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§ 1. Concept of interpretation of the right in the light of modern philosophical hermeneutics

Understanding problem - one of important and vital topics scientific issleyodovanija. The requirement for dialogue, communications, mutual understanding is the property, a necessary condition of existence of the person in world around is immanent to the person.

The understanding theme arises already in an extreme antiquity at contacts of sorts and tribes among themselves, in speech dialogue. With the advent of writing and possibility of preservation and transfer of socially significant information in time and space it gets eternal obyoshchechelovecheskoe value. Questions of understanding, interpretation and an explanation are studied by many scientific disciplines: hermeneutics, logic and seyomiotikoj, psychology, history and other humanities. Our attention was involved with the hermeneutics investigating interpretation, i.e. that asyopekt understanding which is directed on comprehension of the semantic maintenance of texts. Interpretation of the legal phenomena is a component obshchefilosofyoskoj theories of interpretation of the phenomena of human culture. Interpretation of the legal phenomena, hence, - one of means of achievement of their understanding. During the Soviet period of domestic history of a problem of interpretation of the right isyosledovalis in a channel only the Marxist concept of knowledge. The knowledge saved up by the western philosophical science in many respects remained nevostrebovannyyomi. So has occurred and to hermeneutics. Its gnoseological potential dostayotochno is great also possibilities of its use in jurisprudence represent doubtless interest. The given circumstance also has predetermined a choice ukazanyonogo directions of the analysis of interpretation of the right in the light of its interrelation with filosofyoskoj hermeneutics.

The term "hermeneutics" in a translation from Greek means "explaining", "interpreting". Its origin traditionally connect with a name

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Greek god Hermes, the bulletin of gods, the patron of travellers to whom attributed the language and writing invention.

The word is a sign and an intermedium, therefore initial statement of hermeneutic questions is in a close connection with development of grammar, rhetoric and logic. Besides, also practical requirements of pedagogics as in sphere of the Greek erudition it was a question about istolkoyovanii homeric poetry at schools here affect. Transition from an obshchinno-patrimonial system to ranneklassovomu to a society, philosophy and science formation promoted occurrence of new outlook that has led to alienation and ischeznoyoveniju obshcheponjatnosti the classical poems of the Homere containing in them of myths and images. Scientific minds of that time searched in national poems certain hidden (allegorical or moral) for sense. So, in a problem of search of "deeper" layers of sense - "moral" and "physical", from the end of VI century BC was engaged Feagen from Regija. Metrodor from Lampsaka (330-277 BC) schiyotal gods the image of various displays of material essence of the world: the earths, waters, air, fire. It was the period of "allegorical" interpretation. Growth of contacts between ancient cultures and language regions, obrazoyovanie common languages - Greek, Latin, partly arabskoyogo, have put forward a transfer and comment problem.

The Greek sophists - uchiteyolja and formation carriers - continued business of the first "ekzegetov" (tolkovateyolej), connecting questions of hermeneutics with theoretical questions jazykoznayonija and verbal expression. There was a new variant of interpretation - "gramyomaticheskaja". Along with representatives of antique rhetoric (TSitseron, Kvinti-lianas, etc.) and great Alexandria philologists (Kallimah, Feokrit, Apollony Rodossky, Leonid Tarentsky etc.) Sophists have developed realyonyj philological and historical approaches to product with application of grammatiko-rhetorical sights at language, style, a literary composition, system of metaphors and poetiko-rhetorical receptions, etc. Here the language party of understanding and interpretation for the first time has been allocated and underlined. NakoYOnets, Aristotle has already special composition «About Interpretation», where

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Hermeneutics problems are considered in logic light, i.e. it is a question, first of all, of logic forms of judgements from the point of view of their validity or lozhyonosti.

In the Middle Ages the hermeneutics are applied to interpretation and an explanation of the Scriptus and unlike antiquity are formed as samostojayotelnoe the doctrine, but as discipline auxiliary, office on otyonosheniju to divinity. During the given period dominated allegorical inyoterpretatsija, leaning against ideas of antique rhetoric.

Renaissance has proclaimed the motto «To sources!» Also stimulated revival of interest to antique methods of interpretation. Almost simultaneously at faculties of the European universities the problem most efyofektivnogo and a lawful method of interpretation is put, and are formulated it praviyola.

In New time there are systems of doctrines about principles and means istolyokovanija - philological, legal, medical, theological germeyonevtiki.

The turning-point in hermeneutics development begins with the end of XVIII century when it began to be guided by philology as on a historical science and is reconstructed as historical researches (I.A.Ernesti, F.Ast). ToYOgda the first attempts of association of special doctrines in ediyonoe the doctrine - the general hermeneutics (I.K.Danngauer, I.M.Hladenius, G.F.Mejer) took place. However it was possible only to F.Shlejermaheru who gives to hermeneutics serious philosophical value, strongly connecting it with the general problem of understanding.

On a boundary of 20-century V.Diltej expands logiko-philosophical trakyotovku hermeneutics, giving to it the status of methodology of the humanities. It considered understanding as «process in which we from sensually given signs comprehend internal», 1 and hermeneutics - as art istolko -

1 Modern philosophical dictionary. Moscow, Bishkek, Ekaterinburg. 1996. With. 104.

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vanija written monuments, i.e. the most universal displays cheloyovecheskogo spirit.

After Dilteja the philosophical hermeneutics worry decline and vozrozhdayoetsja in the West, in essence, only in the early sixties of the XX-th century with the advent of G.G.Gadamera's book «True and a method» (1960г.). Since this time, geryomenevtika it is quite often considered not only as a method of the humanities, but also - preuvelichenno, - as an optimum way of development of a modern science voyoobshche. During an epoch of blossoming of interest to hermeneutics in 60-70th years fruitful development it has received in works G.Kuna, K.O.Appelja, J.Habermasa, M.Franka (Germany), E.Betti (Italy), E.Koreta, E.Hajtelja (Austria), D.Hoja, R.Bernstein (USA) and of some philosophers of other countries.

Sense and understanding problems faced to set of sciences and tvorcheyoskih persons throughout human history. They were considered both domestic, and foreign researchers. At the same time prihoyoditsja to establish the fact, that a close connection between them and joint isyopolzovanija the received results for change public prakyotiki now it is not reached yet. «nerazrabotannost problems poyonimanija speaks absence of ordering in the theory of sense which, in turn, is caused by that last is usually considered in a separation from an understanding problem»; 1 «the central point of a problem of understanding is search of the sense chosen from a number of arising alternatives».

First of all, it is important to formulate substantive provisions, around kotoyoryh polemic develops and finds out the existence an original field of understanding and sense.

First, the understanding is a problem not only knowledge, but also lives. In classical foreign hermeneutics these two aspects accurately got divorced. Gnoseological measurement of understanding and (or) sense is presented by works domestic (V U Grandmother's, P.P.Gajdenko, V.A.Lektorsky,

1 Gusev S.S., Tulchinsky G.L.Normativno-tsennostnyj the-valuable approach to an understanding problem//Understanding as logiyo to-gnoseological a problem. Kiev, 1982. СЛ55.

2 Lurija A.R.language and consciousness. M. Д976. С.218.

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A.L.Nikiforov, A.I.Rakitov, G.I.Ruzavin, G.Shpet, etc.) and foreign (V.Diltej, G.Kun, S.Tulmin, Z.Frejd, F.Shlejermaher etc.) Scientists. Ontoyologichesky "cut" of a problem of understanding (sense) was mentioned in issledovaniyojah I.S.Alekseeva, V.G.Fedotovoj, M.Vebera, G.G.Gadamera, J.Habermasa, M.Heidegger, etc. E.Gusserl occupies in this number specific polozheyonie. Considering a question on sense, basically, in kognitivnom and pertseptivyonom measurement, it was «one foot» in the knowledge theory. At the same time, having formulated the thesis that «any question on life is a question on understanding of life», E.Gusserl has created necessary preconditions for some kind of ontologic turn in sphere of the hermeneutic theory which has been carried out subsequently by its pupil - M.Heidegger. It is possible vydeyolit the analysis of a problematics of understanding on absolutely other, "subject-subject" level, i.e. the dialogical understanding in human otnosheniyojah, for example, M.Bahtina.1 is unconditional, the specified theme has found expression to some extent in works and other scientists in the field of philosophy and concrete наук.2

Secondly, the understanding has general scientific character. It is present in natural and the humanities and cannot sharply be contrasted with an explanation on what V.Diltej insisted. If in structure humanitarian znayonija the understanding is a result of decoding of the semantic maintenance of the text or other result of human activity, 3 that the understanding problem in esyotestvoznanii acts mainly as understanding of sense and znayochenija terms which appear in natural-science теориях.4

The understanding problem in the Soviet right has received rather poor, nebogayotoe illumination. It is obviously possible to speak about her life in shape teo -

1 Bakhtin M.M.Tvorchestvo Francois Rabelais's works and national culture of the Middle Ages and the Renaissance See. M, 1965; Problems of poetics of Dostoevsky. M, 1974; the Aesthetics of verbal creativity. M, 1979.

2 Buber M.Dialog//Two images of belief. M, 1995; It. I and You. M, 1993; Voloshinov V. I. Philosophy and sotsioloyo gija the humanities. SPb., 1995; Casper V Das dialogische Denken. Freiburg, 1967; Rozenshtok-Hjussi O.Rech and the validity. M, 1994; Rosenzweig F. Der Stern der ErlQsung. Frankfurt an Mein, 1988.

3 Lecturing V.A.Mezhdistsiplinarnyj and the philosophical approach to an understanding problem//Questions filosoyo fii. 1986. № 7. С.66.

* Ruzavin G. I. Understanding as communicative activity//philosophy Questions. 1986. № 7. С.76.

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rii interpretation of rules of law. In other words, jurisprudence sovetyoskogo the period the questions connected with concept and the nature tolkoyovanija of the right, and the last interested, in turn, was object steadfast vnimayonija official state-legal ideology. In researches on the general theory of law it was noticed, that interpretation of rules of law is necessary in tseyoljah correct and uniform understanding, exact and steady primeyonenija them in everyone concrete случае.1 the Understanding of the right served as self-evident "transfer" instance on a way of realisation of results poznavayotelnoj to activity in a scope and other forms of realisation of the right. As to an explanation in the right this problem as a whole was monopoliyozirovana official ideology, feeble attempts samostojayotelnogo took place, the independent analysis of the theory of an explanation of the legal phenomena to find the answer to a question «why?», «what reason?» Acceptances of those or other decisions in economy, the politician, social sphere and culture. The formula «interpretation-understanding - application» replaced wider philosophical scheme «inyoterpretatsija - understanding - an explanation». Meanwhile already here it is possible to see a generality of an object of research of hermeneutics and the theory of interpretation of the right-it questions of sense of rules of law, their understanding and, in the facultative plan, explanations. The subjects considered in the general theory of law have been directly connected with a problem background philosophical germeyonevtiki. From the point of view of interpretation, understanding, application and objasyonenija the rights the general direction of movement of the given scientific disciplines is traced. At the same time positions of the general hermeneutics cannot be isyopolzovany jurisprudence in their most abstract form. Their reinterpretation with the account of a specific subject of jurisprudence and features of construction of structure of legal texts is necessary izvestyonaja.

First of all, "related" relations of hermeneutics with problems of interpretation of the right are expressed in a special-purpose designation informative the figure -

Nedbajlo P. E. Application of the Soviet rules of law. M, 1960. С328.

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nosti the subject. The establishment sushchestvujuyoshchego sense of the phenomenon (the rule of law, legal relation, the right or a duty, the text of the legal textbook etc.) or sense creation in cases of its ambiguity, privnesenie unities in understanding of process, the phenomenon by investment with their certain value for the person, collective and obshcheyostva can be the interpretation purpose. The initial theoretical preconditions forming features of rum-but-German and Anglo-Saxon legal systems, associate with vysheizyolozhennymi representations about character and value of interpretation in the right: or with the general for all sense, obektivirovannym in regulatory legal acts - laws, decrees, instructions, etc., or with sense, empirically rozhdaeyomym from public practice.

In the domestic philosophical literature two concepts of understanding - mastering смысла1 and giving, "attributing" smysyola, 2 however the authors supporting idea of "attributing" of sense have gradually stood apart, recognise presence and a social role of the concept of "mastering" of sense, its function pereyodachi to generations of the saved up spiritual experience человечества.3 In foreign philosophical hermeneutics, on the contrary, the perception of a problem of understanding as usyovoenija any ready sense in advance fixed by the author was hayorakterno for its initial stages (F.Shlejermaher, V.Diltej). As the new informative result generated active dejayotelnostju of the subject, it is possible to find out understanding of sense in late hermeneutic works the-doctrine about konstituirovanii objects of consciousness of E.Gusserlja, the sense concept

1 Lecturing V.A.Subekt. Object. Knowledge. M, 1980; Crimean SB. The filosofsko-gnoseological analysis of specificity of understanding//Understanding as a logiko-gnoseological problem. Kiev, 1982. S.24-43; Ruzavin G. I. Hermeneutics and a problem of interpretation, understanding and an explanation//Questions философии.1983. № 10. С66; Brudnyj A.A.understanding as a filosofsko-psychological problem//Questions философии.1975. № 10. С.1П; popovich M.V.Ponimanie as a logiko-gnoseological problem//Understanding as a logiko-gnoseological problem. Kiev, 1982. S.5-23; Gevorkyan G. A. About an understanding problem//Questions философии.1980. № 11. С.123.

2 Nikiforov A.L.semantic the understanding concept//explanation and understanding Problems in scientific poznayo nii. M, 1982. С.5,52,53; It. The semantic concept of understanding//Researches according to the logic of scientific poznayo nija. M. Д990. S.4-18; It. About understanding of human activity//explanation and understanding Problems in scientific knowledge. M. Д982. С.125,127; V.I.Ponimanie's Smiths as konstituirujushchy the development factor fiziyo cheskoj theories//Understanding as a logiko-gnoseological problem. Kiev, 1982. S.43-69; Gusev S.S., Tulchin - sky G.L.Ukaz.soch. С.154.

3 Nikiforov A.L.semantic the understanding concept//explanation and understanding Problems in scientific poyo knowledge. M. 1982. С.51.

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M.Heidegger's lives, theory of interpretation of the text as carrier of cultural tradition of G.G.Gadamera.

The similar problematics is obviously traced and in attention of hermeneutics and the theory of interpretation of the right to certain receptions and knowledge means smysyola the cultural phenomena (and legal texts). It is important to notice extremely inyoteresnoe circumstance, that the philosophical hermeneutics have generalised achievements of antique rhetoric, medieval theological hermeneutics, filologicheyoskoj hermeneutics of Renaissance and have formulated a number general prinyotsipov interpretations of texts among which it is possible to allocate a principle «tseloyogo and parts» (understanding of sense of the text probably as a result of explanation of sense of its separate parts, and the understanding of a part is caused by some predvayoritelnym understanding of uniform sense of the text as a whole), a principle of understanding told by the text proceeding from that concrete situation in which the statement has been made, a principle of understanding of the text proceeding from it, a "productive" principle (concrete definitions of the maintenance of the text for understanding of features of an individual vital situation) and другие.1 These principles set rules of interpretation of texts. It is necessary to specify and in communication presence between them and known ways of interpretation of the right, developed and priyoznannymi in domestic jurisprudence. So, for example, constituting osyonovu practically all doctrines about hermeneutics the principle «whole and parts» or «a hermeneutic circle» can be characterised as the certain logic cover making "set" of valuable receptions and means usvoeyonija of sense of rules of law. The grammatical interpretation of the text of the legal act, nayopravljajushchee attention pravoprimenitelja on the analysis of its written speech sozyodatelja, is interfaced to explanation of sense of separate words, word-combinations and offers, common and technical terms and turns of speech, that in turn helps to constitute total representation about the general sense of the rule of law concluded in the legal text. At the same time

1 Diltej V.Opisatelnaja and analytical psychology. M, 1992; Heidegger M.Bytie and time. M, 1993; G.G.Istina's Reptile-measures and a method: bases of philosophical hermeneutics. M, 1988.

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Research of sense and value of concrete terms and offers predpoyolagaet expansion in consciousness of a preliminary projection of sense of all tekyosta, representing itself as the answer to our expectations or in the form of the worker giyopotezy about sense of the rule of law which is coming under to check in a course interpretatsiyoonnoj of activity of the person, applying the right. Sometimes the definitive sense of a legal status becomes clear as a result of the reference to its place and communications with other positions in normative act structure, in given otyorasli or the legal system as a whole. From here it is obviously possible sravniyovat norm with separate unit of an is standard-legal matter, i.e. normayotivnym the instruction, and to consider its component certain whole - the normative act or legislation system. Certainly, opeyorirovanie a principle «whole and parts» does not carry character obligatory, neyopremennoj installation of consciousness of the person which should be realised always. In each concrete case the general sense of the rule of law is found out by isyopolzovanija more concrete tool receptions and the rules of knowledge constituting the maintenance of a separate way of interpretation of the right, known the domestic theory of interpretation of rules of law - grammatical, sisyotematicheskogo, istoriko-political, logic, teleologic (tseleyovogo), functional, etc. However its rather independent metoyodicheskoe value allows to include it in number of the initial basic moments which are primary regulators of behaviour pravoprimeniteyolja during process of interpretation. Together with other principles interpretayotsii texts the idea about «whole and parts» forms the original starting line located in deep layers of consciousness of the person, giving powerful spur to use of specific ways of knowledge of sense of the right. Thus ukayozannyj the principle details the maintenance in the listed ways inyoterpretatsii and continues to exist in a kind kvaziuniversalnogo logicheyoskogo the bases of application of separate receptions, means and rules of understanding of rules of law.

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The principle of interpretation demanding «to understand told by the text proceeding from that concrete situation in which it has been made vyskazyvayonie», 1 in an equal measure it can be considered in interpretation of legal texts, vyyostupaja in steam, for example, with historical way of interpretation. It predpolayogaet acceptance in attention of the general history of occurrence of the law (other normayotivno-legal act), exits to motives by which were guided sostayoviteli the law and actually "legislator" - meeting, parliament, and even soyovokupnost having the right to vote citizens. « If sense of words, interrelation of values and a logic coordination of legal statuses... Still leave space to various interpretation then there is a question what of them corresponds to representation which the legislator has connected with the expression chosen by it ».2 It means that sometimes for understanding of value prayovovoj norms important to address in the past and to estimate conditions of its"exit"to the public. Standard representations of composers of the law and intention actually the legislator can be borrowed as from direct authorities - parlayomentskih messages, substantiations of authors of offers or bills, expert opinions etc., and from indirect sources - the economic and social relations, which composers of the law had before eyes, aspirations to reforms from the legislator, a previous condition of the law and order, a condition of legal science, a way of thinking and a way vyrayozhenija времени.3

The principle of understanding of the text proceeding from it has appeared in germenevyotike as the brightest embodiment of the thesis of Aristotle about the only thing sposoyobe thinking expressions - language. Language studying in general, especially pismenyonogo language - texts, was one of its main problems. The early hermeneutics, therefore believed, that all thoughts and ideas of the author of the text can be found and learnt within the limits of the most written product of human art. In sovreyomennoj to legal practice the given principle is completely carried out not

1 Gadamer G.G.Istina and a method: bases of philosophical hermeneutics. M, 1988. С395.

2 Larenz K Methodologie der Rechtswissenschaft. Ttibingen, 1969.S.3O8. ' Tamzhe. B.ZP.

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In all cases of interpretation of the right. As the phenomenon normotvorcheskoj tehyoniki obliges to a simple, laconic statement of legal instructions and a choice of means of a natural language approaching for it, is frequent rasprostrayoneny situations of a formulation of legal texts in multiple-valued, sinoyonimichnyh, having semantic shades, expressions. The thought of the author of the text (the legislator or other normodatelja) can be understood not so much by poyogruzhenija in internal structure of the text, how many with the help ispolzovayonija external sources legal (comparative interpretation) and sotsioloyogicheskogo, economic, demographic, other character (istoriko-political, functional interpretation). The Grammatical interpretation is clear, consistently formulated and logically consistent pravovoyogo the text quite keeps within the scheme similar "philological" printsiyopa interpretations with reference to right area. It allows to find and prayovilno to understand sense of the text in limited "own" space tekyosta.

The modern philosophical hermeneutics which have received an impulse to a new coil of the development in the sixties, in person G.G.Gadamera closely adjoin problems of interpretation and right application thanks to introduction by it in germenevyotichesky a lexicon of the term "application" or "application". Unlike F.Shlejermahera and V.Dilteja he considered, that a condition (precondition) of understanding - not "equation" istolkovatelja and the author of product, statement of the first to the place of the second, and «merge of horizons» (i.e. historical situations of that and druyogogo). « The horizon »istolkovatelja possesses mobility, variability, extends for the inclusion account in itself original, entirely defined by a corresponding spiritual situation,"horizon"of the author of product. obyorazuetsja new,"general"horizon. An understanding basis, thus, - not neyoposredstvennoe past and present merge, and the mediated relation of the past and the present at which remain their specific osobenyonosti. Extrapolating this idea on soil of the legal validity, it is possible to see, that contrast removal between the law ("earlier created"

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Culture product, "past") and a concrete vital case ("danyonym" the life moment, "present") becomes real not as a result of overcoming of a historical distance between them, statements istolkovatelem itself to the place of the author of product (legislator), and during preservation of this distance and "application", i.e. correlation of the maintenance of the text with myslitelyonym experience of modern culture. Here means "primerivanie" soyoderzhanija the normative act, first of all the law, to isolated facts sovreyomennoj lives or to a certain experience of usual behaviour of people in cheloyovecheskom a hostel. G.G.Gadamer approves unity of understanding, istolkovayonija and "applications" ("application"). In the specified part it it is sharp disyotantsiruetsja from former hermeneutics in which these aspects of understanding accurately got divorced. « Interpretation is not any separate certificate, backdating and as required supplementing understanding; the understanding always is istolkovaniyoem, and this last accordingly an essence the explicit form of understanding ».1 Process of interpretation appears in the form of an explanation and (or) explanations smyyoslovogo measurements of the text of the rule of law, but the understanding osushchestvyoljaetsja as a result« applications is definitive "." Application is not the appendix to konyokretnomu to a case certain general which has been initially given and understood in itself, but application and is the valid understanding most vseobshcheyogo which the given text is for us. The understanding appears it come dejyostvija (Wirkung) and learns itself as that ».2 In the given foreshortening as it is paradoxical looks, the general scheme of understanding of G.G.Gadamera in many respects coincides with the Marxist-Leninist concept of knowledge presented in the formula« from live contemplation to abstract thinking, and from it - to practice »as the understanding vector has following reference points:"preunderstanding"(intuition) -« direct understanding », reading and oznayokomlenie with the text (sensual knowledge) -"interpretation"(rational, theoretical knowledge) -"application"(practice,"practical"ponima -

1 Gadamer G.G.Ukaz.soch. С.364. 2Тамже. С.402,403.

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nie). In G.G.Gadamera's theory the understanding acts universal filosofyoskim as a research and world view method, revealing in various byyotijnyh forms. However it is necessary to allocate and weaknesses of such treatment of understanding in the field of the right. The German philosopher too sharply differentiates sensual and rational components of knowledge, defining for each of them the place. However process of development by consciousness of world around neodyonoroden and neodnoobrazen. The interrelation and interaction empirical and teoyoreticheskoj the parties of informative activity are embodied in them proniknoveyonii each other. Even process of explanation of sense of the rule of law, nachinajuyoshchijsja from visual acquaintance with its text, is not limited iskljuchiyotelno to reception of visual sensations from perception of separate signs and their groups, and accompanied by some minimum, or preliminary comprehension, logic correction spontaneously arising in thinking pravoprimenitelja the "versions" of sense based on initial chuvstvenyonyh of data. Other ways of interpretation of the rules of law, allocated otechestyovennymi scientists, in the application lean against the moments which have been found out during repeated "reading" of their maintenance, i.e. actually on promeyozhutochnye and adjusted totals of sensual (visual) knowledge. Strictly speaking, the insufficient attention to internal communication of both elements chelovecheyoskogo knowledge is cast by tradition, pocherpnutoj G.G.Gadamerom from F.Shlejermahera who allocated unartful ("direct") poniyomanie and the understanding reached thanks to skilful receptions (interpretayotsiju). But G.G.Gadamer has deduced understanding on a new step - practical reayolizatsii sense of the text in an individual situation of work with it, whether it be samoobrayozovanie, public training, and, certainly, official activity gosuyodarstvennyh bodies on application of rules of law to individual zhiznenyonym to circumstances.

The most significant and at the same time disputable moments modern germeyonevticheskoj theories are traced in an orientation of process of understanding of rules of law and the jural significance of results of their interpretation. As from -

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vestno, continental and Anglo-Saxon legal systems act soyoputstvujushchimi each other as spheres of the legal validity in internatsioyonalnom scale. Division of these legal systems is based on sovokupnoyosti criteria, the leader from which is primary value and distribution in pravoprimenitelnoj to practice of this or that source of law, accordingly, the law or judicial (administrative) precedent. Certainly, it does not belittle social functions of legal customs, religiozyonyh representations, etc. In traditions of domestic jurisprudence, mainly the Soviet period, the problem of understanding of sense of rules of law was analyzed in a channel normativizma; in hermeneutics is a concept of "mastering" of the sense, created in much its founders, in the end of 18-beginning of 19 centuries. The modern philosophical hermeneutics concentrating the informative potential in the basic G.G.Gadamera in ideas, try to find "golden mean" of a theme of understanding and sense, concerning legal life of a society. It is thought, that filoyosofa with an identical share of success it is possible to find the justification or a substantiation of all concepts in theoretical constructions of German pravoponimanija, including sights at interpretation pravoyovyh norms. The understanding, on G.G.Gadameru, is aimed not at extraction of author's sense, and on disclosing of the maintenance of the "business" shown in the text. For it prinyotsipialnym as circumstance that the person "working" with the text, accordingly and the person applying the rule of law, should aspire otdeyolit the opinion of the legislator which has taken the form «author's sense», and obekyotivnuju public requirement to regulate the public relation in one way or another that is dictated by requirements of a today's life acts, differently - the "business" which is somewhere in depth, a kernel of the whole text. From the point of view of the standard theory pravoponimanija if the legislator has correctly and adequately understood true social requirement of legal regulation of typical situations the "business" finding means simultaneously knowledge of original will of the legislator, and as a result explanation of sense of the rule of law created by it. However when the legislator incorrectly, partially, or,

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Figuratively speaking, has "badly apprehended real social needs, normati-vistskaja the understanding scheme starts to give"failures". It is long obsuzhyodaemoj throughout decades a theme of scientific researches and prakticheyoskih management questions. Really, really there can be a stone preyotknovenija for lawyers a question: what to do, when the law"is bad", and spravedliyovost and practice as a whole demand to answer on the case which has arisen in a life? Logically developing G.G.Gadamera's initial thesis about purposes poniyomanija, quite probably to come to conclusion about presence at the right interpreter to be guided by"business", to solve a legal incident reasonably and spravedliyovo, according to objective interests of society, and practically - vneyosti in the law such clearness and definiteness at which it as though"gives"otyovet on the specified incident and in a condition will be offered by the answer to the similar questions, set to it practice. In other words, durability normativizma is based on ideology of the "clever" legislator which is ubiquitous, postoyojanno watches changes in a public life and in due time, adequately improves the current legislation. For today's practice of work Russian pravotvorcheskih it is faster than bodies desirable result, than reflexion of a real state of affairs. On the other hand, long otyosutstvie appropriate reaction of the legislator to practice requirements pravopriyomenenija brings on the agenda the second attention to the question: whether it is possible and in what degree according a right to the interpreter-pravoprimenitelju to understand "business" and, being based what the life «beats in bells» to generate new sense in the form of a rule of behaviour for the given type of cases as the expected answer to daily rising incidental points of legal practice? This party of the theory of understanding of G.G.Gadamera deduces the analysis in sphere of "pure" precedent. She, in turn, allows to estimate the legislator as helpless "rayoba" the circumstances, forced on bondage to appeal to pravoprimenjaju-shchim to bodies; the legislator becomes on the subordinated place, and the last-are put forward forward. In a problem of understanding of G.G.Gadamer intertwines also with other idea - dialogue or hermeneutic "conversation" between interpretato -

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Rum ("I") and the text ("You") As, however, the text not is a live organism, he on itself does not speak, "does not know", that can suggest about obekyotivnyh public requirements of legal regulation, open its this potentiality the interpreter is called. The text gives language expression certain "business", but that it is possible to it, - an interpreter merit. This G.G.Gadamer underlines, that both parties participate in dialogue. He tries to leave from odyonostoronnosti concepts of "mastering" of sense with the passive subject interyopretatsii, to subordinates to its search, and to the concept of "attributing" of sense with the superactive subject of interpretation making with sense what to it it is necessary for operation. But the resulted reasons testify nevertheless to G.G.Gadamera's accent mainly on activity of the interpreting subject. Therefore in the field of the right modern philosophical hermeneutics dayoyot rather big "list" towards Anglo-Saxon legal system - prayovovogo precedent and the discretion pravoprimenitelja though its own vnutyorennjaja the logic of a narration does not exclude, and assumes integration normayotivnyh representations of the romano-German school.

Overcoming of unjustified silence pravotvorcheskogo body, vyzvanyonogo complexity, heterogeneity of social relations or tehniko-legal "rashness" in G.G.Gadamera's hermeneutics, in printsiyope, is possible on a way of a formulation of judgement about the new rule of behaviour dictated by process of separate spheres of a public life. A variant at which the interpreter-pravoprimenitel would go a "business" essence, shvayochen in domestic general theory of law at analogy institute, in particular analogies of the right. The idea that in the absence of the law regulating the relation given or similar to it, it is necessary to make the decision on the basis of general principles and sense, principles and the purposes of this branch of law, or the legal system in general, represents the answer to a question put vital obyostojatelstvami and in parallel discussed in a hermeneutic current of philosophical thought. Owing to wider problem context filosofyoskaja the hermeneutics look further the theory of overcoming of blanks of the positive

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The rights also leaves on boundaries when even general principles and sense, "spirit" konkretyonoj branches of law as a whole can mismatch, not meet requirements of legal practice, examples to that the Supervising beginnings on ugoyolovnomu serve the right of RSFSR 1919г., the Criminal code of RSFSR 1922г. In the late fifties the-beginning of 60th years, or Bases of the civil legislation of the USSR 1961г., calculated on action in the conditions of a planned economy and gosudarstyovennoj properties, at their application in the late eighties in connection with nameyochennymi market transformations to the country. In such cases the problem of social effect of application of the right rises most sharply. The desire to go to «one foot» involuntarily made the way in due course on pages legal liyoteratury, but has been veiled for the ideological reasons. The thesis of Century And. Nikitinsky about «duties of vessels on overcoming time protivoreyochy in the legislation» restrained their duty of the subsequent byyostrogo messages on it to a legislature for the purpose of acceptance nezayomedlitelnyh measures on updating standard акта.1 At the same time nayoprashivaetsja interpretation of its thought in the spirit of fair pravoprimenenija, answering to "the nature of things» and inquiries of a life. Other researchers the theme of the law and requirements of social development refracted through a prism of an estimation of legality of standard and individual certificates and necessity of the constitutional control, that also mentioned a principle справедливости.2 In today's conditions when pravotvorcheskaja activity should react actively to changes in economy, social sphere and culture, a role zayokona increases, but together with it the role pravoprimenitelja increases also, priyozvannogo at times to overcome the named contradictions of the right and material conditions of a life of people. Specificity Russian politiko-legal dejstviyotelnosti demands much of the official interpreting the right with a view of its application. He should choose between two "fires"-solve lawfully, but it is unfair, or it is illegal, but it is fair. Thus

1 Nikitinsky V.I.Preodolenie of contradictions in the legislation in process pravoprimenitelnoj dejatelyo nosti//the Soviet state and право.1983. № 2. С18.

2 Malein N.S. About justice of the Soviet right//the Soviet state and право.1983. № 10. С68.

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The standard understanding of the right and influence pravoprimenitelnoj systems zayostavljajut in most cases to be declined towards "unfair" zayokona in spite of the fact that the given choice hides the certificate of deeply thought over, internal personal position of the official. Therefore it is possible to recognise, that the hermeneutics are in a channel of eternal and essential problems of legal science and practice and modify the common cultural field in the right. VzaimoYOotnoshenija hermeneutics and legal interpretation are characterised as communication of the general and private at which right interpretation appears in a kind osoyoboj the version of informative activity of the person directed on search of sense of the legal phenomena and processes, objectively obuslovlenyonogo by requirements and needs of public practice and, as a rule, finding adequate expression in norms operating zakonodatelyostva. The given philosophical current has flexible, expanded system poyolozheny, supposing inclusion in it of various ideas, sights and predstavyoleny on the right and operations with it, from which number objects of the analysis vystuyopajut its interpretation and application.

Hermeneutic consideration pravoprimenitelnoj activity and interpretation carried out in connection with it in modern Russia allows vozmozhyonost to speak to a certain extent about value increase pravoprimenitelyonoj experts for standard regulation of public relations. OsYOnovnym a site of influence of its informative potential for a social life is the permission of concrete legal affairs according to principles of humanism, justice and democratism that is indisputable aktuyoalno during the periods of a cardinal public reorganisation. Achievement by a society of a steady, stable point of development means realisation geryomenevticheskih aspirations of the legislator to "business" - correct and svoevreyomennomu to satisfaction of "legal" requirements of a society - and, sledovayotelno, an eminence of the standard theory of interpretation and right application, usiyolenie actions of a principle of legality as ideal of a human civilisation.

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From here it is necessary to recognise, that modern philosophical hermeneutics javyoljaetsja filosofsko-logic base of the theory of interpretation of the right that means:

1. The hermeneutics have developed system of general principles of interpretation of texts which can be used in the course of interpretation juridicheyo skih texts.

2. The hermeneutics have generated some models «preliminary both times» decisions of legal business - methodological and informative priyoyo we allowing by mutual specification and a concrete definition of knowledge about fakyo tah and rules of law correctly to resolve legal business.

3. The hermeneutics have formulated concept of interpretation of the right as special version of the informative activity accompanying process cheloveyo cheskogo of life in the jural sphere of a public life. The given sight can enrich our representations and help to look in a new fashion at traditional problems of interpretation of the right.

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A source: GAVRILOV Dmitry Anatolevich. LAW ENFORCEMENT. Thesis for the degree of candidate of legal sciences. Volgograd - 2000. 2000

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