creative resolution of conflicts is. Thus it was possible to them, according to the author, impossible: to consiliate inconsistent requirements of the right and justice.

«The right according to the destination is means of achievement practically the same results, as feeling of"justice". When in these two concepts there are distinctions, such tool as the right ceases to be reasonable. And as shows a legal way shajennov, clear to everyone, high level of understanding of clearness of the future decision on the business, felt even both parties of litigation in the heat of dispute, can be reached simple by, without observance of rigid legal procedures, and it conflicts to concept of justice of new generation. The legal way shajennov shows still something. It shows, that the developed ritual together with a quantity of extremely clear rules and compulsory procedures can be regulated flexibly at a good situation, proceeding from necessity and not endowing feeling of confidence and standard

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The form ».

Merit shajennov that they flexibly applied the standard norms to an establishment of justice and supposed some withdrawal from them. So, for search of mother who have made abortion, survey of all women has been arranged

Tribe which have forced to bare a breast for public detection of signs of a lactation. Thus it is possible to concern critically to what in the cases described in work was fair, however it is impossible to disagree that methods of elimination of disagreements in the given American Indian community were effective also it it was reached thanking their informal approach to decision-making.

Llevellin in «Ways shajennov» has characterised two methods of research of the right. It is a so-called ideological method and a fact method.

Feature of an ideological method consists that he leans against the norms expressing imagined ideal models of behaviour with which the behaviour real corresponds. The accent thus becomes on representations of people about the sample, an ideal. Llevellin names three minuses of this method for studying of the primitive right.

1. During research scientists have faced that it is difficult to Indians to think abstractly, «in language of laws», to apply general provisions to the real facts.

2. The laconic statement of rules cannot explain sufficiently their role in the course of decision-making in dispute. Ascertaining of presence of certain norms in a separation from procedure leads to error, to a wrong estimation of the right and the legal phenomena. Besides, conflicts are often resolved not according to the concrete standard norms. It as has truly noticed Llevellin, is characteristic not only for primitive societies.

3. The given method ignores «legal uncertainty» and existence of discrepancy of rules of behaviour.

In this case Llevellina and Hobelja it is possible to name followers of British writer Richard Barton and British culturologist Bronislava Malinovsky who in the researches leant against long direct supervision of real behaviour and expressed sensible scepticism in relation to general provisions. «Norms exist, but

They are buried in rich deposits of the facts »[169 [170] [171]. Authors« Ways shajennov »appreciated these works, but considered their incomplete for two reasons: first, the behaviour description was too generalised and because of insufficient quantity of details did not give a full real picture. Secondly, they concentrated on the right, ignoring procedural aspects:« If the right as for a long time consider studying Anglo-American jurisprudence, is hidden in a procedure crack, obviously, much is missed in independent, too emotional characteristic of the descriptive approach ».

Considerable contribution Llevellina to anthropology consists that it managed to apply the tool eliminating lacks of an ideological method. The method of the fact which consisted in the detailed analysis of real conflicts became that.

The fact method provided detailed studying of processes of settlement of real disputes. That has occurred, that each participant has made for the conflict occurrence, what measures and by whom have been undertaken for its permission, an end result, the argument making the decision, decision influence on both parties, on the future conflicts and for all life of community - all it should be deeply analysed. «The situation cannot be let out from under the control, it is not becomes clear yet till the end of its influence on whole». The interpretation stated in «Ways shajennov»

On more than three hundred pages, 53 examples are based mainly on treatment only.

Advantages of a method of the fact have been named also:

1. The importance of norms can be understood, only having studied real affairs. Through research of disputes it is possible to show, how the established norms are really applied. It is more indicative, than a simple statement of norms.

2. The given method has allowed to solve a problem of refusal or inability of informants accurately to formulate norms.

3. The fact method has given the chance to check up coincidence or divergence degree between existing norms and results of processes of settlement of disputes.

4. By means of research of conflicts it is possible to reveal relations between "law" of group and "podzakonom" each subgroup.

5. In a crisis situation, in the presence of the sharp conflict it is possible to see real culture of a society.

6. And at last, studying of disputes is important as allows to open a legal life of a society full.

«Dispute is a question of doubt or the misconduct moment, or the moment when the rebellious person chooses new ways of action or a management or when old customs are checked in new unexpected circumstances. The question at issue establishes, breaks, deforms or resolutely creates a new rule, institute, authority. But not with all disputes so business is. There are also small scandals, routine quarrels, both at the primitive people, and at the modern. And at all it if there is such part of a life of a society where contradictions in culture where it is possible to experience and see other belief where new models of the power and ancient tendencies of safety of the person, religion, a policy, disputable sights at justice openly intertwine are shown, is a part of a life will prove in case of the conflict and order infringement. But not only development of the novel and a consequence old, but also influence, sharp display of other vital aspects of culture obviously will be visible at severe test by the conflict »179.

It is possible to carry to pluses of a method of the fact and that he helps to see distinction between the facts and their interpretation, to explain the general concept on an example of the private.

The criticism can subject following moments of antropologo-legal research Llevellina and Hobelja. First, to draw the most true conclusions, it is necessary to study those disputes and conflicts which are really significant, reflect features of culture and are typical enough. Small scandals, routine quarrels cannot give an exact picture of the validity. Secondly, the fact method will be more effective, if he leans against direct supervision, instead of on hearings and descriptions of bygone affairs. Authors «Ways shajennov» realised it and undertook efforts for recheck of the primary information. Besides, messages of informants, their perception of the certain facts transferred in language of their concepts, are important for understanding of institutes of a society and a mentality of the people to which these institutes belong. Studying of myths and legends, and also results of interrogation and record of the discussions conducted during processes of settlement of conflicts will be effective. And while informants consider myths and legends significant, they will serve as the basic sources for understanding of concepts, values, positions and a mentality of informants.

Opponents of a method of the fact can notice, that in «Ways shajennov» the chapters devoted to murder, marriage, the property and inheritance, do not give such systematised and detailed information what could be received at use of an ideological method. From here there can be a temptation to draw a conclusion, that the fact method is intended for studying of legal processes, instead of rules of law. However such conclusion is unreasonable. The concrete illustration of a legal method shaejnnov, instead of the exhaustive description of themes was the main function of the mentioned heads. The primary goal of authors was to analyse, as the tribe over prevention and the decision of conflicts, sometimes addressing to other aspects of its culture worked. From this far does not follow, that Llevellin and Hobel denied presence of the legal

Norms at shajennov or that by means of a fact method it is impossible to open norms of a certain tribe.

Itself «the Way shajennov» contains, for example, a cautious statement of the law on murder, but it is preceded by the remark, that «this more modern and osoznanno is more accurate the formulated statement of norms as they have proved in operation, in the fixed cases and opinions» 180. Under all book there are examples of a statement of laws shajennov. Itself Hobel in later work has tried to resort to an ideological method. In a number of cultures he searched for legal postulates as which understood the dominating criteria supervising and limiting mechanisms, created and really operating in stable social group. In its opinion, «any society, primitive or civilised, having legal system, has also the legal postulates. Thus, following Hobelju, it is possible to formulate legal system postulates shajennov.

Postulate 1. The person is subordinated to supernatural forces and spiritual sushchnostjam, magnanimous by the nature.

Consequence 1. The individual success and well-being of a tribe is promoted by the mercy help to the supernatural.

Postulate 2. Murder shajenna the fellow tribesman profanes both idols of a tribe, and the murderer.

Consequence 1. Failure will pursue a tribe while its idols will not be cleared.

Consequence 2. The murderer should be for a while isolated from a society.

Consequence 3. It is necessary to avoid rough behaviour which can lead to murder.

Consequence 4. Murder of the enemy near to idols of a tribe - a hostile step in relation to supernatural forces.

Postulate 3. The power of council of a tribe is given by supernatural forces and it above all other elements of a society.

Postulate 4. The person is important, to it allow also it induce to express the potential possibilities with the fullest freedom compatible to group existence, but at the same time the person submits to group and its first duty - maintenance of well-being of a tribe.

Consequence 1. Rehabilitation of the rebellious person after punishment [172] is Extremely important.

It would be interesting to know, that thought Llevellin of legal postulates shajennov, formulated Hobelem. However that in «ways shajennov» they were not mentioned, except for the law on murder, is indicative and testifies to its care, unwillingness of accurate definition of rules of law, legal principles and postulates shajennov. Llevellin was not categorical in the antidogmatism and, probably, would agree with opinion Hobelja, that each legal system has accurately formulated and given the shape kvazikodeksa postulates.

The anthropological method of studying of right Llevellina, based on knowledge of procedure, an order of the resolution of disputes, ways of harmonisation of interests of a society, became the serious contribution to jurisprudence development. From beginning HH century during researches of the primitive, breeding right to lawyers seldom was possible to avoid a formalism, at the same time anthropologists did not tear off "doctrine" from "process", applying, as a matter of fact, approach Llevellina which it is possible to name antropologo-realistic. The American scientist has introduced a realistic method in research not only modern, but also the primitive right.

Thus, within the limits of the American sotsiologo-school of law it is possible to allocate tool, functional, istoriko-realistic, antropologo-realistic approaches to the right. A.K.Kulikov specified that «realists understood the right as set of descriptive generalisations about

Official behaviour, or about behaviour of judges ». In our opinion, such

The statement is a little superficial, considering a variety of approaches scientific (theorists and experts simultaneously). That general, that consolidates sights of the American authors at the right, namely the aspiration to see behind the right of its purpose and a problem, testifies about pragmatistskom the approach to the right. The right is main means of the social control in the state which primary goal is integration, rallying of a society and harmonisation of interests in a society, and it achieves it by means of regulation of public relations and protection of the rights, freedom and legitimate interests of subjects of law during realisation of rules of law. And further, according to scientists, it is necessary to optimise formation of rules of law and their real action. In search of these ways of optimisation and rationalisation the American sociologists and realists of the right also were engaged. [173]

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A source: ADYGEZALOVA GJULNAZ ELDAROVNA. SOCIOLOGICAL JURISPRUDENCE of the USA In XX V: DOCTRINE FORMATION, DEVELOPMENT And LAW and order PERFECTION. The dissertation on competition of a scientific degree of the doctor of juridical science. Krasnodar - 2017. 2017

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