§ 1.1. Concept "abstract" both "concrete": philosophical and legal аспектні

Characteristic sign нормві the rights is its general and abstract character, distribution on a wide range of subjects and from not n HBix obstojatelvstv. Thus the rule of law is applied to perfect konkretnim to situations and concerning separate subjects.

The given display of dialectics of the rule of law causes to concretise its basic elements expressed in the form of abstraction, with a view of approach of the maintenance of norm to a concrete situation.

«It means that the life always appears more difficult those forms of the right which we establish. Rules of law not always are in time behind a real vital situation, not always they express that really exists at a stage of action of the given norm» [1].

The concrete definition as necessary process peculiar to the right demands the explanation: the reasons which have caused its occurrence, disclosing of the mechanism of action with a view of more exact and correct application in the right. For realisation of objects in view research of the methodological basis of the given process is necessary.

The scientists investigating matters of law, marked communication of categories of philosophy and the right with reference to a concrete definition. «As a methodological basis for development of such concept - a basis providing its unequivocal interpretation in jurisprudence, -"sheaves"of philosophical categories“ the general - especial - individual "and" abstract - concrete ”, and also caused by dialectics of these categories the logic law of the return relation between volume and the concept maintenance are capable to serve. The concept"concrete"gets sense

Only in a combination (protivopolozhenii) with concept "abstract" »[2].

Presence of the given relation assumes, that general provisions during application are translated into language of more concrete statements which are not raising the doubts in the relevancy of applied norm to the given situation, coming under to the legal permission [3].

In the course of scientific knowledge various methods among which it is possible to name general philosophical, or universal, a method are used; general scientific methods; methods of private sciences. The method represents an initial category of methodology. The important place in knowledge of legal essence is occupied with group of general scientific methods by means of which it is possible to observe philosophy and right interaction. With reference to the right knowledge methods are defined as receptions and ways of studying of the legal validity.

Thus the general philosophical method reveals through the general scientific methods of knowledge characterising knowledge of all sciences.

The basis of a philosophical method is constituted by laws of knowledge of the surrounding validity and dialectics laws in which communication of studied categories and the phenomena is reflected.

As the method of philosophical dialectics which reveals through a method of an ascension from simple to difficult, from abstract to the concrete is peculiar to a science of public theory of law. According to this method the knowledge is carried out in two stages. At the first stage of knowledge the object is perceived as a certain unseparable whole. On the second by means of the analysis the object is learnt by concrete parts.

Abstract it is understood as odnostoronnost knowledge, and concrete - as its completeness and pithiness. Thus, there is a movement from less substantial knowledge to more substantial.

Within the limits of the dialectic approach there is also an induction method, return named process, - following from concrete to abstract. However heuristic value has a method of an ascension from abstract to the concrete. The method interesting us concerns a gnoseological principle, to obshchemetodologicheskim to laws of knowledge, on which основвівается a general philosophical method. Deduction does возможнвім transition from most general ввіводов to otnositelvno private. A method of an ascension from abstract to concrete - universal reception of general-theoretical knowledge.

Essential property in a considered method are findings of the main communication of a studied subject (phenomenon) and opening of new communications which in all completeness would display essence of a subject or the phenomenon.

The modern dictionary on social studies makes following definition of concept "concrete" (from an armour. concretus - the letters, "condensed"): 1) a philosophical category which expresses unity and integrity of object in all variety of its communications and relations; 2) the subject. "Abstract" (from an armour. abstraction - "derivation") is defined as based on abstraction, abstract [4].

Aspects of categories abstract and concrete in a philosophical context became object of judgement at early stages of formation of representations about the right.

The method of an ascension from abstract to the concrete has received the development in works of representatives of German classical philosophy: from G.Gegel to K.Marx which have proved it obshchemetodologicheskoe value.

Movement methodology to concrete, a parity abstract and concrete are characteristic for all gegelevskoj philosophies as a whole. The main idea of creativity of Gegel - idea of freedom - is traced in the form of steps

Developments - from more abstract forms of the right to конкретнвіх. As marks V.S.Nersesjants: «Legal effect of step character of development of idea свободві consists in hierarchical sopodchinennosti these steps: бвітв more concrete in gegelevskoj to system of steps - means бвітв itself hundred jatelv it and is more true than the previous step, бвітв that right in which“ ”the right of more abstract step» [5] acts in film.

«The abstract right» - the philosopher to-right howl the term entered by Gegel for a designation of set of basic principles of sense of justice and law-making, previous the positive law, defining its formation, functioning and containing аспектві a positive law.

Thus, right development gets subordinatsionnyj character: a priority of the right concrete before abstraktnvsh. Thus basic value the form бвітия keeps abstract as nachalvnaja the rights.

K.Marx has brought the considerable contribution to working out of a method of an ascension from abstract to the concrete. In spite of the fact that this method is described as a political economy method, the philosopher in passing proves it obshchemetodologicheskoe value. «Concrete therefore it is concrete, that it is synthesis of many definitions, hence, the unity diverse» [6], - was written by K.Marx.

Differently, "concrete" K.Marx opens definition through a category of objective interrelation of all parties of a real subject. Thus "unity" is understood as difficult set of various forms of existence of the subject which unique combination is characteristic only for data, and not for any other, a subject.

Projecting a method in a science, it is necessary to notice, that any science, developing thought on a subject from the elementary form before reproduction

Difficult, concrete, whole, includes процессві divisions of object of knowledge into parts, fixing otdelvnyh the parties in concepts, them dalvnejshee specification, deepening and development, i.e. All that is covered by a method of an ascension from abstract to the concrete. Thus the given process is constant. Value has communications with practice. E. V.Ilenkov saw this communication so: «rather concrete it becomes only after will be deduced from the initial condition, broken off, spread out to parts by practical action of the person. Only after that will be“ srashcheno "back" [7].

K.Marx specified on dvuhetapnost the given method. Originally full representation about a subject breaks up to abstract concepts is a first stage of scientific knowledge. Thus the Soviet jurists differently estimated result of "disintegration". So, V.M.Syryh names turned out "abstraction" result of reflexion, knowledge essential, necessary, inherent separate, especial... »[8].

Other authors - J.A.Denisov and L.I.Spiridonov, - opposite, approve the return: «... The abstraction of the right does not open essence of the right» [9]. As the element of a practical life, carrying over of one experience on another for the purpose of an explanation considers abstraction E. V.Mareeva. In its opinion, scientific concepts cannot be generated on abstraction. Error is that fact, that scientific concepts are abstract, as are "distracted", torn off from the validity [10].

Passing in a plane of formation of concepts the legislator, we face the same error. Both the scientist, and the legislator are inclined to argue on an abstract science, about abstract norm as the higher display of theoretical knowledge, perfection of the standard instruction. That fact is thus lost sight, that the true should бвітв concrete for this purpose, чтобві бвітв to the applicable. The same is possible skazatv in the relation нормві the rights which is applicable when it is concrete. Thus property of concreteness at нормві the rights is absent. Ampere-second. Pigolkin wrote: «the Rule of law always represents the general rule, fixes the typical public relation. At the same time appointment of this нормві consists in that, чтобві regulirovatv отделвнвіе конкретнвіе relations between individuals, чтобві on the basis of this нормві razreshalisv конкретнвіе жизненнвіе situations» [11].

Thus, konkretnostv нормві it is realised by means of overcoming inherent in it abstraktnosti.

Iznachalvno right development went on a way of transition from concrete to the abstract. S.S.Alekseev has characterised this process so: «During твісячелетий названнвіе sides of human existence - zhiznv, freedom, sobstvennostv and their protection - were неразделимві and had the concrete, personified character causing kazualnyj a way of regulation of relations between people. Vital situations often enough repeat, and consequently in the course of dialogue of people habits gradually began to be developed, stereotypes which, on the one hand, provided free-hand, and with another - limited its reasonable and fair (from the point of view of the social majority or certain social force) to frameworks. The standard measure was established, i.e. The general already for any circle of people (a family, a sort, etc.) norm (rule)» [12].

Really driver's licence of a category got as a result of centuries-old "creation", legal designs became conventional. Abstract norms are considered as achievement of legal technics, as a progressive way of a formulation of instructions. Their occurrence is caused dejatelvnostvju the legislator, ввіраженной in the analysis and generalisation of situations, складвівающихся in a society, and a formulation most the general rule of the behaviour, covering regulation as it is possible bolvshe situations arising in a society. «Presence in legal system of general provisions of the right svidetelvstvuet about integrity of system, poskolvku general provisions carry out fundamentirujushchuju rolv in legal regulation of public relations, directly translating in a standard channel the legal beginnings and legal system principles» [13].

However such gain of legal character as abstraktnosti, existence predelvno general provisions, becomes a problem in the modern world. S.N.Bratusv has truly noticed: the dialectics of development of a society is that, that in process of degree increase obobshchennosti and obshcheobjazatelvnosti rules of law more and more zatrudnitelvnym in some cases stanovilosv exact and pravilvnoe their application [14].

Dejstvitelvno, zakonodatelvstvo abounds with the general provisions having abstract character. Such situation often generates occurrence of complexities at application of rules of law. In some cases misuse of right pravoprimenitelem turns out to be consequence regulations of public relations norms of the general character. Abstract character of rules of law generates occurrence of blanks and collisions in the right.

The concrete definition as process return to generalisation, specifies the maintenance of general provisions of the norms fixed in certificates, does them more well, more precisely. «It provides neskolvko possible variants of behaviour of the person which are fixed in konkretizatsionnoj to norm» [15].

The statement of philosophical and scientific representations about a method of an ascension from abstract to the concrete has the tselvju a substantiation of the importance of process of a concrete definition in the right about which will go speeches in dalvnejshem. It is obvious неразрвівная logic communications between the specified process and a philosophical method which is its methodological basis.

Concrete definition in theory of law rassmatrivalasv iskljuchitelvno as reception of legal technics. However the concrete definition has deep philosophical roots, BBixодит for frameworks of legal technics, gets property of legal systems.

The concrete definition of norms in the right can be considered as reception of legal technics for the purposes normotvorchestva and as the legal phenomenon providing process of construction of the legal system in whole or the separate branch.

The legal system is under construction on the analysis of norms, their logic ordering, division of norms by various criteria, including on a generality and concreteness of the maintenance for regulation of public relations. At grouping of norms in separate branches there is their division into the general and special of which the general are formed and special parts.

According to S.S.Alekseeva, sistemnost the rights are defined by necessity of specialisation of its norms, so-called "division of labour" between rules of law [16]. One of kinds of such specialisation, along with integration, according to the author, the concrete definition as detailed elaboration of the maintenance of standard regulation is.

Also existence of the general and concrete in the right confirms isolation in the legal system of principles as supervising ideas. The establishment of the general principles gives the chance to deduce from them more private consequences, both in a kind отделвнвіх norms, and during realisation and right application in конкретнвіх situations.

Thus, the right as abstraction develops thanking раскрвітию its properties, the parties, сущностнвіх elements in the form of the concrete. The concrete definition in this or that volume is inherent in legal regulation on различнвіх its levels.

In spite of the fact that the legal system and system zakonodatelvstva - неразрвівнвіе among themselves categories, at the same time they are characterised with about podchinenno stvju and zavisimostvju the last from the legal system as objectively formed system. However filling existing and allocation of new branches occurs thanks to escalating of a standard material, proceeding from requirements of practice for settlement of new relations of various spheres of a life of a society.

The concrete definition is the complex legal tool which is aimed at legal system ordering, its logic construction and, as result, effective realisation of the right. C other party, purposeful character of a concrete definition regarding perfection normotvorcheskoj activity reflects its practical applicability as reception of legal technics.

To legislation system in bolshej to degree it is peculiar

konkretizatsionnyj process whereas work on legislation perfection, its addition is led continuously.

The same as and for the legal system, for the legislation hierarchy of construction of its elements is characteristic: sources of law depending on their validity are built from certificates of the highest validity to certificates subordinate and subordinated. Thus feature of construction consists that more the general rules of law objectively require a concrete definition in subordinate normative acts without which in most cases it is impossible to realise many instructions which have been put in pawn in standard legal acts.

Besides the concrete definition of the law and other standard legal acts is necessary, when in the specified system the errors interfering appropriate realisation of the right are found out. In that case the concrete definition as reception can ispolvzovatvsja not tolvko normotvorcheskimi bodies, but also правоприменителвнвіми. Means pravopolozheny, carrying the binding character, the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation are brought by specifications and changes in the standard regulation demanding the updating, proceeding from practice of application of a legislative material.

Thus, the concrete definition nature in the legislation has dual character. First, it is objective internal process of construction of system of the legislation, caused by hierarchy of construction of sources of law, logicality and sequence of disclosing of norms depending on a validity of the source of law containing them. In other words, norms of the general order reveal in detailed norms of subordinate sources therefore there is their concrete definition.

Secondly, this external influence caused by certain circumstances. «Compulsory intervention» in this process in the right is required when rules are not observed, lacks during application the rights attracting infringement of a principle of legality and the law and order and liquidated by means of specifying standard legal acts are found out.

Thus, the concrete definition having in the basis transition from abstract to concrete, in the right is not simply mechanical, but purposeful creative process of specification of norms, proceeding from requirements of practice, with a view of perfection legal

The regulations, depending on factors of objective and subjective character.

The told allows to consider an investigated category in several values and to allocate a concrete definition as process of transition objectively existing in the law of master and servant from the general elements to private, the branch systems directed on construction, at preservation of communications and properties of integrity of system. The concrete definition gets other value at its action in the legislation system, causing construction and disclosing of sources of law, and also expressed in concrete definition application as reception of legal technics.

Concrete definition studying in regulation of the relations labour and directly connected with them will allow to define more deeply specificity of branch and institutes of the law of master and servant as the specified mechanism reflects a combination of legal means and branch methods, an order of the organisation of the concrete public relations regulated by the law of master and servant. It will allow flexibly and differentsirovanno to approach to the given public relations for the purpose of their appropriate regulation.

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A source: Glotova Irina Aleksandrovna. the CONCRETE DEFINITION of NORMS of the LAW OF MASTER AND SERVANT. The dissertation on competition of a scientific degree of the master of laws. Ekaterinburg -. 2015

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