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THE CONCLUSION


The complex research of such important and many-sided phenomenon carried out the present work as legal hermeneutics, problems of its formation and development in a domestic teoretiko-legal and branch science allows to come to certain generalisations and conclusions.

Questions of legal hermeneutics and separate hermeneutic aspects of understanding, interpretation and right application are the most urgent problems of modern jurisprudence. The analysis of works of the end XX – the XXI-st century beginnings on the specified problems, allows to note more and more increasing scientific interest to problems of legal hermeneutics. However, despite considerable number of the works devoted to the given problematics, and presence in them of the separate general moments on many questions of the hermeneutic doctrine of any unity of sights to establish it is impossible. Recognising as a whole an urgency and necessity of the hermeneutic approach to the right, modern domestic researchers of legal hermeneutics have no uniform approach to definition of concept, the status, structure of legal hermeneutics etc. So, for example, undertaking attempts to define the status of legal hermeneutics domestic scientists see in it and a concrete method of interpretation of the legal validity [408], and a special methodological direction [409], and even integrating type pravoponimanija [410].
The last as it is possible to assume, speaks that interpretation, the understanding and interpretation of sense of the text is the multidimensional problem, allowing to use for its decision the discrimination caused, in turn, by set of factors and conditions, including social, both political, and world outlook character. That is why attempts to justify the "narrow" approach to a problem, as well as the "wide" approach, or any other, take place to be and should exist in the future.
At the same time, the concepts developed to the present time and approaches of domestic authors allow to say that at the development present stage there is a process of formation of a new, actively developing direction of jurisprudence to the tendency to formation new integrativnoj concepts hermeneutic pravoponimanija. Such type pravoponimanija as its representatives consider, is obliged to give complete representation about the right, having overcome limitation of sociological, historical, legal and other approaches to it. By means of hermeneutic ways begins possible «to adjust individual and general, personal and social, irrational and rational», and in it and the mission of legal thinking [411] consists.
The legal hermeneutics, tending to registration in the doctrine, in our opinion, are at a stage of formation of a logiko-theoretical basis, conceptually-kategorialnogo the device of the doctrine and in some cases the basic program positions of the doctrine.
Characterising separate stages of development of the hermeneutic doctrine, it is necessary to notice, that already since antiquity the hermeneutics are understood as the practical art, which purpose is finding-out of sense of any concrete text (sacral, literary, the law text), by the period of the Middle Ages the hermeneutics turn to art of interpretation of sacred texts.
The period of rapid development of hermeneutic ideas is necessary for XVI century. From the end of XVI century and till the end of XVIIIвека working out of theories of interpretation occupies thinkers to a lesser degree.
Features of rules of interpretation of the legal texts, developed till XVI century, in a legal hermeneutic direction were showed in their especially practical character. At the given stage of the development free interpretation develops into distortion of the text and sense of the interpreted law. Any use of rules of interpretation leads to that the hermeneutics turn to a science of modernisation of dogmas of the Roman Law, a science about the adaptation of the Roman norms to the European validity. By XVIII century the legal hermeneutics discredited itself, that has been connected with changes in social and economic sphere in the Western Europe, and also with change of a role and value of regulatory legal acts both among other sources of law, and as a regulator of new public relations of bourgeois type.
The further development of hermeneutic tradition throughout XIX - the XX-th centuries in various degree is based on problems and the questions lifted by F.Shlejermaherom: the status of hermeneutics, border and understanding possibility, mechanisms and understanding ways, result of understanding, etc.
After F.Shlejermaherom, hermeneutics questions are considered by the German philosopher and the historian V.Diltej and enters polemic with it. V.Diltej considers F.Shlejermahera's "universal" hermeneutics as insufficiently historical and too narrow from the point of view of its subject [412]. On V.Dilteja's plan, the hermeneutics should not be limited to the status of a method of understanding of written texts, and should become an interpretation and understanding method in general. At the same time, in V.Diltej's many questions directly inherits F.Shlejermahera's to hermeneutic ideas. As a result of rapid development interest to problems of legal hermeneutics repeatedly increases in XIX century of the European right in the German jurisprudence, it is developed as a doctrine part about principles and rules of development and application of legislative norms. In connection with special influence of German historical school of the right on the Russian legislation and jurists, similarity in a certain measure of social and economic development of both countries in the beginning of XIX century, achievement of German philosophy and jurisprudence of XIX century have served as an impulse to discussion of necessity of working out of the theory of legal hermeneutics in Russia.
The legal hermeneutics as a direction of the Russian jurisprudence are not specifically new phenomenon of an epoch of a postmodern. Ideas of legal hermeneutics find the reflexion in domestic jurisprudence already from the middle of XIX century. It is represented, that similar models and approaches to interpretation of the legal texts, arising in the different periods of time, allow to allocate a conditional periodization of history of occurrence and development of legal hermeneutics in Russia, designating in it following stages: Legal hermeneutics in the Russian pre-revolutionary jurisprudence; Problems of legal hermeneutics in works of the Soviet scientists; Legal hermeneutics at the present stage of development of the Russian jurisprudence (last decades XX – the XXI-st century beginning).
Characterising a stage of formation of ideas of legal hermeneutics in the Russian jurisprudence of the middle XIX – the XX-th century beginnings, it is necessary to note a number of the circumstances which have affected its occurrence and development. First of all, special influence on development of Russian jurisprudence during the given period was rendered by Peter I reforms. Besides, as a result of a number of historical, economic and cultural features of Russia the German historical school of the right has made exclusive impact on development of Russian jurisprudence and the Russian legislation.
Increasing in Germany from end XVIIIвека scientific interest to problems of legal hermeneutics results in XIXвеке to that ideas of legal hermeneutics actively get into Russia in system of the specialised juridical education and the problematics of understanding, interpretation and right application is considerably staticized. Legal hermeneutics as a teaching subject, it is similar to curricula of German universities, joins in curricula of the Russian imperial universities thanks to what already from the middle of XIX century in works of domestic jurists at research of questions of understanding, interpretation and right applications are used instructions on rules of legal hermeneutics. Further since 70th years of XIX century theoretical working out of a subject of legal hermeneutics as independent science begins, attempts to systematise its rule are undertaken. Nevertheless, to speak about any generality of sights and about a uniform logiko-theoretical basis of legal hermeneutics during the given period it is not necessary yet.
On the further development of legal hermeneutics essential influence has rendered dynamical development of socioeconomic relations of the end of XIX century. At the given stage all increasing backlog of the legislation from real public relations leads to that in western, and then and in domestic jurisprudence there are the separate opinions denying necessity of existence of legal hermeneutics and any rules of interpretation.
One of representatives of such approach denying necessity of the further working out, it is possible to name N.A.Gredeskula. Owing to an insufficient level of development of hermeneutic methodology it denies necessity of the further working out of legal hermeneutics. However, despite formal refusal of that, in the work «To the doctrine about right realisation» N.A.Gredeskul makes an attempt to develop the articles, intended for «recognition of the maintenance of the right». Postulates allocated with it on «intellectual process» as a whole are conformable to ideas of modern legal hermeneutics and contain practically all its elements. In process of "recognition of the maintenance of the right» N.A.Gredeskul allocates such consecutive elements as understanding, interpretation and application of rules of law. Nevertheless, the described N.A.Gredeskulom intellectual process is represented to them in a linear kind: Understanding – interpretation – application, without a principle of a hermeneutic circle (spiral).
The second approach as which developer E.V.Vaskovsky acts, proves necessity of the further working out of legal hermeneutics. The legal hermeneutics represent special research of rational, scientific level of methodology in which frameworks the legal hermeneutics are a priority direction of legal thought. Its further working out, theoretical judgement, construction and classification of scientific methods of understanding, interpretation and application of the rules of law based on the general principles of philosophical hermeneutics, admits to E.V.Vaskovsky the major direction of Russian jurisprudence. In structure of the doctrine of E.V.Vaskovskogo the elements corresponding to structure of modern legal hermeneutics also are allocated. Thus interpretatsionnyj process is represented to them, unlike N.A.Gredeskula, not linearly, and taking into account a principle of a hermeneutic circle (spiral).
Thus, it is possible to establish, that in domestic jurisprudence theoretical and methodological bases for the further development of the legal doctrine about legal hermeneutics during the Soviet and Post-Soviet period have been put in pawn.
Further, characterising sights at the legal hermeneutics, expressed in works of the Soviet scientists, it is necessary to designate following circumstances. Since 1917 process of growth of interest to a hermeneutic problematics of legal texts in Russia has been interrupted by the social cataclysms which have entailed essential transformations of public outlook and legal ideology. Questions of legal hermeneutics have lost the scientific and practical value in connection with cancellation before laws in force and the statement as the basic source of law of "revolutionary (socialist) sense of justice». Subsequently, with increase in a role of regulatory legal acts as sources of law, courts of justice have received powers of law-making, freedom of application of the legal analogy and even analogy of the right. Priority observance «revolutionary sense of justice» and an expediency principle becomes a major principle of understanding and way of interpretation of the right, judiciary practice and revolutionary law-making of this time.
During the period from the end 40 for 80th of the XX-th century, in connection with expansion after the Great Patriotic War of system of the juridical education, essential changes of the legislation in 1958–1961гг. (Cancellation of a principle of analogy in criminal law, the retroactive effect of the law, a principle of objective imputation, etc.), in the Soviet legal literature despite formal refusal of legal hermeneutics scientific interest to questions of interpretation and application of the Soviet right considerably quickens. There is a considerable number of the works devoted to separate questions of a hermeneutic problematics of legal texts. At the same time by consideration of problems of understanding, interpretation and application of the Soviet rules of law the legal hermeneutics developed by Russian pre-revolutionary jurisprudence as the complex of understanding, interpretation and application of legal texts is not considered and even is directly denied as bourgeois [413].
During the specified period questions of understanding, interpretation and application of the Soviet rules of law receive theoretical judgement taking into account the Marxist-Leninist theory of knowledge of N.N.Voplenko, P.E.Nedbajlo, A.S.Shljapochnikova, A.S.Pigolkina, A.F.Cherdantseva's works.
The concept and structure of understanding and interpretation of rules of law are developed with reference to the Soviet conditions, ways of interpretation are investigated, powers of subjects of interpretation and other pressing questions are analyzed. Later, in I.N.Grjazina's work, the western approaches to interpretation of the legal phenomena are analyzed.
However specified above research mainly were based on ideological approaches to separate questions of legal hermeneutics, on rigid "methodology" and in advance set results. The hermeneutic approach to process of understanding, interpretation and application of rules of law is perceived during this period as alien to the Soviet society and reflexion in the Soviet legal science does not find. Nevertheless, despite formal refusal of the legal hermeneutics, separate elements of legal hermeneutics receive the development in the Soviet theory of law, though in various degree.
Later in separate works there is a gradual formation of other scientific approaches search essentially other world outlook sight at interpretation of the legal phenomena from the point of view of differentiation of concepts "right" and "law" became which purpose, however and these works practically up to the end should correspond 80th years to bases of Marxist dialectics and a historical materialism.
The further development of ideas of legal hermeneutics in Russia have essentially affected change during the Post-Soviet period of the form of the Russian state and the change which has occurred in the Russian jurisprudence of scientific paradigms. In domestic legal science there is a reconsideration of approaches to a legal reality, the statement of a principle of ideological pluralism and multi-variant approach pravoponimanija. In the created conditions of idea of the legal hermeneutics, received development in domestic legal science during the pre-revolutionary period, again find the urgency.
Besides other, revival of interest to the doctrine about legal hermeneutics considerably amplifies in connection with a translation into Russian of works of such foreign philosophers, as G.G.Gadamer, P.Rikyor, and active further working out of a hermeneutic problematics in the humanities. Since 1995 the quantity of the domestic researchers, dealing with problems of legal hermeneutics, gradually increases every year. To the XXI-st century beginning the domestic legal hermeneutics become dynamically developing direction of jurisprudence.
However, despite the big number of the works devoted to a problem of legal hermeneutics in domestic jurisprudence, till now a logiko-theoretical basis and conceptually-kategorialnyj the doctrine device it is developed insufficiently. Among modern researchers there is no unity of sights as concerning concept and the status of legal hermeneutics, and its structure, methods, etc. Within the limits of the modern doctrine about legal hermeneutics its such components as conceptually-kategorialnyj the device (concept, the status, structure and the maintenance of hermeneutic process) and the doctrine about methods interpretatsionnoj activity, are in a working out stage, there is an estimation of existing rules and receptions interpretatsionnoj activity in the right.
Proceeding from generalisation of various sights of modern domestic researchers, the legal hermeneutics represent a direction (doctrine) of jurisprudence with the tendency to formation new integrativnoj concepts hermeneutic pravoponimanija. Thus in structure of legal hermeneutics as dejatelnostnogo process allocate three consecutive elements: understanding, interpretation and application [414].
In the course of understanding it is obviously possible to allocate three stages of understanding: physiological, mental and social. The physiological stage of understanding defines ability to understanding as a whole; the mental stage defines possibility of comprehension of the personal text; the social stage of understanding forms comprehension of value of the text. Taking into account a principle of "a hermeneutic circle» understanding of the concrete text each time is concretised by the interpreter.
Understanding inseparably linked with the second element of legal hermeneutics – interpretation. The concept of interpretation is applicable only in relation to processes of purposeful semantic interpretation of legal texts. Interpretation assumes external activity, orientation not only to revealing of some sense, but also to a substantiation, the statement in other consciousness (including and in the). Interpretation has diskursivnyj, logically mediated character and is connected with a manipulation the senses not always coinciding with the internal text.
The problem of interpretation, concrete definition of legal instructions has the purpose realisation of rules of law. Application (including direct realisation of the right and pravoprimenenie) is the third element of legal hermeneutics. Application is compared with new higher level of understanding as for correct understanding of the legal text, it is necessary to interpret in each concrete case it in a new fashion.
Within the limits of the hermeneutic approach distinctions of concepts «interpretation (interpretation) of legal texts» and «right interpretation» are deduced. That represents itself as the text can be interpreted only, i.e. the connected sign complex "meaning-meant". In this case in the literature discriminate legal texts, i.e. the texts which have preskreptivnoe value and being the legitimate bases for rights and legal duties, and the text of the right, i.e. developed representations about the right which have received the is textual-language form of expression [415].
In a context of legal hermeneutics by consideration as object of interpretation of all phenomena of the legal validity, interpretation has a number of features. As process of knowledge of the legal validity, as well as any informative process, is directed on achievement of absolute true, in this case such explanation of sense of the legal phenomena with which help this purpose is reached will be close interpretation of the legal phenomena only. Leaning against the concept of a hermeneutic circle, it is possible to approve, that the absolute true in general is unattainable, therefore close interpretation of the legal phenomena does not exist [416].
For the characteristic of the present stage of development of legal hermeneutics in Russia ordering of types and ways of interpretation and the analysis of results interpretatsionnoj activity has independent value also. The variety of approaches to allocation of ways of interpretation in the Russian legal literature is represented result of wrongful mixture raznourovnevyh elements of system of methods of the interpretation which process of ordering is not finished now yet.
Except the above-stated, it is represented, that at the present stage of development of legal hermeneutics in Russia the essential characteristic of its condition is all the amplifying tendency to the further working out of legal hermeneutics with reference to various branches of law (constitutional, criminal, labour, etc.) [417]. The similar tendency should promote efficiency increase pravoprimenitelnoj experts, to growth of professional skills in legal sphere, and finally to increase of level of legal culture in our country.

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A source: Vasiuk Anastas Vladimirovna. HISTORY of OCCURRENCE And DEVELOPMENT of LEGAL HERMENEUTICS In Russia. The DISSERTATION on competition of a scientific degree of the master of laws. Moscow -. 2011

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